Winn

joins, dissenting from denial of rehearing en banc:

The decision in this case sharply limits the traditional restraints on federal judicial interference with state tax systems and is in conflict with the position of the Sixth Circuit. Despite the Tax Injunction Act and federal common law on comity to the contrary, the panel held that a federal court has jurisdiction to declare a state tax statute unconstitutional and enjoin its application, so long as the effect of the judgment would be to cause the state to collect more revenue rather than less.

The Arizona statute at issue grants a tax credit of up to $500 a year for taxpayer contributions to “school tuition organizations.” 1 This is similar to tax deductions for contributions to nonprofit schools, except that it is a credit against taxes owed and not merely a deduction from income subject to taxation. The credit can only offset taxes; no check is mailed by the state to the taxpayer or anyone else. 2 The panel manifested concern that taxpayers *912 were claiming most of the tuition credit for tuition they paid to religious schools.

The Tax Injunction Act says: “The District Courts shall not enjoin, suspend, or restrain the…

ORDER

A judge requested a vote on whether to rehear this matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. RApp. P. 35. The request for rehearing en banc is denied.