In September, 2015, the Governor of North Carolina signed HB 97. HB 97 made several changes to North Carolina tax law such as phasing-in single-sales factor apportionment. However, the one key change I want to bring to your attention is the "informational reporting requirement" that North Carolina is imposing on corporations (see Section 32.14 of HB 97).
HB 97 directs the Revenue Laws Study Committee to study the calculation of the sales factor using market‑based sourcing. To help the Committee determine the effect of market‑based sourcing on corporate taxpayers, each corporate taxpayer with apportionable income greater than ten million dollars ($10,000,000) and a North Carolina apportionment percentage less than one hundred percent (100%) is required to file an informational report with the Department of Revenue as part of its 2015 income tax return.
What Is Required to Be Reported?
The report is required to show the calculation of the taxable year 2014 sales factor using market‑based sourcing.
The informational report must contain the following information:
- The corporation's 2014 apportionment percentage used on the corporation's 2014 North Carolina corporate tax return.
- The corporation's 2014 apportionment percentage as calculated using market-based sourcing.
- The corporation's primary industry code under NAICS.
- Any other information prescribed by the Secretary.
How is Market-Based Sourcing Calculated?
In general terms, the sales factor calculation is based on the model market‑sourcing regulations drafted by the Multi‑State Tax Commission.
- The sale, rental, lease, or license of real property is sourced to North Carolina if it is located in North Carolina.
- The rental, lease, or license of tangible personal property is sourced to North Carolina if it is located in this State.
- Services are sourced to North Carolina if the service is delivered to a location in North Carolina.
- Intangible property that is rented, leased, or licensed is sourced to North Carolina if it is used in North Carolina. Intangible property utilized in marketing a good or service to a consumer is "used in this State" if that good or service is purchased by a consumer who is in North Carolina. A contract right, government license, or similar intangible property that authorizes the holder to conduct a business activity in a specific geographic area is "used in this State" if the geographic area includes all or part of North Carolina.
- Receipts from intangible property sales that are contingent on the productivity, use, or disposition of the intangible property are treated as receipts from the rental, lease, or licensing of the intangible property. All other receipts from a sale of intangible property are excluded from the numerator and denominator of the sales factor.
When Is It Due?
The informational report is due at the time corporate taxpayer's return is due for the 2015 taxable year. No extensions.
What If I Don't Comply?
North Carolina can assess a $5,000 penalty for failure to timely file an informational report.
Here is a link to the form, Form CD-400MS.
Problems With This Requirement?
North Carolina should not impose a penalty for non-filing. I know North Carolina needs an incentive to make taxpayers comply, but a $5,000 penalty (or 'stick') is not the way to do it. North Carolina could offer a 'carrot' instead. Perhaps a credit or something similar could be offered.
Taxpayers should be able to obtain an extension for filing the form. If the taxpayer extends its 2015 return, it should not be forced to file Form CD-400MS earlier. This creates an extra compliance burden on taxpayers that just isn't necessary.
Sidebar: All information reporting requirements like this one, remind me of the Maryland combined reporting information requirement 'debacle' a few years ago.
What do you think?