Current corporate income tax developments.EXECUTIVE SUMMARY * In 2004, many state cases and rulings addressed a variety of apportionment The process by which legislative seats are distributed among units entitled to representation; determination of the number of representatives that a state, county, or other subdivision may send to a legislative body. The U.S. and unitary group In mathematics, the unitary group of degree n, denoted U(n), is the group of n×n unitary matrices, with the group operation that of matrix multiplication. The unitary group is a subgroup of the general linear group GL(n, C). issues. * Several states announced voluntary compliance programs and initiatives for taxpayers involved in tax shelter tax shelter: see tax exemption. activity. * Many states enacted significant statutory changes and issued important rulings on passthrough entities. ********** This two-part article discusses significant state tax developments in the corporate income tax area. Part II addresses apportionment formulas, filing methods/unitary groups, administration and other important miscellaneous issues. During 2004, 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cases were decided; regulations were proposed, issued and modified; and bulletins and rulings were issued, released and withdrawn. Part I of this article, in the March 2005 issue, focused on nexus, Internal Revenue Code The Internal Revenue Code is the body of law that codifies all federal tax laws, including income, estate, gift, excise, alcohol, tobacco, and employment taxes. These laws constitute title 26 of the U.S. Code (26 U.S.C.A. § 1 et seq. (IRC (Internet Relay Chat) Computer conferencing on the Internet. There are hundreds of IRC channels on numerous subjects that are hosted on IRC servers around the world. After joining a channel, your messages are broadcast to everyone listening to that channel. ) Sec. 338(h)(10) transactions, tax base and business/nonbusiness income issues. Part II, below, covers some of the more important developments in apportionment formulas, unitary groups/filing methods, administration and other state corporate tax issues. Apportionment A multistate corporation's business income is apportioned ap·por·tion tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" among the states 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 state's formula. Each ratio is calculated by comparing the corporation's level of a specific activity in the state to the total corporate activity of that type everywhere; the ratios are then summed, weighted (if required) and averaged to determine the corporation's apportionment percentage for the state. The apportionment percentage is then multiplied by total corporation business income. While apportionment formulas vary, many states use a three-factor formula that includes sales, payroll and property factors. Because use of a higher-weighted sales factor generally provides tax relief for in-state corporations, most states accord more weight to the sales factor than to the other factors. 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. * Alaska A Superior Court affirmed (59) that proof of unconstitutional distortion is not required for a company to receive alternative apportionment (Multistate Tax Commission (MTC mtc - A Modula-2 to C translator. ftp://rusmv1.rus.uni-stuttgart.de/soft/Unixtools/compilerbau/mtc.tar.Z. ) Section 18 relief); instead, the requesting party, either the taxpayer or Department of Revenue (DOR Dor or Dora, Canaanite seaport, ancient Palestine (modern Israel), N of Caesarea Palestinae. It was never a Jewish city but rather a Phoenician outpost. It was rebuilt by the Romans; still visible are the ruins of a temple and a theater. ),has only to provide preponderant pre·pon·der·ant adj. Having superior weight, force, importance, or influence. See Synonyms at dominant. pre·pon  der·ant·ly adv. evidence that the (1) statutory formula does not fairly reflect Alaska business activity and (2) proposed alternative formula is reasonable. * Arizona The state Court of Appeals affirmed (60) that the return of principal from short-term investments is not includible in the sales factor denominator, because it is not a "sale" * California Similarly, the California Court of Appeal affirmed (61) that receipts from repurchase agreements and bond maturities within a taxpayer's treasury functions should not be included as gross receipts the total of the receipts, before they are diminished by any deduction, as for expenses; - distinguished from net profits. - Bouvier. See under Gross, a. os> See also: Gross Receipt in the sales factor denominator, because they do not arise from sales transactions. The court also concluded that research and development credits earned by a unitary subsidiary or by other members of a unitary group could only be applied against the parent's tax liability. The state Supreme Court has accepted the appeal of this decision. The FTB FTB Franchise Tax Board (California; they collect income and sales tax) FTB Family Tax Benefit (Australian welfare assistance) FTB First Time Buyer (housing) issued a notice (62) explaining that deviating from the standard apportionment and allocation rules, without receiving prior approval, can result in accuracy-related penalties when a substantial income understatement constitutes negligence; exceptions from the penalty are specifically noted. * Idaho The state Supreme Court affirmed (63) that excluding sales of accounts