Current corporate income tax developments: This two-part article discusses a myriad of recent state tax activity in the corporate income tax area. Part I addresses nexus, IRC sec. 338(h)(10) transactions, allocable/apportionable income and tax base.

EXECUTIVE SUMMARY

* Numerous cases and rulings addressed the state tax base and nexus issues in New York and in many other states.

* During 2005, a number of states decoupled from the IRC Sec. 199 deduction, requiring an addback to the state tax base.

* Several cases and rulings addressed the effects of IRC Sec. 338(h)(10) and allocable and apportionable income issues.

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During 2005, numerous state statutes were added, deleted or modified; court cases were decided; regulations were proposed, issued and modified; and bulletins and rulings were issued, released and withdrawn. This two-part article focuses on some of the more interesting items in the following corporate income tax areas: nexus; Internal Revenue Code (IRC) Sec. 338(h)(10) transactions; allocable/apportionable income; tax base; apportionment formulas; filing methods/unitary groups and administration. It also includes several other significant state tax developments. The first four areas are covered in Part I, below; the remaining areas will be covered in Part II of this article, in the April 2006 issue.

Nexus

* Alabama

The Chief Administrative Law Judge (ALJ) ruled (1) that an out-of-state railcar leasing company was not doing business or deriving income from sources in Alabama based merely on a lessee's use of railcars in the state. The leases were executed, the fixed lease payments were generally made, and the railcars were retrieved and returned, in either Illinois or Texas.

* Connecticut

SB 1232, Laws 2005 excludes from the definition of "doing business" wade show activity limited to displaying goods or promoting services when no sales are made, any orders received are sent outside the state for acceptance/rejection and fulfillment, and the activity is limited to 14 days per year.

* Georgia

Among other provisions, HB 488, Laws 2005, expands nexus to include corporations "deriving income from sources within" the state to the extent permitted by the U.S. Constitution.

* Idaho

The State Tax Commission ruled that an out-of-state household products company that sold nonexclusive franchise rights to in-state contractors had nexus, because the in-state contractors conducted numerous solicitation and business marketing activities on the company's behalf. (2)

* Indiana

The Department of Revenue (DOR) ruled that a trademark holding company had acquired economic nexus for adjusted gross income tax purposes through its exclusive license of trade and service marks to affiliated in-state retail stores. (3) The DOR also held that an out-of-state credit-card servicing company had nexus, based on services provided to resident credit-card holders on behalf of affiliate issuing banks. (4)

* Kentucky

Among other provisions, HB 272, Laws 2005, adopted a "doing business" nexus standard that includes (1) owning or leasing property, employing one or more individuals, maintaining an interest in a general partnership doing business; (2) deriving income from, or attributable to Kentucky, directly or indirectly from a trust doing business in the state; or (3) directing activities at Kentucky customers for the purpose of selling them goods or services.

* Louisiana

Reversing and remanding a lower court decision, the state Supreme Court held (5) that the state has personal jurisdiction over a nonresident corporate shareholder to tax the investment (dividend) income received from a corporate real estate investment trust (REIT) that received rent from land located in the state.

* Massachusetts

The Appellate Tax Board (ATB) held (6) that a nonresident corporate limited partner in a utility partnership was deemed to be doing business from attribution through the partnership and, thus, was subject to the state utility corporation excise tax on its share of partnership income earned in Massachusetts.

* Michigan

The Court of Appeals held (7) that an out-of-state business whose sole presence was sales solicitation was not subject to the state's single business tax (SBT) for tax years prior to the release of Gillette (8) (which held that the SBT is not subject to RL. 86-272 limitations), because the business had relied on a then-existing favorable departmental ruling that exempted it from the SBT under RL. 86-272.

* New Jersey

In a case involving a trademark subsidiary, the Appellate Division of the New Jersey Superior Court held (9) that the U.S. Supreme Court's physical presence ruling in Quill Corp. (10) applies only to sales and use taxes; physical presence is not required for income tax purposes.

