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Current Corporate Income Tax Developments (Part II) This two-part article discusses a myriad of recent state tax activity in the corporate income tax area. Part II examines developments on apportionment formulas, filing methods/unitary groups, administration and other significant state tax developments.
Karen J. Boucher, CPA
For more information about this article, contact Ms. Boucher at kboucher@deloitte.com.
Executive Summary
During 2002, a number of state statutes were added, deleted or modified; court cases were decided; regulations were proposed, issued and modified; and numerous bulletins and rulings were issued, released and withdrawn. Part I of this article, in the last issue, focused on some of the more interesting items in the corporate income tax areas of nexus, tax base, business/nonbusiness income, and trademark/tradename cases and determinations. Part II, below, discusses apportionment, filing methods/unitary groups, administration and other significant income and franchise tax developments.
Apportionment A multistate corporations business in-come is apportioned among the states in which it does business using an apportionment percentage for each state having jurisdiction to tax the corporation. To determine the apportionment percentage, a ratio is established for each of the factors included in the states formula; each ratio is calculated by comparing the corporations level of a specific business activity in the state to the total corporation activity of that type everywhere. The ratios are then summed, weighted (if required) and averaged to determine the corporations apportionment percentage for the state. The apportionment percentage is then multiplied by total corporation business income. Apportionment formulas vary among jurisdictions; many states use a three-factor formula that includes sales, payroll and property factors. Over the past several years, legislative changes to the apportionment formula have become common; more than half of the states now accord more weight to the sales factor than to the payroll or property factor. Use of a higher-weighted sales factor tends to pull a larger percentage of an out-of-state corporations income into the states jurisdiction, but generally provides tax relief for in-state corporations. Changes in the apportionment formula may also be used to provide relief or tax benefits to specific industries or to properly reflect the operations of a particular industry. Recent apportionment developments are summarized below.
Arizona The tax court ruled39 that gross treasury function proceeds are excluded from the sales factor and that a return of principal did not constitute gross receipts, but dividends and interest did. The court reasoned that once excess operational revenue was invested in securities or other interest-bearing mediums, it lost its gross receipts characterization and could not be counted as gross receipts a second time simply because the money was withdrawn from the investment. The Arizona Department of Revenue (DOR) explained40 that installment gains reported in the current year are apportioned based on the current-years apportionment factors.
California A company was unsuccessful in its appeal41 that its sales factor should reflect the return of capital component of its sales of financial instruments. In challenging this method under the distortion provisions of the states apportionment regulations, the Franchise Tax Board showed that between 12%28% percent of the taxpayers business activities would be shifted away from California under the asserted factor. The State Board of Equalization (SBE) agreed that a shift of this magnitude was consistent with the 11% threshold determined to be distortive in Appeal of Pacific Tel. & Tel.42 Similarly, another company was unsuccessful in its appeal43 that its sales-factor denominator should include proceeds from short-term investment sales and gains from forward exchange contracts. The SBE decided that the short-term investment proceeds should be excluded, because the taxpayer failed to affirmatively establish where the related income-producing activity took place, other than claiming it occurred outside of California. The SBE also stated that the investment activity did not produce any gross receipts that could be included in the sales factor, because the company used independent contractors for practically all investment work, and work on a taxpayers behalf is omitted by rule from the income-producing activity analysis. The forward exchange contracts were excluded from the sales denominator under similar reasoning, because they were short-term investments in foreign currencies, with a goal of profiting from currency fluctuations.
Idaho On remand from the state supreme court, a state district court held44 that inclusion of the sales of accounts receivable in the apportionment formula does not fairly represent the extent of business activity in Idaho. The court further found that deleting the proceeds of the receivables sales from the sales-factor denominator is a reasonable and more accurate alternative apportionment method.
Illinois A circuit court reversed45 its previous summary judgment determination that allowed the gross receipts from sales of financial instruments to be included in a companys sales factor. The court reasoned that it would be improbable that the legislature would enact a statute that would allow the location of a companys treasury department to determine a major portion of the apportionment formula. In another case, a circuit court held46 that a corporation is not entitled to add an additional intangible property apportionment factor to reflect royalty income from foreign subsidiaries, because the corporations taxable income is not limited to foreign royalty income and the standard apportionment formula takes such income into account. Under amended regulation 86 Ill. Adm. Code Sec. 100.3380(c)(2), gross receipts from an incidental or occasional sale of assets are excluded from the Illinois sales factor, without regard to whether such receipts are substantial or insubstantial. Also, the Illinois DOR adopted 86 Ill. Adm. Code Sec. 100.3400, an apportionment regulation for financial organizations. The DOR also adopted a change47 to its regulation governing the apportionment of business income from a unitary partnership for regular income tax purposes, so that the income and factors of every partnership will flow up and be taxed proportionately to its ultimate unitary partners. The amendment is effective for tax years beginning after June 19, 2002, unless the taxpayer petitions otherwise. Prior to this amendment, second-tier partnerships were not deemed unitary with their owners; accordingly, the income from such entities was apportioned at the entity level and treated as allocable income for the corporate partner (i.e., the income and apportionment factors from such partnerships did not flow up to be aggregated with the corporate partners income and factors).
