State and Local Taxes

State and Local TaxesBeyond the Basics and Planning

Opportunities

Steven P. Bryde, J.D.Tax Principal

January 27, 2011

DISCLAIMER:“The purpose of this PowerPoint presentation is to provide general information on issues related to State and Local Taxes. The information contained herein may not apply to all individuals, companies, firms, entities, institutions or organizations and their specific circumstances. The reader is encouraged to consult directly with a tax expert before making tax and accounting decisions.”

SALT: Beyond the Basics I. Application of SALT Principles II. SALT Planning Ideas III. Tax Amnesty Programs and Voluntary

Disclosure Programs

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SALT I. Application of SALT Principles

• Apportionment Factors– Constitutional Standards and P.L. 86-272– Intentionally Creating Nexus– Disregarded Entities– Real Life Examples – FL’s Anheuser-Busch– Real Life Examples – CA’s Reg. 25137

• Reduction of Taxable Income Base• Sourcing of Sales• Electing Combined or Consolidated return filing

II. SALT Planning Ideas III. Tax Amnesty Programs and Voluntary

Disclosure Programs

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Constitutional Standards

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Public Law (“P.L.”) 86-272DISCLAIMER:“The purpose of this PowerPoint presentation is to provide general information on issues related to State and Local Taxes. The information contained herein may not apply to all individuals, companies, firms, entities, institutions or organizations and their specific circumstances. The reader is encouraged to consult directly with a tax expert before making tax and accounting decisions.”

Application of SALT Principles:Apportionment Factors

Intentionally creating nexus(Nexus may be desirable)

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Intentionally Creating Nexus Sometimes, nexus is a desirable planning

tool.Example – 100% AF, nexus only in FL.

Now create nexus in GA and effective tax rate is substantially reduced.

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Intentionally Creating Nexus Company has Sales of $1 million, earned equally

from all 50 states (i.e., $20,000 earned from each state).

The Company has property and payroll of $1.8 million and $750,000, respectively all sourced to Florida.

The Company sells Tangible Personal Property. The Company files only in Florida, as it has 100% of

its payroll and property located in Florida. Florida uses 3 factor formula, with double weighted

sales. Georgia uses 3 factor formula with single weighted

sales.

7DISCLAIMER:“The purpose of this PowerPoint presentation is to provide general information on issues related to State and Local Taxes. The information contained herein may not apply to all individuals, companies, firms, entities, institutions or organizations and their specific circumstances. The reader is encouraged to consult directly with a tax expert before making tax and accounting decisions.”

Intentionally Creating Nexus

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Intentionally Creating Nexus



Disregarded Entities (“DRE”)

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Disregarded Entities





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Alternative: Subsidiary was a Disregarded EntityParent is pulled into State B because Subsidiary is seen as a division of the Parent(Assuming no intercompany sales)




Application of SALT Principles:

Apportionment Factors

The Interplay Between Taxable Income and the Apportionment Factors (“AFs”)

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Taxable Income Base andApportionment Factor Representation

General Rule: if an item is included in the taxable income base, it should get AF representation. Conversely, if something is removed from the taxable income base, it should not have AF representation.

Therefore, if unitary returns are filed and there are intercompany sales, those sales are usually removed from both the taxable income base and the AF calculation.


Florida Department of Revenue v. Anheuser-Busch,

Inc., 527 So. 2d 877 (Court of Appeals of Florida, First District), June 22, 1988.

Principle: If transactions between two separate legal entities (e.g., parent and subsidiary filing a consolidated income tax return) contain the required “indicia of sale” (i.e., title transfer, delivery, payment, etc.), then the sales activity resulting from those transactions constitute “gross receipts” for Florida sales factor purposes.

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Florida Rule 12C-1.0155 Sales Factor of Apportionment. (1) For the purpose of the sales factor, the term “sales”

means all gross receipts received by the taxpayer from transactions and activities in the regular course of its trade or business

*** (j) Intercompany sales. When a consolidated return is filed,

intercompany sales may be included in the sales factor if: 1. Amounts called sales on the books; 2. Amounts invoiced as sold to related party; 3. Actual payment from related party; or 4. Amounts included in consolidated federal income tax

return as ‘gross receipts or sales”.

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Florida Caveat: Coulter decision The transactions were not includable in the

sales factor because no transfer or exchange of goods or services took place and no payment or delivery was ever made. The use of the term “sales” in the formula did not do away with basic elements of sale, … Coulter Electronics v. Department of Revenue, Florida Court Appeals (1978) 365 So2d 806.