* New Mexico 

The state Supreme Court let stand without hearing, and allowed to be filed, the Court of Appeals decision that income from licensing trademarks to an in-state affiliate is subject to corporate income tax. (11)

* New York

The Department of Taxation and Finance (Department) advised (12) that an Ohio-based professional employer organization (PEO) did not have nexus from merely processing payroll checks for two New York residents who work outside the state as truck drivers for an Ohio-based trucking company. Even though New York income tax was withheld, the PEO was not deemed to be doing business, employing capital, owning or leasing property or maintaining an office in the state. Similarly, the Department advised (13) that an out-of-state corporation will not have nexus merely from acting as the administrative payer of wages to New York employees working for a subsidiary, even if the parent is treated as the "employer" for Federal income tax withholding purposes. In other rulings, the Department advised that:

* Delivery of ready-mix cement via cement mixers is a P.L. 86-272 protected activity, when the concrete is first mixed at a business's out-of-state location. However, RL. 86-272 protections will be exceeded if the concrete ingredients are mixed by the business's trucks while in transit to a New York delivery location. (14)

* The in-state presence of a sales representative's company-owned laptop computer and the use of his New York home as an office qualified as P.L. 86-272 protected activities. (15)

* An out-of-state independent brokerage company did not acquire nexus when it obtained the rights to receive future New York lottery prize annuity payments from the original winners. (16)

* An out-of-state company performing emergency response/alarm system monitoring services for New York customers from its out-of-state location via telephone lines and radio signals does not have nexus, as long as its relationship with the third-party independent contractors that buy and install monitoring equipment in New York homes does not evolve into an agency relationship. (17)

* An out-of-state company was not subject to franchise tax because in being a defendant in an in-state product liability case it was not in pursuit of profit and gain, and its agreement with an in-state university merely allowed it to operate as an independent licensee that could sell products developed by the university. (18) The manufacturer's other in-state activities were limited to sales solicitation protected under P.L. 86-272 and occasional "de minimis" client repair work.

* North Carolina 

The U.S. Supreme Court denied A&F Trademark, Inc.'s petition to consider whether the physical presence nexus standard established in Quill applies to all state taxes, or only to state sales and use taxes. (19) The state Supreme Court denied review of the Court of Appeal's decision, which had held that A&F Trademark Inc., et al. (the Limited's intangible holding companies) have the requisite nexus for the state to impose income tax on the trademark companies. (20)

* Oklahoma

The Court of Civil Appeals held (21) that the state may constitutionally impose tax on a royalty earned under a licensing agreement based on the amount of Oklahoma sales. The Tax Commission held (22) invalid an administrative rule that fists merchandise delivery into the state via company-owned leased vehicles as an unprotected activity under P.L. 86-272.

* Pennsylvania

The DOR ruled (23) that an out-of-state building supplies retailer is not subject to tax merely through common carrier delivery to a contractor's in-state worksite, as long as all related orders and negotiations are conducted outside the state.

* South Carolina 

HB 3006, Laws 2005, provides that nexus will not be established merely because an entity owns or uses an instate "distribution facility," owns or leases property at an in-state distribution facility that is used at or distributed from the facility, or sells property shipped or distributed from such a facility.

* Tennessee

The DOR ruled (24) that an out-of-state S corporation will not be subject to franchise/excise tax once it forms a qualified subchapter S subsidiary (QSub) to house its in-state manufacturing facility, as long as the parent has no other Tennessee activity.

* Texas

The Court of Appeals ruled (25) that under statute, regulation and longstanding case law, the net worth component of the franchise tax is not covered by EL. 86-272.

* Virginia

The Department of Taxation (DT) ruled (26) that a limited liability company (LLC) did not have Virginia nexus, even though its was organized in the state and, for administrative convenience, used an in-state third-party accounting firm from which it occasionally purchased financial services as its address for financial records.

It also ruled (27) that an out-of-state holding company deriving income solely from interest on loans made to its wholly owned subsidiary, was deemed to have Virginia commercial domicile and was subject to tax on 100% of its income, because (1) it lacked property and payroll; (2) its affairs were primarily conducted by officers located at the subsidiary's Virginia office; and (3) no other state had jurisdiction to impose a net income-based tax on it.

In a separate ruling, (28) a company did not have nexus if its only connection was through an Internet link on a retail partner's website maintained on a server in Virginia.

In response to a state Supreme Court decision holding that the DT erred in excluding amounts a taxpayer paid to third parties from the apportionment factor of financial corporations, the DT issued Tax Bulletin 05-3, (29) announcing that pending a full review of the decision, it will not assert that nexus is created solely by costs from the use of independent contractors located in the state.

