STATE TAX KNOWLEDGE UPDATE (53 ITEMS) - AUGUST 3, 2018

The following are state tax and business developments I have curated since July 3rd, and posted in the LEVERAGE SALT LinkedIn group:

Some of the items may be on the same state/issue/topic, but they are from different sources which may give you a broader perspective to help your company or client.

  1. New Jersey Closes Loophole, Increases Multi-Millionaires Rate

  2. Alabama Announces Guidance in Response to Wayfair Decision

  3. Michigan Provides Further Guidance on Impact of Federal Act

  4. Remote Sellers Will Have Wisconsin Tax Duties Beginning October 1

  5. Indiana Updates Remote Seller Guidance

  6. Indiana Explains Income Taxes on Overseas Earnings

  7. Enacted Louisiana law addresses the timing of expiring corporate income tax provisions

  8. California OTA Issues Updated Draft of Proposed Permanent Regulations on Administration and Procedures of Appeals and Petitions for Rehearing

  9. Indiana DOR Bulletin Discusses Recently Enacted Legislation, Including State Impact of IRC Sec. 965 Repatriation Provisions, GILTI, and IRC Sec. 163(j)

  10. Maine Revenue Services Explains Procedures for Filing and/or Amending Returns Given State’s Nonconformity to Recent Federal Tax Law Changes

  11. Pennsylvania: Bulletin Reflects New Law Reversing DOR’s Previous Policy by Allowing for Depreciation of 100% Bonus Property

  12. New Jersey: New Law Requires Amnesty Program with Potential Waiver of 100% Penalties and 50% Interest

  13. Massachusetts Appellate Tax Board Holds that Taxpayer is a “Manufacturer” Required to Compute its Corporate Excise Tax Liability Using Single Sales Factor Apportionment

  14. New Jersey: New Law Includes Mandatory Combined Reporting Regime, Market-Sourcing Provisions, CBT Surtax, and Responses to Some Provisions of the Federal 2017 Tax Act

  15. New York: Appellate Court Affirms Tax Appeals Tribunal Ruling Addressing Bank’s Treatment of NOLs

  16. Vermont: New Law Updates State Conformity to Internal Revenue Code; Responds to Some Provisions of the Federal 2017 Tax Act

  17. Georgia DOR Explains Exclusion for Dividends from Sources Outside the US, Including Application of IRC Sec. 965 Provisions

  18. North Carolina: New Law Modifies Sourcing Language for Receipts from Intangibles for Sales Factor Purposes

  19. Oregon DOR Issues Administrative Rule on New State Repatriation Tax Credit Pursuant to IRC Sec. 965 Repatriation Income for Tax Year 2017

  20. Connecticut Issues GILTI Guidance

  21. North Carolina Changes Intangible Property Sourcing Rules

  22. MTC Adopts Apportionment Regulation Amendments

  23. Delaware Imposes Tax on Series LLCs

  24. Utah Enacts Deferred Foreign Income Changes

  25. Florida DOR Holds that Taxpayer May Include Certain Intercompany Sales with Foreign Affiliates in its Sales Factor

  26. New Jersey Division of Taxation Explains Upcoming Amnesty Program with Potential Waiver of Penalties, Reduced Interest, and Non-Participation Penalties

  27. Alaska: New Law Requires Public Utilities to Use MTC Three-Factor Apportionment Formula for Corporate Income Tax Purposes

  28. Connecticut: New Guidance Issued on Treatment of GILTI for Corporation Business Tax Purposes

  29. Minnesota DOR Discusses How 2017 Federal Tax Act May Affect Business Tax Returns for Tax Year 2018

  30. Rhode Island DOT Comments on Some State Tax Impacts of the Federal 2017 Tax Act

  31. Utah: New Law Clarifies Previously Enacted Legislation Involving IRC Sec. 965 Deferred Foreign Income, and Revises NOL Provisions

  32. Rhode Island Adopts C Corp IRC Sec. 965 Regulations

  33. California Taxpayer Cannot Force Retailer to Seek Sales Tax Refund

  34. Minnesota Hosting SST Meeting to Discuss Wayfair

  35. Maryland Issues Wayfair Guidance

  36. Indiana Wayfair FAQ Page Talks Enforcement

  37. SST Meets to Discuss Wayfair

  38. Texas Provides Guidance on Wayfair Decision

  39. Wayfair Decision Does Not Affect Rhode Island Remote Sellers

  40. Minnesota Sets Remote Collection Date

  41. Indiana Explains Impact of Wayfair

  42. Nebraska Issues Guidance for Remote Sellers

  43. Utah Enacts Economic Nexus Law

  44. Alabama Explains Impact of Federal Tax Cuts and Jobs Act

  45. Michigan Issues Sales Tax Economic Nexus Guidelines

  46. MTC Adopts Two Amended Model Rules Pursuant to Section 18 Alternative Apportionment Regulatory Project

  47. Alabama DOR Issues Preliminary Guidance on Some State Impacts of the Federal 2017 Tax Act

  48. Delaware: New Law Imposes Annual Tax on State-Registered Series LLCs

  49. Michigan Appellate Court Affirms Disallowance of MBT Modified Gross Receipts Tax Base Deduction for Purchased Services