Iowa The Department of Revenue and Finance amended subrule 70159.28(2)(m) to clarify that fees, commissions or other compensation for financial services should be included in the numerator of the apportionment factor if the services are rendered for a customer located in, or an account maintained within, Iowa.
Kansas S 39, Laws 2002, allows a qualified investment fund service corporation to elect to apportion business income from administration, distribution and management services provided to each investment company by a special single-factor apportionment formula, based on ownership of shares in the investment company.
Massachusetts The DOR amended 830 CMR 63.38.1(9)(b)7 to provide that the sales factor does not include deemed receipts from Internal Revenue Code (IRC) Sec. 338(h)(10) transactions and dividends from a subsidiary deemed to be a IRC Sec. 311(b) asset sale, even if the transaction results in the subsidiarys recognition of taxable net income.
Michigan The Department of Treasury (DOT) issued a Revenue Administration Bulletin48 that defines a financial organization for purposes of the single business tax (SBT) and provides a related new SBT single-factor gross business apportionment formula for a financial organization conducting multistate business activities.
Minnesota The tax court held49 that various services provided by entities located in Minnesota to a series of mutual funds were consumed in the state, not in the states in which individual mutual fund investors resided; thus, receipts from such services were properly sourced 100% to Minnesota. The entities services included investment advisory, administrative, underwriting and distributions services, and acting as a transfer agent.
Nebraska The state supreme court ruled50 that sales of business data products constituted sales of tangible personal property for sales-factor-apportionment purposes. The taxpayer provides comprehensive business data and products to its clients to help them find new customers via physical paper, computer diskettes/magnetic tapes, and/or online computer communications over telephone lines.
New Jersey The New Jersey Business Tax Act (NJBTA) mandates the throwout of receipts from the sales-factor denominator to the extent a taxpayer is not taxable in the destination state, and caps any resulting additional liability at $5 million. The tax court ruled51 that a securities market-maker must source the income from trading securities to the customers location.
New York City A Tax Appeals Tribunal administrative law judge (ALJ) ruled52 that the receipts formula clearly entitles domestically funded foreign receipts to be excluded from the numerator of the blended-income-allocation percentage-receipts factor.
New York State The Department of Taxation and Finance (Department) advised53 that for apportionment purposes, gift certificates (whether delivered physically or electronically) are not sales of tangible personal property, but are sales of an intangible right of redemption for property or services at some future time. When delivered through a website, the location of the sale is the location of the customer that accesses the site; when that location is not known, the customers billing address is the location. In a combined report setting, a New York ALJ upheld54 the Departments inclusion of New York sales made by affiliated corporations that did not have nexus with New York, in the numerator of the receipts factor.
Rhode Island A district court required55 two related corporations to include the full distributive share from their participation in a lower-tier partnership, without any apportionment dilution for the partnerships property, payroll and sales. Al-though the state supreme courts decision in Homart Development Co.56 allowed flowthrough of the partnership factors, the district court explained that the factor inclusion in Homart relieved a distortive condition; similar treatment in the instant case would create distortion.
Texas The Comptroller of Public Accounts has amended rule Section 3.560 on banking corporations, to provide apportionment guidelines for certain interest received from correspondent banks.
Filing Methods and Unitary Groups Colorado The DORs executive director confirmed57 that a foreign sales corporation (FSC) with more than 80% of its property and payroll outside of the U.S. cannot be forcibly included in a state combined report. It also concluded that the foreign-source income exemption is limited to foreign-source income described in IRC Sec. 862.
Georgia The DOR adopted Regulation 560-7-3-.13 which, for tax years beginning after 2001, allows an affiliated group to petition to file a consolidated return for corporations that have nexus with the state. Taxable income is consolidated on a separate-company post-apportionment basis, and available state credits are computed using the same separate-company method, but are assignable. The regulation requires the consolidated return petition to be filed at least 75 days prior to the returns filing due date (including extensions). A consolidated return of affiliates can be required when the commissioner reasonably determines that the result would more clearly and equitably reflect state income.
Idaho The state tax commission held58 that because a domestic corporation contributes intellectual property, financing at below-market rates and proprietary management technology to its foreign subsidiaries, it satisfies the unity requirement that the operation of the business done in the state contributes to out-of-state operations. The commission determined that the proprietary technology is a core competence applied worldwide; the taxpayers annual report admitted to having operating control over its foreign ventures.
