352
Stevens, J., dissenting
read to give effect to those concerns, but it need not be read more broadly. A sensible test for prohibited discrimination—focusing on whether the protected class is being treated substantially less favorably than most similarly situated persons—would leave the States room to employ exemptions without falling afoul of subsection (b)(4).
As amicus the Solicitor General suggests, a discrimination standard allows the States to impose disparate tax burdens when the disparity is supported by some legitimate difference between the exempted nonrailroad property and the taxed railroad property.4 In my view, an exemption for a small minority of the resident taxpayers would not warrant a conclusion that prohibited "discrimination" has occurred. See Davis, 489 U. S., at 819-823 (Stevens, J., dissenting). Because subsection (b)(4) merely protects railroads from discrimination, rather than conferring on them a right to be treated like the most favorably treated taxpayer, a violation would not be established when the tax paid on railroad property is not materially greater than the tax imposed on most comparable property.5 But surely a tax imposed on rail carriers is not saved from discrimination merely because some other kind of enterprise (e. g., motor carriers) is also subject to taxation.
The evident purpose of this part of the 4-R Act, as the Court recognizes, is to protect a class of interstate enterprises that has traditionally been subject to disproportionately heavy state and local tax burdens. This is an area in which state authority has always been circumscribed, most
4 A State might, for example, be able to defend an exemption by showing that the exempted class was subject to an equivalent tax to which railroads were not.
5 For similar reasons, the Court of Appeals erred when it held that the remedy for a discriminatory exemption scheme is a refund of the entire tax paid by the railroad. See 961 F. 2d, at 823. To remedy unlawful discrimination under subsection (b)(4), a State need refund only the difference between the tax collected from the railroad and the average tax imposed on owners of comparable property.
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