  50. Vermont Department of Taxation Issues Certain Guidance on Federal 2017 Tax Act, Specifically the Inclusion of IRC 965 Income on State Returns

  51. Arkansas DFA Says Remote Sellers Should Register and Collect Tax Pursuant to Recent US Supreme Court Decision that Overrules Quill

  52. Kentucky DOR Updates Post- Wayfair Comments; Announces October 1 Enforcement Date and Reiterates Prospective Implementation

  53. Nebraska DOR Comments on Recent US Supreme Court Decision that Overrules Quill, Including January 1, 2019 Enforcement Date and Promise of “No Retroactivity”

The above represents 'general curating' of state tax developments into one spot. If you still feel overwhelmed by the volume of state tax developments, please consider my 'custom curating' service. Meaning, clients hire LEVERAGE SALT to daily curate state tax developments relating to a specific industry, state(s), tax type and issueYou can make it as granular as you prefer. This allows you to reduce information overload, and only get the information you need to help your clients or company. This service is provided on a fixed-fee or subscription basis. Contact me at strahle@leveragesalt.com.

STATE TAX KNOWLEDGE UPDATE (54 ITEMS) - JULY 3, 2018

The following are state tax and business developments I have curated since June 11th, and posted in the LEVERAGE SALT LinkedIn group:

Some of the items may be on the same state/issue/topic, but they are from different sources which may give you a broader perspective to help your company or client.

  1. High Court Will Not Review Pennsylvania NLC Carryover Decision

  2. North Carolina Budget Bill Makes Major Tax Changes, Updates Conformity

  3. Colorado Issues IRC Sec. 965 Repatriation Transition Tax Guidance

  4. Connecticut Issues Guidance on Pass-Through Entity Tax

  5. Connecticut Issues Guidance on Bonus Depreciation Changes

  6. Hawaii Enacts Sales Thresholds for Sales Tax

  7. Hawaii Updates IRC Conformity for 2018

  8. Chicago Tax on Streaming Services Upheld

  9. Virginia Enacts Biennial Budget Legislation

  10. Are High Court Tax Precedents Set in Stone After 25 Years?

  11. DON'T PANIC - Physical Presence No Longer Matters in Determining Whether A Company is Required to Collect Sales Tax

  12. North Dakota Remote Seller Thresholds Take Effect With Quill Overturn

  13. Louisiana Enacts Remote Seller Law

  14. Minnesota Offers Wayfair Guidance

  15. What will non-streamlined sales tax states do??

  16. STOP THE USE TAX NOTICE AND REPORTING LAWS!!!!

  17. California OTA Issues Revised Draft Proposed Permanent Regulations on Administration and Procedures of Appeals and Petitions for Rehearing

  18. Louisiana: New Law Clarifies that Certain Reductions and/or Suspensions of Tax Benefits, Credits, and Exemptions Enacted via 2015 Legislative Changes were Temporary

  19. North Carolina: New Law Updates State Conformity to IRC, Responds to Some Provisions of the Federal 2017 Tax Act, and Revises Sales Factor Sourcing Rules

  20. US Supreme Court Denies Taxpayer’s Request to Review 2017 Pennsylvania Supreme Court Ruling on NOL Carryovers

  21. Rhode Island Division of Taxation Releases Guidance on Treatment of IRC Sec. 965 Income for C Corporations, and Accompanying Proposed New Regulation

  22. Texas Appellate Court Holds that Taxpayer Provides Services Rather than “Goods” for Purposes of Calculating Deductible Costs of Goods Sold under Franchise Tax