Illinois An FSC was not includible in its parents unitary combined return, because it conducted more than 80% of its business activities outside of the U.S., based on payroll and property factors.59
Indiana The DOR found60 that a diversified financial services company constituted a single unitary business. The company operated two distinct businesses included in a Federal consolidated returnone, traditional bank services insured by the FDIC and two, a business providing similar services to customers who would not otherwise qualify to receive those services from traditional banking institutions. The DOR sustained the audits unitary findings, primarily with citations to the groups annual financial reports, which indicated that the bank group and financial group together contributed to the companys overall financial well-being and were each dependent on and sustained by it. The DOR also ruled61 that a taxpayer was instantly unitary with an acquired out-of-state banking group. The ruling noted that several steps toward assimilation of the group occurred before the acquisition date; further, the companys annual report alluded to the beneficial economies that resulted from the targets immediate deployment of the purchasers systems and procedures.
Kansas The state supreme court decided62 that the DORs bright line test, under which one entity must own more than 50% of another entity before the DOR will consider whether the entities are operating as a unitary business, is invalid. The court ruled that more-than-50%-ownership is not needed for a group to be included in a unitary return. A court of appeals decided63 that only certain members of a Federal consolidated group were unitary. The DOR has historically prevailed with the proposition that if Corporation A is unitary with Corporation B, which is unitary with Corporation C, then A is unitary with C. In this decision, the court appeared to require direct unitary ties (i.e., ties between Corporations A and C).
Minnesota The tax court held64 that arms-length pricing may defeat the finding of a unitary business. While the court found that the states method of taxing a multinational oil business did not violate the U.S. Constitutions prohibition on discrimination against foreign commerce, the court held that state law prohibited the inclusion of exploration and production activities. Significantly, it found that the mere oversight normally conducted by a corporate parent, in and of itself, is not sufficient to support the finding of a unitary business.
Missouri The state supreme court reversed and remanded the Boise Cascade65 and Eddie Bauer66 administrative hearing commission decisions, which had held that the taxpayers were not entitled to file Missouri consolidated income tax returns before 1998. In response, the DOR issued Prop. Reg. 10-2.045, to reflect the invalidated consolidated return requirement, that 50% of a taxpayers income must be from within the state, pursuant to the General Motors Corp.,67 Eddie Bauer and Boise Cascade decisions. The proposed regulation also relaxes the current time limit for electing consolidated return status, by expanding it to within the statute of limitations (SOL) for filing amended returns. This extension applies to elections that normally would have been due before Dec. 28, 1998, and targets any affiliated group that did not timely file a Missouri consolidated return, because it was barred from doing so under the prior 50% state income limit. Additional proposed changes affect procedural filing requirements.
Administration Connecticut 2002 Pub. Acts 1, Sections 61 and 62, strengthened the commissioners discretionary authority to make corporation business tax adjustments in response to the state supreme courts decision in Carpenter Technology Corp.68
District of Columbia The Office of Tax and Revenue (OTR) announced a recall and review of all rulings that taxpayers plan to use in determining district tax after 2002. All rulings submitted to the OTR will be reviewed to determine whether the ruling should be reissued, the form in which it will be reissued, whether the ruling should be issued as general guidance or whether it should be withdrawn. Rulings not submitted to the OTR during the recall and review process are withdrawn as of Dec. 31, 2002 and cannot be used for returns filed after that date.
Illinois The DOR amended regulation 2 Ill. Adm. Code 1200.110 to provide that every letter ruling is revoked 10 years after July 1, 2002, or the rulings issue date, whichever is later. No ruling may be cited or relied on for any purpose after its revocation date, and the ruling will cease to bind the DOR after the revocation date. Taxpayers entitled to rely on the opinion contained in a particular ruling must apply for a new ruling before its aforementioned revocation date.
Kansas S 39, Laws 2002, requires state withholding on distributions to nonresident members and shareholders of S corporations, partnerships and limited liability companies (LLCs).
Louisiana Act No. 68, Laws 2002, allows the DOR Secretary to grant a three-year exemption from composite-payment requirements to publicly traded partnerships. At the end of the three-year period, publicly traded partnerships must submit a new exemption request.
New Jersey The sweeping corporate tax changes in the NJBTA include (1) strengthening the directors IRC Sec. 482-type adjustment authority for transactions between related entities, (2) authorizing the director to require an affiliated group of corporations to file consolidated returns, (3) giving the director the authority to require disclosure of intercorporate transactions and (4) accelerating the due date for estimated tax payments for taxpayers with more than $50 million in gross receipts.
New Mexico For tax years beginning after 2001, HB 12 (signed into law as Chapter 12) exempts from the reporting and withholding requirements, a partnership organized as an investment partnership in which the partners income is derived solely from interest, dividends and sales of securities.