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CALIFORNIACal. Code Regs. 18 Sec. 25137

Regs. amended as a result of the Microsoft and GM cases.

Effective for tax years beginning on or after January 1, 2007, the California apportionment factor calculation is to exclude gross receipts from an entity’s treasury functions.


California Microsoft Corporation v. Franchise Tax Board,

39 Cal. 4th 750 (2006)California Supreme Court held “net gains’ derived

from the redemption of marketable securities shall be included in the sales factor and not the “gross proceeds” therefrom.

General Motors v. Franchise Tax Board, 39 Cal. 4th 773 (2006)California Supreme Court held that only the

interest income derived from repurchase agreements (“repos”) shall be included in the sales factor since such instruments are more akin to secured loans.


California 25137. Other apportionment methods. (c) Special Rules – Sales Factor. (1) The following special rules are established in

respect to the sales factor of the apportionment formula:

(2) The numerator and denominator of the sales factor shall exclude interest and dividends from intangible assets held in connection with a treasury function of the taxpayer’s unitary business as well as the gross receipts and overall net gains from the maturity, redemption, sale, exchange or other disposition of such intangible assets.


California 25137. Other apportionment methods. (D) *** 1. “Treasury function” is the pooling, management,

and investment of intangible assets for the purpose of satisfying the cash flow needs of the trade or business, such as providing liquidity for a taxpayer business cycle, providing a reserve for business contingencies, business acquisitions, etc. A treasury function includes the use of futures contracts and options contracts to hedge foreign currency fluctuations.

This subsection is applicable to taxable years beginning on or after January 1, 2007.


Application of SALT Principles

Reduction of the Taxable Base

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Reduction of Taxable Income Base Geoffrey cases (South Carolina, Massachusetts,

etc.) “Economic nexus” principle started appearing in

Geoffrey v. South Carolina. The state won and was allowed to impose its income tax on the out-of-state entity.

The relevant part of these decisions is the creation of deductions in the non-unitary states, by intercompany charges.

CAVEAT: Business purpose is necessary and these types of transactions are disliked by state governments and heavily scrutinized by the courts.


Reduction of Taxable Income Base Traditionally, Delaware Tax Law Sec. 1902(b)

(8) -type holding companies are utilized to reduce taxable base.

Revenue and Deductions in the same amount are included in the Consolidated return, so taxable income does not increase; however,Deductions have increased in non-unitary state

where the operating companies have nexus.

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Reduction of Taxable Income Base Caveats:

Business purpose and economic substance must be present if these transactions are to survive the application of the “sham transaction” doctrine

State courts have been scrutinizing these since the 1990s and knocking them out

Consider a twist: have more than just one type of transaction represented in the intercompany charge (e.g., a royalty fee and general and administrative charge combined)



Sourcing of Sales

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Application of Basic PrinciplesApportionment FactorsSourcing of Sales General sourcing rules

Tangible Property – place of delivery Intangible Property (e.g., gain from the sale of

stock held as an investment) – Owner’s Commercial Domicile or location where intangible is used.

Service Income – • MTC – Greatest Cost of Performance (COP)• MTC Variation – Relative COP• Market Sourcing


CALIFORNIA

CA-Pre 2011 For taxable years ending on or before

1/1/2011, (1) sales from services performed wholly within CA or (2) services performed within and without CA if the “cost of performance” is greater in CA, will be sourced to CA.

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CA-post-2010 For taxable years beginning on or after

January 1, 2011, sales from services are sourced to California to the extent that the purchaser received the benefit of the service in California. [Cal. Rev. & Tax.Cd. §25136(a)(1).]

Bottom line: sales of services are sourced where benefit enjoyed by purchaser (“market-sourcing rule”).


Electing Unitary Filings Federal concept is Affiliated Corporations State concept is Unities Specifically, unities in functional integration,

centralization of management, ownership, economies of scale.

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Unitary Returns:Consolidated or Combined Additional Issues to consider

Consolidated v. Combined• Consolidated = Filing method• Combined = AF calculation

Which entities should be included? Worldwide combined (e.g., CA)? Nexus combined or all?

If NOLs exist, whether or not a particular state allows off-setting among the different entities becomes an issue.