  23. Alabama Issues IRC Sec. 965 Repatriation Income Guidance

  24. Decoupling Bill Sent to New Jersey Governor

  25. New Jersey Legislature Passes Tax Amnesty Bill

  26. Rhode Island Budget Bill Amends Personal Exemptions, Credits

  27. Connecticut Creates Deduction for Venture Capital Income

  28. Iowa Offers Wayfair Guidance

  29. Louisiana Decreases Sales Tax Rate

  30. New Jersey Legislature Passes Alternative Surtax and Decoupling Bill

  31. Massachusetts Bill Creates Family and Medical Leave Payroll Tax

  32. Remote Sellers Not Yet Required to Collect Tax From South Dakota Buyers

  33. Vermont’s Remote Seller Law Takes Effect July 1

  34. Corporate Close-Up: Colorado Latest State to Enact Market-Based Sourcing

  35. Hawaii Explains Nexus Thresholds

  36. Kentucky Provides Wayfair Guidance

  37. Rhode Island Outlines Remote Seller Registration Options

  38. Vermont Reduces Rates, Updates IRC Conformity

  39. Idaho Is Reviewing Impact of Wayfair Decision

  40. New Hampshire Responds to Wayfair Decision

  41. Pennsylvania Decouples Corporate Income Tax from Federal Bonus Depreciation

  42. NCSL says states should ensure that they are fully prepared before begin enforcing their sales tax laws on remote sellers

  43. New Jersey Enacts Tax Amnesty Bill

  44. New Jersey Enacts Surtax, Combined Reporting, and Decoupling

  45. Colorado DOR Discusses State Treatment of Foreign Earnings Subject to New Federal Transition Tax under IRC §965

  46. Hawaii: New Law Updates State Conformity to Internal Revenue Code, Responds to Some Provisions of the Federal 2017 Tax Act

  47. Illinois DOR Issues Proposed Amended and New Rules on Prior Year NOL Suspensions and Special NOL Computation Rules

  48. New York: Draft Proposed Article 9-A Franchise Tax Regulations Issued on Corporations Subject to Tax

  49. New Jersey Appellate Court Affirms that IRC Tax Attribute Reductions May Not be Reversed

  50. Alabama DOR Issues Additional Guidance on IRC Sec. 965 Transition Tax’s Impact on State Tax Returns

  51. California: FTB Explains New Policy Prohibiting Certain Ex Parte Communications Involving Alternative Apportionment Petition Hearings

  52. Rhode Island: New Law Grants State Tax Administrator Additional Authority in Light of Federal 2017 Tax Act

  53. Louisiana: New Law Includes Tax Rate Reduction and Various other Changes

  54. Rhode Island: New Law Imposes Tax on Sales of Software as a Service (SaaS)

The above represents 'general curating' of state tax developments into one spot. If you still feel overwhelmed by the volume of state tax developments, please consider my 'custom curating' service. Meaning, clients hire LEVERAGE SALT to daily curate state tax developments relating to a specific industry, state(s), tax type and issueYou can make it as granular as you prefer. This allows you to reduce information overload, and only get the information you need to help your clients or company. This service is provided on a fixed-fee or subscription basis. Contact me at strahle@leveragesalt.com.

DON'T PANIC - Physical Presence No Longer Matters in Determining Whether A Company is Required to Collect Sales Tax

On June 21, 2018, the United States Supreme Court ruled in a 5-4 decision in South Dakota v. Wayfair, Inc., et al, that the physical presence test under the 1992 Supreme Court case (Quill Corp v. North Dakota (504 U.S. 298) no longer applies to the obligation to collect and remit sales tax on sales to customers in a state.

DON'T PANIC

Let's pause and everyone take a breath - the articles and posts about the case are like an avalanche of gloom and doom. We don't know exactly how all of this will play out. States will respond in different ways. Congress could still act. New challenges could arise. In the meantime, there is a safe harbor for small businesses to not have to collect sales tax under South Dakota's law. Other states that have enacted or proposed similar laws have the same or similar safe harbor. If all other states follow along, small retailers that are under those thresholds won't have to collect sales tax in every state.

A ‘Cliff Notes’ Version of the U.S. Supreme Court Wayfair Ruling

  1. Quill is overturned; physical presence is not necessary to create substantial nexus

  2. A business may be present in a state in a meaningful way without that presence being physical in a traditional sense

  3. States will respond in different ways to utilize this NEW power (but it is NOT unlimited power)

  4. This ruling applies to companies in any industry including service providers (NOT JUST ONLINE RETAILERS) – any company that has sales in a state, but hasn’t collected sales tax because they don't have a physical presence in the state

  5. Protection may still apply to small businesses

  6. South Dakota law is acceptable - substantial nexus is met with more than $100,000 in annual sales or 200 or more separate transactions; not retroactive; SD is member of SSUTA

  7. Other states with laws similar to South Dakota will most likely be acceptable

  8. Businesses can still challenge state laws under other Commerce Clause doctrines (i.e., if the state’s law causes an undue burden on interstate commerce)

  9. Congress can still regulate interstate commerce

  10. Approximately 20 states have economic nexus sales tax nexus provisions similar to South Dakota

  11. Companies should respond diligently and cautiously.

Small Business Safe Harbor Should Be Challenged and Changed

There is a safe harbor for small businesses to not have to collect sales tax under South Dakota's law. Other states that have enacted or proposed similar laws have the same or similar safe harbor. If all other states follow along, small retailers that are under those thresholds won't have to collect sales tax in every state.

