Attorneys for Ohio Drum Satellite Providers

Lawyers for Ohio accused a pair of satellite TV companies Thursday of concocting a wild theory of business law and shopping it from court to court to escape a state sales tax imposed on their industry in 2003.

In a strongly worded brief to the Ohio Supreme Court, the state argues that DirecTV Inc. and EchoStar Satellite Corp. have no legal grounds for escaping the tax, which they are fighting because it wasn't imposed on their cable competitors.

A loss could be costly for the cash-strapped state, which is collecting $44 million a year in satellite sales taxes. John Kohlstrand, a spokesman for the Ohio Department of Taxation, said if it isn't victorious, Ohio probably will be required to return taxes it has collected from consumers over the years.

But the state noted that five state and federal courts have so far agreed with the state in similar cases.

"Because the satellite companies' argument is so outside mainstream Commerce Clause jurisprudence, they have shopped their 'fool's gold' from one state and federal jurisdiction to another and found no buyers...," the filing on behalf of state Tax Commissioner Richard Levin said.

"There is no reason — let alone a compelling one — why this Court should give them any further deference in entertaining the argument yet again," they said.

The satellite companies' basic legal argument is that subjecting them and not their cable competitors to the 5.5 percent sales tax violates their rights to interstate commerce, because their companies operate between states and cable companies operate within them.

"The central question in this case is whether the discrimination against satellite TV customers violates the Commerce Clause, because imposition of the tax is triggered by whether or not a business builds an extensive infrastructure within Ohio," the companies argue.

In Thursday's filing, state attorneys painted their opponents' argument as absurd.

They said it is based on a "'ground vs. outer-space' hypothesis" that ignores the fact that the U.S. Supreme Court has repeatedly held that the Commerce Clause "does not protect one interstate business from another regardless of the technology utilized that may cause one business to have more infrastructure in one location than another."