* West Virginia 

A Circuit Court reversed the decision of the Office of Tax Appeals and held that a Delaware bank had nexus solely due to the issuance of credit cards and the isolated and sporadic use of in-state attorney services and state courts. (30)

Federal Legislation

HP. 1956, the Business Activity Tax Simplification Act of 2005, reintroduced legislation that would amend state jurisdictional standards. In requiring an entity's "physical presence" for imposing state and local net income taxes and "other business activity taxes," it provides that certain in-state activities would not constitute physical presence and applies P.L. 86-272 to all business activity taxes and transactions, rather than limiting it to net income taxes for sales of tangible personal property.

IRC Sec. 338(h)(10) Transactions

* Idaho

The State Tax Commission held (31) that gains from an IRC Sec. 338(h)(10) deemed asset sale of a subsidiary was apportionable business income under the functional test, because the business fine had constituted an integral part of its unitary business operations.

* Illinois

The state Supreme Court (32) denied the DOR's petition for leave to appeal the Illinois Appellate Court's decision that gain on the sale of a foreign insurance company's stock was nonbusiness income, because its IRC Sec. 338(h)(10) deemed liquidation election constituted a cessation of the business.

* Missouri

The Administrative Hearing Commission (AHC) ruled (33) that the gain resulting from an IRC Sec. 338(h)(10) deemed asset liquidation was nonbusiness income, because the liquidation was not in the regular course of its trade or business, nor an integral part of its regular business operations.

* Virginia

A company that filed a combined state income tax return had to include, as apportionable business income under the state's Federal conformity provisions, gains from an IRC Sec. 338(h)(10) deemed asset sale recognized by a second-tier subsidiary on the sale of its stock by an out-of-state first-tier subsidiary. (34) An argument for alternative apportionment was also denied, as the statutory method was rationally related to the in-state activities conducted by the second-tier subsidiary.

Allocable/Apportionable Income

* California

The Court of Appeal affirmed (35) that, although the proceeds were distributed to its parent corporation, gain from the sale of wholly owned subsidiary stock was apportionable business income under the functional test, because the sold subsidiary was part of the taxpayer's unitary business.

The Franchise Tax Board (FTB) explained (36) that earnings from the interim investment of dividend proceeds repatriated under IRC Sec. 965 constitute apportionable business income if the repatriated funds are earmarked to serve in a taxpayer's unitary trade or business under its domestic reinvestment plan. In cases of "financial stabilization" earmarking via debt repayment, business/nonbusiness characterization will depend on the character of debt that is to be repaid with the dividends.

* Indiana

The DOR ruled (37) that an out-of-state corporation was required to classify sale proceeds from three of four business lines as apportionable business income under the state's functional test, because the operations constituted an integral part of its overall business enterprise. The sales were deemed generally to occur as part of the company's strategic refocusing efforts, when the company had claimed business expenses and depreciation on the underlying assets prior to selling them. The company was allowed to allocate a portion of gain from selling a fourth business line outside the state as nonbusiness income, as it had originally purchased this line only to acquire other desired assets.

* Iowa

The state Supreme Court held (38) that the taxpayer could not subtract a nonbusiness capital gain that had already been completely offset by a capital loss carryback in calculating the "Federal taxable income" starting point.

* Louisiana

For tax years beginning after 2005, HB 679, Laws 2005, generally exempts dividend and interest income from tax. Prior to this law change, dividend and interest income was treated as allocable income sourced to Louisiana if the recipient's commercial domicile was in the state.

* Massachusetts

The ATB held (39) that transactions between an instate finance company and its affiliates represented financed sales of equipment generating allocable interest income, rather than apportionable rental income, because the finance company did not retain ownership in the equipment.

* Missouri

The AHC ruled (40) that long-term capital gains on stock sold were nonbusiness income, because the company's acquisition, management and disposition of the stock did not constitute an integral part of its trade or business operations.

* South Carolina

HB 3768, Laws 2005, allocates only dividends received from stock not connected with the taxpayer's business, to the corporation's principal place of business. Previous law allocated all dividends (whether or not connected with the taxpayer's business) in this manner.

State Tax Base

The majority of states imposing a corporate income-based tax begin the computation of state taxable income with taxable income as reflected on the Federal corporate income tax return (Form 1120, U.S. Corporate Income Tax Return). These states use either taxable income before net operating loss (NOL) and special deductions (Line 28), or taxable income (Line 30). Certain state-specific addition and subtraction modifications are then applied to arrive at the state tax base. Below is a summary of the significant changes to the states' tax bases.