The 'de minimis' activity threshold is probably the remaining sticking point for each state to work with and could create further litigation. In my opinion, the 200 transaction threshold should be eliminated and states should simply rely on a revenue amount as a threshold. Small businesses need better protection especially since state laws are not uniform (complexity), and create an undue burden on interstate commerce for small businesses.

Challenges Remain

The case was remanded to South Dakota courts to determine if any further challenges to the law could be made. Stay tuned.

STATE TAX KNOWLEDGE UPDATE (59 ITEMS) - JUNE 11, 2018

The following are state tax and business developments I have curated since May 22nd, and posted in the LEVERAGE SALT LinkedIn group:

Some of the items may be on the same state/issue/topic, but they are from different sources which may give you a broader perspective to help your company or client.

  1. California proposes to amend entity classification rules; comments due June 26

  2. Delaware qui tam case against gift card retailers moves forward

  3. Colorado Market-Based Sourcing Legislation Goes to Governor

  4. California Launches Online Directory of Business Incentives

  5. Tennessee Decouples From Business Interest Deduction Limit

  6. Louisiana Governor Proposes Tax Cuts, Elimination of Deductions

  7. Minnesota Governor Vetoes Omnibus Tax Legislation

  8. Missouri Lawmakers Approve Corporate Rate Cut, Apportionment Changes

  9. 2018 State Tax Amnesty Programs (as of 5 25 18)

  10. California FTB holds interested parties meeting regarding significant proposed revisions to its market-based sourcing rules

  11. The SALT Deduction Limit: The IRS Responds to State Workarounds

  12. Online Travel Companies Are Not Liable for Local California Hotel Tax

  13. Hawaii Use Tax Held Constitutional

  14. TaxDay becomes official MLB Players Association partner

  15. IRS Discusses Certain Payments Made in Exchange for State and Local Tax Credits

  16. California FTB Provides TY 2017 Filing Guidance Regarding IRC Section 965 Repatriation Transition Tax

  17. New Louisiana Law Revises Due Date for Filing Corporate Franchise Tax Returns

  18. Maine Revenue Services Comments that Amended Returns May be Necessary Given State Nonconformity to Recent Federal Tax Law Changes

  19. Michigan Appellate Court Affirms that Holding Company Lacks Requisite Nexus for City of Detroit Income Tax Purposes

  20. New Jersey Appellate Court Affirms Lower Court Decision Involving Unreasonable Exception to CBT Intercompany Expense Addback Rule

  21. New Tennessee Law Includes Delayed Decoupling from New Business Interest Limitations under IRC Sec. 163(j)

  22. Hawaii State High Court Upholds Validity of Use Taxation Scheme on Purchases from Out-of-State Sellers

  23. Washington DOR Advisory Explains that Retailer’s Enhanced Delivery Services May Create Nexus

  24. Corporate Close-Up: No More Passing Through In Connecticut and New York?

  25. Georgia Property Tax Appeal Thresholds Decreased

  26. Delaware Creates Angel Investor Credit

  27. Georgia Creates Additional High-Technology Exemption

  28. Governor Signs Iowa Sales and Use, Excise Tax Reform Legislation

  29. Iowa Enacts Major Income Tax Reform

  30. Connecticut Enacts Pass-Through Entity Income Tax

  31. Montana Adopts Pass-Through Entity Apportionment Rules

  32. Connecticut enacts responses to federal tax reform

  33. California FTB Now Permitting Taxpayers to Make Oral Presentations in Staff-Initiated Alternative Apportionment Proposals

  34. Michigan Department of Treasury Issues New Bulletin on UBG Including Control and Relationship Tests

  35. Pennsylvania DOR Issues Ruling on New Law that Imposes Information Reporting and Notice Requirements

  36. New York Tax Appeals Tribunal Reverses ALJ to Hold that Taxpayer’s Transactions Must be Aggregated and Thus Subject to Tax