New York City The Appellate Division ruled69 that New York City can make other tax return adjustments when the SOL is open for purposes of claiming refunds. Bankers Trust Corp. and the state entered into a settlement agreement on allowability of lower-tier interest deductions based on a state tax appeals tribunal ruling; Bankers Trust filed corresponding refund claims with the city. In response, the city re-audited the taxpayers original filings for the tax years at issue and offset the claimed interest deduction refunds by disallowing certain operating expense deductions, even though the three-year SOL for making an original assessment had expired. The court upheld the citys right to make such adjustments, concluding that Bankers Trusts refund claim filings placed at issue other aspects of its city returns for purposes of determining any refundable overpayment.
Pennsylvania A new Pass Through Business Unit has been established to identify and resolve cases concerning passthrough businesses and their owners.
EFT Survey The Federation of Tax Administrators (FTA) has pulled together a survey of the states electronic-funds-transfer programs; this survey can be found on the FTA website.70
Other Significant Income and Franchise Tax Developments Alabama The U.S. Supreme Court denied71 review of Millcraft-SMS Services, LLC; that decision stemmed from the decision that a former state franchise tax scheme was unconstitutional,72 thus leaving stand the state supreme courts ruling in favor of the state on a class action for refunds.
Georgia HB 1441, Laws 2002, allows taxpayers to assign corporate income tax credits to one or more affiliated entities in whole or in part, effective May 14, 2002. Previously, the assignment of tax credits was limited to a single affiliated entity.
Indiana Effective Jan. 1, 2003, House Enrolled Act 1001 (1) repealed the gross income tax (gross receipts tax), (2) eliminated the supplemental net income tax and (3) increased the adjusted gross income tax rate from 3.4% to 8.5% (previously, the effective combined net income tax rate was 7.747%).
Kentucky The state imposes on domestic and foreign corporations a license (franchise) tax based on business capital. KRS 136.071(1) permits a domestic corporation to deduct from total capital the book value of the corporations investments in the stock and securities of any corporation in which it owns more than 50% of the outstanding stock of such corporation. In a class action, a state trial court found73 that the regulation discriminated against non-Kentucky domiciliary corporations in violation of the Commerce Clause.
Massachusetts The DOR ruled74 that the reorganization of a corporation into a limited liability partnership (LLP) that checks the box to be taxed as a corporation and then makes an S corporation election will not be subject to tax. For state purposes, the parent is not treated as a corporation, although it is for Federal tax purposes. The DOR noted that there is no prior authority in the state for the proposition that a partnership will be treated as a corporation for purposes of the states recognition of a Federal F reorganization; nonetheless, for Federal tax purposes, the proposed transaction will not trigger the recognition of taxable gain to the parent LLP. Thus, because the individual partners state income is computed by reference to Federal gross income, the DOR ruled that there would not be any state gross income.75
Michigan The Department of Treasury issued an administrative bulletin,76 defining Financial Organizations for SBT purposes.
New Jersey The NJBTA included sweeping changes to the corporate tax statutes; the most dramatic change is the imposition of a corporate alternative minimum assessment (AMA), measured by state gross receipts or gross profits and imposed to the extent the AMA exceeds the corporate business tax in any tax year. Taxpayers must make a binding election, for a five-year period, to compute the AMA using gross receipts or gross profits. The AMA is effective for tax years beginning after 2002, and remains in effect for tax years beginning before July 1, 2006. Taxpayers claiming immunity from the net-income measure of the corporate business tax under P.L. 86-272 remain subject to the AMA for tax years beginning after June 30, 2006. The new law also:
North Carolina S 115, Laws 2002, closed a franchise tax loophole that allowed corporations to interpose a controlled partnership between the corporation and a controlled LLC, to shield the corporation from being taxed on the LLCs assets.
New York State The enacted Budget Bill included A9762-B, which: (1) extended the investment tax credit for financial services firms through Sept. 30, 2008; (2) clarified that derivatives dealers are eligible for the Article 9-A receipts-allocation rule used by brokers and dealers and that securities dealers can choose between customer location and sales location in determining where to source receipts from principal transactions; and (3) increased the first corporate estimated tax installment payment from 25% to 30% of the previous-years tax liability for taxpayers with tax liabilities greater than $100,000. Also, A9761 created 10 new empire zones.
Pennsylvania The state supreme court ruled77 that a mismatch between the unitary tax base and the separate-company factors, with a resulting 45% discrepancy, did not require factor representation for franchise tax purposes, either on constitutional or statutory grounds.78
Tennessee A corporation that is adequately capitalized need not add back its debt to affiliates in computing the net-worth component of the franchise tax.79
Virginia S 174, Laws 2002, permits a bank franchise tax deduction for 90% of the goodwill created in connection with any acquisition or merger occurring after June 30, 2001. H 319, signed into law as Chapter 29, expanded the definition of bank for bank franchise tax purposes to include any savings bank that is a member of the Federal Reserve System. |