Deductions Related to Dividends

* Kentucky

The Board of Tax Appeals ruled that a KEIT that owned real property in the state was allowed dividends-paid deductions (DPD) pursuant to Federal conformity statutes that do not specifically disallow IRC Sec. 857 deductions. (41)

* Louisiana

For tax periods beginning after 2005, a REIT is not allowed a DPD unless: (1) it is a publicly traded REIT; or (2) not more than 50% of its voting power or value is directly or indirectly owned by a single corporate taxpayer (that itself is not a REIT). (42)

* Massachusetts

The ATB held (43) that a corporate shareholder prohibited for Federal tax purposes from claiming a dividends-received deduction (DRD) for amounts distributed by its REIT was also barred from taking a DRD for state tax purposes under general Federal conformity principles.

* New Jersey

The Division of Taxation has proposed amending Subchapter 7 of N.J.A.C. 18 to provide that the DRD is not allowed for dividends from a REIT. (44)

* North Dakota

The state Supreme Court affirmed (45) that the IRC Sec. 78 "foreign dividend gross-up" is not included in the statutory definition of "foreign dividends," and allowed a partial exclusion in determining state taxable income.

Intercompany Expenses

* Georgia

For tax years beginning after 2005, HB 191, Laws 2005, requires, subject to a few safe-harbor exceptions, the addback of otherwise deductible interest and intangible expenses directly or indirectly paid to a related member.

* Kentucky

For tax years beginning after 2004, HB 272, Laws 2005, disallows intangible interest expenses and management fees paid to related entities (a few safe harbors are provided). According to a representative from the state Budget Director's Office, HB 272 was also intended to disallow intercompany intangible expenses; technical corrections will be sought in 2006 to correct this error for tax years beginning after 2004.

* Louisiana

A district court granted summary judgment for the taxpayer and held (46) that interest resulting from internal leveraging was deductible.

* Maryland

For tax years after 2004, HB 638 and SB 341, Laws 2005, modified the intercompany addback law by providing that specified taxes imposed by foreign nations that have entered into comprehensive tax treaties with the U.S. must be taken into account for purposes of specified exceptions to the requirement that otherwise deductible interest and intangible expenses paid by a corporation to related entities be added back.

* Massachusetts

The Dog. has issued a working draft of Regulation Sec. 63-31-1, which requires corporations to add back certain deductions for related-member interest and intangible expenses.

* South Carolina

HB 3767, Laws 2005, disallows deductions for the accrual of an expense or interest if the payee is a related person and the payment is not made in the tax year of accrual or before the payer's income tax return is due for the tax year of accrual. Interest deductions related to debt obligations issued as a dividend or paid in lieu of dividends also will be disallowed, unless the Director is satisfied that tax avoidance is not a significant purpose of the transaction.

* Virginia

The DT disallowed (47) intercompany royalty expenses and related interest paid by a parent corporation to its out-of-state trademark subsidiary, because the arrangement improperly reflected business done in the state. In another ruling, it disallowed, (48) among other things, a request for an interest expense allocation from a parent to a group of related entities, because the interest was ruled as not directly benefiting the group.

NOLs

* Indiana

The DOR ruled (49) that a company that filed Indiana Financial Institution returns was not entitled to carry forward an acquired brokerage subsidiary's net operating loss (NOL) carry forward that was created under the state's adjusted gross income tax, because the two taxing schemes are operationally and functionally distinct and prohibit offsetting the loss generated under one against the income of the other.

* Georgia

Among other provisions, HB 488, Laws 2005, provides for the treatment of state NOLs.

* Kentucky

HB 272, Laws 2005, eliminated the NOL carryback for tax years beginning after 2004.

* Maine The DOR issued guidance providing numerous examples clarifying the state's modifications to Federal NOLs. (50)

State Taxes

* Indiana

The DOR ruled (51) that a manufacturer is required to add back property taxes it had expensed and deducted for Federal income tax purposes, to compute its state adjusted gross income tax base.

* Missouri

The DOR has released a second draft of regulation 12 CSR. 10-200.010, explaining which state taxes have to be added back in computing the corporate income tax base.

* New Jersey

The state Tax Court held (52) that the New Jersey corporation business tax is the state's only tax subject to the state tax addback requirement.

* Pennsylvania

The DOR has revised Corporate Tax Bulletin No. 97, which identifies specific state taxes that have to be added back to Federal taxable income in computing the corporate tax base.