  37. Enacted Kentucky Legislation Provides for Mandatory Combined Reporting for Unitary Businesses and Additional Sales Tax Changes

  38. Alabama DOR Issues Guidance Regarding IRC Section 965 Deemed Repatriation Impact on Taxpayers

  39. Iowa enacts significant income tax and sales tax changes

  40. Legislative Session Review: Iowa

  41. Oregon's research credit sunsets - Opportunities for 2017 tax year

  42. Missouri reduces rate, adopts single factor and market sourcing, more

  43. LINK TO IOWA TAX REFORM WEBSITE CREATED BY IOWA DOR

  44. Iowa Governor Signs Tax Reform & Conformity Bill

  45. Wayfair Debated at Georgetown SALT Conference

  46. State Impacts of TCJA Analyzed at Georgetown Conference

  47. Missouri Enacts Corporate Tax Rate Cut and Apportionment Changes

  48. Sales Thresholds Trigger Sales Tax Nexus in Illinois

  49. Michigan Updates Unitary Business Group Guidance

  50. Colorado Enacts Market-Based Sourcing

  51. Connecticut Explains Repatriation Transition Tax Reporting

  52. New Colorado Law Imposes Market-Based Sourcing Provisions for Certain Receipts from Services and Intangibles

  53. New Connecticut Law Makes Various Changes in Response to Federal 2017 Tax Act

  54. Kentucky DOR Explains New Law that Includes Mandatory Unitary Combined Reporting Regime and Market-Based Sourcing

  55. Michigan Department of Treasury Comments on Federal 2017 Tax Act

  56. Montana DOR Issues New Regulations on the Apportionment and Allocation of Income Reported by Pass-Through Entities

  57. New Illinois Law Imposes Remote Seller Tax Collection and Remittance Responsibilities via Economic Nexus Provisions

  58. New Iowa Law Imposes Economic Nexus

  59. Recent Idaho Law Amendments Provide Income Tax Rate Reductions and Amend IRC Conformity

The above represents 'general curating' of state tax developments into one spot. If you still feel overwhelmed by the volume of state tax developments, please consider my 'custom curating' service. Meaning, clients hire LEVERAGE SALT to daily curate state tax developments relating to a specific industry, state(s), tax type and issueYou can make it as granular as you prefer. This allows you to reduce information overload, and only get the information you need to help your clients or company. This service is provided on a fixed-fee or subscription basis. Contact me at strahle@leveragesalt.com.

CLEANING UP STATE TAX EXPOSURE

In case you missed what states have amnesty programs going on currently, I thought I would send you a link to COST's (Council on State Taxation) quick summary.

Amnesty can be a great tool for states and taxpayers, but sometimes a voluntary disclosure agreement is a better option.

What is an Amnesty Program?

An amnesty program is generally a time period established by a state to allow taxpayers who are delinquent on their taxes to come forward, and pay those taxes without penalties being imposed. Usually interest is still imposed, but sometimes it may be waived as well. Each state amnesty program is different or unique; meaning, they each contain their own set of rules, guidelines and qualifications. Amnesty programs usually pertain to certain tax periods, specific tax types, and taxpayers who meet certain criteria. In other words, "look before you leap."

Taxpayers who are eligible for an amnesty program, but don’t take advantage of the program, are often faced with harsh penalties if caught after the program has ended.

Voluntary Disclosure Agreements

When amnesty programs are not in effect, most states still have what they call “Voluntary Disclosure Agreement” (VDA) programs which allow taxpayers to come forward on an anonymous basis, limit the number of prior years required to be filed (usually 4), and pay taxes and interest. Under most VDA programs, penalties are waived, but not interest.

Remember, a voluntary disclosure agreement is only able to be utilized if the state has not already contacted the taxpayer (in most cases). If the state contacts the taxpayer first, the state can make the taxpayer file returns for all previous years in which the company had nexus in the state.

7 Questions Companies & State Governments Should Consider

  1. If alternative apportionment is wide open and anything goes, why have statutes?

  2. Are we moving from apportionment to allocation when we use single-sales factor apportionment and market-based sourcing?

  3. Is single-sales factor apportionment 'fair apportionment'? It moves income to customer states, not to states where the activities occurred that generated the income. Income is not based solely on sales.

  4. Are throwback and throwout rules unconstitutional because they look beyond the borders of the state?

  5. Should states be able to enact retroactive legislation to protect the state budget from financial loss?

  6. Should retroactive legislation be limited to a state's statute of limitations?

  7. Should judicial decisions only apply to the taxpayer involved in the litigation if it involves a refund?