receivable accounts receivable n. the amounts of money due or owed to a business or professional by customers or clients. Generally, accounts receivable refers to the total amount due and is considered in calculating the value of a business or the business' problems in paying from a taxpayer's sales factor was a reasonable alternative to correct an unusual fact situation. * Illinois A Circuit Court ruled (64) that a taxpayer's sales to certain foreign countries should not be thrown back to Illinois, because the taxpayer was subject to net income taxes in those countries on unrelated dividend and royalty income. The court found that being "taxable" in the destination state or country does not require the company to be "taxable on the sale at issue." * Indiana The DOR ruled (65) that an out-of-state construction equipment financier/lessor must include the value of leased equipment in its property factor, because it retains the rights to (1) unilaterally transfer title to a third party; (2) prevent the lessee from using the equipment in a manner not originally anticipated by the parties; and (3) restrict the lessee from moving the equipment to a location not contemplated in the agreement. * Louisiana The DOR explained (66) that there is no bright-line test to determine a corporation's commercial domicile; instead, each corporation's actual commercial practices, as a whole, must be examined to decide where business is directed and managed. * Massachusetts Ch. 262, HB 4744, Laws of 2004, provides (1) that, for the licensing of intangible property intangible property n. items such as stock in a company which represent value but are not actual, tangible objects. , the income-producing activity will be deemed to be performed in the state in which the property is used; and (2) when a purchasing corporation makes an election under IRC Sec. 338, for apportionment purposes, the target will be treated as having sold its assets. * Minnesota The DOR issued (67) a new form (Form ALT, Application for Alternative Methods of Allocation), required to petition to use an alternate income allocation method. Taxpayers must demonstrate the unfairness of the general income allocation method and the fairness of the proposed alternative method, along with a hypothetical computation of taxable net income under the latter. * Montana The DOR adopted the MTC apportionment provisions for publishers and television/radio broadcasters (68) and also formally adopted the Joyce (69) approach. (70) * New Jersey The Division of Taxation (Division) explained (71) that, under the new sales factor "throw-out" rule, (72) in the case of sales to a state or jurisdiction that does not impose a tax, any sales sourced to that jurisdiction must be "thrown out" of the receipts factor denominator. If the taxpayer is immune from income tax under P.L. 86-272, the sales are thrown out, unless the state subjects the taxpayer to a tax based on business presence or business activity. * New York New York, state, United States New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of A bus service's arrangement for berthing space with the Port Authority of New York and New Jersey Port Authority of New York and New Jersey, self-sustaining public corporation established in 1921 by the states of New York and New Jersey to administer the activities of the New York–New Jersey port area, which has a waterfront of c. was not the requisite interest in real property that would yield "rental" payments for property factor purposes. (73) The New York State Department of Taxation and Finance The New York State Department of Taxation and Finance (NYSDTF) is a core agency of the New York State in the United States of America. The agency is responsible for handling all tax forms and publications. (Department) advised (74) that property factor treatment for the use of satellite transponders depends on the degree of ownership and control of both the transponder A receiver/transmitter on a communications satellite. It receives a microwave signal from earth (uplink), amplifies it and retransmits it back to earth at a different frequency (downlink). A satellite has several transponders. and the satellite. When a company is leasing transponder capacity only for the right to use Federal Communications Commission-designated frequencies, such a right is intangible property excluded from the property factor. The New York State Tax Appeals Tribunal affirmed (75) that New York destination sales of nontaxpayer corporations included in a taxpayer's combined unitary return were properly included in the business allocation percentage's receipts factor numerator numerator the upper part of a fraction. numerator relationship see additive genetic relationship. numerator Epidemiology The upper part of a fraction (i.e., in essence, taking the Finnigan (76) approach), because inclusion was necessary to determine the appropriate business allocation percentage. * New York City New York City: see New York, city. New York City City (pop., 2000: 8,008,278), southeastern New York, at the mouth of the Hudson River. The largest city in the U.S. The New York City Tax Appeals Tribunal held (77) that performing a fabric anti-shrinkage process before subcontracting the cutting and sewing process allowed an apparel wholesaler to use a favorable manufacturer's double-weighted sales apportionment factor for New York City corporate tax purposes. * Ohio The DOR explained the sales factor sourcing provision enacted by Bill 95 (HB 95), Laws 2003 (effective June 26, 2003), and the subsequent amendments to those provisions enacted by Substitute HB 127, Laws 2003 (effective Dec. 11, 2003). (78) These changes adopted the nonbusiness non·busi·ness adj. 1. Unrelated to business or industry. 