Qualified Production Activities Deduction

Under IRC Sec. 199, eligible taxpayers may claim a qualified production activities deduction of 3% in 2005 and 2006, 6% in 2007-2009, and 9% in 2010 and thereafter. During 2005, a number of states decoupled from this Federal deduction, thus requiring taxpayers to add back the deduction in computing the state tax base. Details regarding the states' conformity to this deduction can be found on the Federation of Tax Administrators' website, at www.tax admin.org/fta/rate/B-2505.html.

Other Modifications

* California

A superior court reversed (53) the FTB to hold that a combined group was not required to offset any of its interest expenses against excluded dividends received from its wholly owned insurance companies under Ceridian, (54) because the group effectively showed that the interest was directly attributable to debt incurred in the active conduct of its consumer finance and real estate business lines (both of which generated taxable income), and the debt did not exceed the reasonable needs of these business lines.

* Georgia

HB 488, Laws 2005, (1) "clarified" the requirements for the subtraction from taxable income of interest or dividends on U.S. obligations, by providing that not only are the direct expenses related to such income disallowed, but also the indirect expenses; and (2) provided conformity to the Federal treatment of like-kind exchanges (regardless of the property's location). Previously, non-recognition treatment was allowed only for property located in Georgia.

* Michigan

The DOT determined (55) that insurance premiums for directors' and officers' liability coverage and/or personal liability coverage for employees are considered "compensation" for purposes of the SBT addback, because the insurance is purchased to protect employees, officers and directors from personal liability.

The state Court of Appeals reversed (56) the Court of Claims and held that the SBT's site-specific capital acquisition deduction in effect from 1997-1999 was valid, and did not violate the Commerce Clause's internal consistency requirement.

* Oklahoma

For tax years beginning after 2005, HB 1547, Laws 2005, allows corporations to deduct net capital gains derived from the disposition of (1) real or tangible personal property located in the state and held for at least five years or (2) stock or ownership interests in certain Oklahoma-headquartered companies, LLCs or partnerships held for at least three years.

* Tennessee

The DOR explained (57) that under the provisions of Public Chapter 98, a taxpayer may deduct from net earnings for excise tax purposes 75% of the value of a charitable donation made to a nonprofit corporation, association or organization, if the donation meets specified criteria.

(1) Union Tank Car Co. v. AL Dep't of Rev. (DOR), Admin. Law Div., Dkt. No. Corp. 04-247 (1/11/05).

(2) Idaho State Tax Comm., Decision No. 17948 (10/13/05).

(3) IN DOLL, Ltr. of Finding No. 04-0251 (5/1/05).

(4) IN DOR, Ltr. of Finding No. 044)430 (10/1/05).

(5) Bridges v. Autozone Properties, Inc., 900 So.2d 784 (LA Sup. Ct. 2005), rev'g and remd'g 873 So.2d 25 (La. App. 1st Cir. 2004).

(6) Utelcom, Inc. v. Comm'r, MA ATB, Dkt. No. C262339 (1/31/05).

(7) International Home Foods, Inc. v. Dep't of Treasury (DOT), MI Ct. App., Nos. 253748 and 253760 (10/4/05). A dissenting opinion argued that the court had already ruled that Gillette, note 8 infra, applies retroactively and that holding otherwise "creates an impermissible conflict with previously published opinions of this Court." Earlier in 2005, the court had reached an opposition conclusion on this issue in J. W. Hobbs Corp. v. DOT, MI Ct. App., No. 254069 (9/1/05).

(8) The Gillette Co. v. DOT, 497 NW2d 595 (MI Ct. App. 1993).

(9) Lanco, Inc. v. Director, DOR, 379 NJ Sup'r. 562 (8/24/05).

(10) Quill Corp. v. North Dakota, 504 US 298 (1992).

(11) Kmart Corp. (f/k/a Kmart Properties, Inc.) v. Tax' n and Rev. Dep't, NM Sup. Ct., No. 27,269 (12/29/05).

(12) NYS Dep't of Tax'n and Fin., TSB-A-04(17)C (Humacare-Care Staff, Inc.) (12/13/04).

(13) NYS Dep't of Tax'n and Fin., TSB-A-05(5)C (3/10/05).

(14) NYS Dep't of Tax'n and Fin., TSB-A-05(3)C (3/10/05).

(15)NYS Dep't of Tax'n and Fin., TSB-A-05(7)(C) (4/4/05).

(16) NYS Dep't of Tax'n and Fin., TSB-A-05(12)C (Conway Member Corp.) (9/27/05).

(17) NYS Dep't of Tax'n and Fin., TSB-A-05(13)C (SafetyCare, Inc.) (10/24/05).