Salt Planning Ideas Billing Company Customer List in DHC Separate Incorporation of Company Assets in

Select States Petition for Alternative Method to determine

Combined Tax (Conn.) or Apportionment Factor (NYS/C)

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Reduction of Taxable Income Base Billing Company

Multi-state filing corporations with significant administrative divisions.

Description This idea involves capturing the billing function currently

performed by the taxpayer into a separate operating subsidiary, BILLING CO.

The taxpayer will transfer its billing function (i.e., personnel and tangible personal property) to BILLING CO in exchange for all of BILLING CO’s stock.

BILLING CO may be incorporated in a low or no state income tax jurisdiction or in the same state where the taxpayer currently carries on the bulk of its administrative functions.

BILLING CO will charge the taxpayer an arm’s length fee for providing its billing services.


Reduction of Taxable Income Base Billing Company

Results/Benefit If BILLING CO is located in a low or no state income tax

jurisdiction, the effective tax rate on the billing service income will be lower overall.

BILLING CO will charge the taxpayer a fee for its services in excess of the cost the taxpayer previously expended for such services.

Additionally, although BILLING CO will have an apportionment percentage of 100% in the state where it does business, the income BILLING CO recognizes may be offset by its expenses.

This planning idea should save state/local corporate income taxes by lowering the overall effective state corporate income tax rate, if planned properly.


Customer List in DHCDescription

In general, the taxpayer contributes its customer lists to NEWCO which is incorporated in a low or no state income tax jurisdiction (e.g., Delaware, Nevada), in exchange for all of NEWCO’s stock. NEWCO charges the taxpayer a fee for the use of its customers lists.

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Customer List in DHCBenefits/Results

By placing the customer list into NEWCO, which is incorporated in Delaware, for example, the taxpayer can potentially protect that income generated by the customer list from state income tax since Delaware would not tax this type of income (i.e., passive income from intangibles). In addition, the taxpayer is able to generate an expense in the amount of the fee for the use of the customer list.


Separate Incorporation of Company Assets in Select States For very profitable multistate companies.

Description Contribute the profitable corporation’s nexus-producing assets

and activities located in high state apportionment jurisdictions into separate corporations to be formed.

Withdraw the profitable corporation from doing business in such high-tax states. The profitable corporation will no longer be subject to state corporate income tax in such states.

Additionally, the income attributable to these newly formed corporations will no longer be subject to state corporate income tax attributable to the profitable corporation in the other states where the profitable corporation continues to do business.


Separate Incorporation of Company Assets in Select States Although the newly created separate corporations will be

subject to 100% apportionment in their respective states, the profitable corporation will charge each of these separate corporations an arms’ length management fee in order to lessen their state corporate income tax burden in such states.Results

The effective state income tax rate for the group should decrease since the profitable corporation’s tax base will be significantly less in the many states where it will continue doing business. In addition, the income which will be generated in the separate corporations will be decreased by a management fee paid.


Petition for Alternate Method To Determine Combined Tax

Criteria This planning strategy applies to taxpayers filing a

combined Connecticut corporation business tax return.Description

Pursuant to Connecticut General Statute §12-223a, taxpayers can petition the Commissioner of Revenue services to use an alternate method of determining their combined measure of tax. This can apply where two or more affiliated companies filing a combined return deem that the method of determining the combined measure of tax unfairly attributes an undue proportion of their total income or minimum tax base to Connecticut.


Petition for Alternate Method ToDetermine Combined Tax The petition to use an alternative method of

determining the combined measure of tax must be submitted in writing to the Commissioner not later than 60 days prior to the due date of the combined return. The commissioner will respond before the due date.

New York State and City Apportionment Factor – Discretionary Adjustment Request


SALT Tax Amnesty Programs and Voluntary

Disclosure Programs

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Voluntary Disclosure Agreements“VDA”

Many states offer voluntary disclosure procedures to taxpayers who have unpaid tax liabilities. In consideration for coming forth and voluntarily disclosing their non-compliance, paying the unpaid tax and, generally, the related interest, most states will waive penalties that would otherwise be imposed and will agree to limit their look-back periods to a set number of years.

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Tax AmnestyA Tax Amnesty program provides comprehensive tax relief. Typically an amnesty program has a very short window of opportunity. The goal is to collect as much back taxes as possible in a very short period of time, usually two or three months. Generally, the state will waive penalties and interest if you file returns and pay your taxes during the amnesty period.

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THE END

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Documents

State and Local Taxes