(18) NYS Dep't of Tax'n and Fin., TSB-A-05(17)C (Wausau Tile, Inc.) (12/12/05).

(19) A&F Trademark, Inc., 126 S.Ct. 353 (2005).

(20) A&F Trademark, Inc., v. Tolson, 605 SE2d 187 (NC App. 2004).

(21) Geoffrey Inc. V. Tax Comm., OK Ct. of Civ. App., Case No. 99,938 (12/23/05).

(22) OK Tax Comm., Precedential Decision No. 2005-05-10-22 (5/10/05).

(23) PA DOR Legal Ltr. Ruling No. CRP-05-002 (2/4/05).

(24) TN DOR Rev. Ltr. Ruling No. 05-07 (1/31/05). Note, the QSub reports on its own Tennessee franchise and excise tax return based on a separate company pro-forma Federal income tax return.

(25) INOVA Diagnostics, Inc. v. Compt'r, 166 SW3d 394 (TX Ct. of App. 2005).

(26) VA Pub. Doc. No. 05-15 (2/7/05).

(27) VA Pub. Doc. No. 05-90 (6/9/05).

(28) VA Pub. Doc. No. 05-128 (8/2/05).

(29) VA Tax Bulletin 05-3 (4/18/05).

(30) Comm'r v. MBNA America Bank, WV Cir. Ct., No. 04-AA-157 (6/27/05).

(31) ID State Tax Comm., Decision No. 18340 (6/7/05).

(32) American States Insurance Co. v. Director, pet. for leave denied, 829 NE2d 786 (2005).

(33) ABB C-E Nuclear Power, Inc. v. Director, No. 04-0189RI (6/23/05).

(34) VA Pub. Doc. No. 05-157 (10/6/05).

(35) Jim Beam Brands Co. v. FTB, 34 Cal. Rptr. 3d 874 (2005).

(36) CA FTB Legal Ruling No. 2005-02 (7/8/05).

(37) IN DOR, Ltr. of Finding No. 03-0254 (7/1/05).

(38) General Electric Co. v. Bd of Tax Review, 702 NW2d 485 (2005).

(39) Bayer Corp. v. Comm'r of Rev., MA ATB, Dkt. Nos. F239697, F239698 and F245722 (9/8/05).

(40) J.R. Simplot Co. v. Director of Rev., MO AHC, No. 03-1990 RF (5/13/05).

(41) Autozone Development Corp. v DOR, KY Board of Tax App., Order No. 19382 (10/10/05).

(42) AHB 888, Laws 2005.

(43) BankBoston Corp. v. Comm'r, MA ATB, Dkt. No. C270546 (9/6/05).

(44) The proposed rule is promulgated following the opinion rendered by the New Jersey Tax Court in UNB Investment Co., Inc., v. Director, NJ Div. of Tax'n, 21 N.J. Tax 354 (Tax 2004), which allowed the DRD for REIT dividends, because the Division had not promulgated a rule informing the public that such a DRD was not allowed.

(45) Amerada Hess Corp. v. Comm'r, 2005 ND 155 (8/31/05).

(46) Cynthia Bridges, et al. v. RJ. Reynolds Tobacco Co., LA Parish of Orleans District Court (2005).

(47) VA Pub. Doc. No. 05-29 (3/2/05).

(48) VA Pub. Doc. No. 05-30 (3/10/05).

(49) IN DOR, Ltr. of Finding No. 04-0179 (9/1/05).

(50) Guidance on Maine Modifications Related to Federal NOLs, ME DOLL (1/31/05).

(51) IN DOR, Ltr. of Finding No. 03-0181 (9/1/05).

(52) Ross Fogg Fuel Oil Co. v. Div'n of Tax'n, NJ Tax Court, Dkt. No. 006544-03 (6/7/05).

(53) American General Realty Investment Corp., Inc. v. FTB, CA Sup'r Ct., San Francisco Cty., No. CGC-03-425690 (4/28/05).

(54) Ceridian Corp. v. FTB, 85 Cal.App.4th 875 (2000).

(55) MI Internal Policy Directive 2005-04 (12/14/05).

(56) Dana Corp. v. DOT, 267 Mich. App. 690 (2005).

(57) TN DOR Excise Tax Notice No. 05-04 (10/12/05).

Karen J. Boucher, CPA 

Partner

Deloitte Tax LLP 

Milwaukee, WI

Shona Ponda, J.D.

Manager

Deloitte Tax LLP

Atlanta, GA