2. Unrelated to one's own business or employment. income concept for and apportionment factor treatment of business/nonbusiness income items. Because the law was amended twice during 2003, the rules that apply depend on the taxpayer's fiscal year-end Fiscal Year-End The completion of a one-year, or 12-month, accounting period. Notes: The reason that a company's fiscal year often differs from the calendar year and does not close on Dec 31, is due to the nature of company's needs. . * Oregon The DOR issued new and amended rules addressing the (1) apportionment of deferred gains; (2) apportionment for long-term construction contracts; (3) definition of gross receipts for sales factor purposes; (4) valuation of rented property for property factor purposes; and (5) treatment of gain on the sale of partnership interests. (79) The state Supreme Court found (80) that, although the rule permitting an alternative discretionary apportionment formula was promulgated prom·ul·gate tr.v. prom·ul·gat·ed, prom·ul·gat·ing, prom·ul·gates 1. To make known (a decree, for example) by public declaration; announce officially. See Synonyms at announce. 2. after the years at issue, it was clearly intended to retroactively apply to all periods open to examination at the time of issuance. Thus, the DOR could require a unitary financial organization to include intangible personal property in its property factor computation to more accurately reflect income attributable to Oregon. * Pennsylvania The Commonwealth Court held (81) that a corporate taxpayer could not use a payroll factor when it had no employees and all of its services were performed by employees of an out-of-state affiliated company and independent contractors. The DOR ruled (82) that, regardless of corporate domicile and legal tide passage; two entities engaging in a dock-sale scenario must source their sales for state corporate net income tax based on the goods' ultimate destination. It also identified (83) acceptable documentation to support that Pennsylvania dock sales are destined des·tine tr.v. des·tined, des·tin·ing, des·tines 1. To determine beforehand; preordain: a foolish scheme destined to fail; a film destined to become a classic. 2. and accordingly sourced outside the state, for sales factor purposes; invoices reflecting only an out-of-state mailing address are unacceptable, as are seller affidavits or declarations. * Utah The state Tax Commission (Commission) adopted a rule (84) that incorporates the MTC's definition of "gross receipts" and provides that overall net gains from sales of liquid assets Cash, or property immediately convertible to cash, such as Securities, notes, life insurance policies with cash surrender values, U.S. savings bonds, or an account receivable. held in connection with an entity's treasury function have to be reflected in the sales factor. The rule also modified the sourcing of receipts for securities brokers and now requires the average value of securities or commodities used to be included in the property factor. * Vermont Act 152 (H 784), Laws 2004, double-weights the sales factor for tax years beginning after 2005. * Virginia The state Supreme Court held (85) that the Department of Taxation (DOT) erred in excluding amounts a taxpayer paid to third parties from the determination of cost of performance. Unitary Group/Filing Methods * Arizona Following the Federal rules, the DOR ruled that, in a reverse acquisition, the state's consolidated return filing election status follows the corporation--the deemed "true acquirer." (86) * California An FTB Notice (87) explains the state's new water's-edge election statute, which replaced the contract method with a seven-year statutory election applicable to tax years after 2002. * Illinois In a bankruptcy decision, a taxpayer could not offset losses a steel-making subsidiary generated outside of the state against the income of food packaging and other subsidiaries, because they were not functionally integrated. (88) The court held that integration between a parent and its subsidiaries is not enough; the subsidiaries must also be integrated. * Indiana The DOR denied a subsidiary's inclusion in a consolidated return due to questionable nexus and a substantial distortive dis·tor·tive adj. Serving to distort: harsh and distortive peaks in the recorded music; a robust fortissimo without distortive vibration. effect. (89) The subsidiary had argued nexus through borrowed office space, some personal property and part-time employees; however, the DOR concluded that the company had only a "tenuous" in-state connection, but was proposing to import a very substantial net operating loss operating loss The excess of operating expenses over revenue. As with operating income, operating losses exclude revenues and expenses from operations that are not considered a regular part of the business. Also called deficit. Compare operating income. (NOL NOL - Never Offline ) carryover. In another ruling, (90) the taxpayer was required to include its Delaware trademark subsidiary in its combined income tax return, because the intercompany arrangement was a transparent creation of expense that led to state income distortion. * Kentucky A state circuit court upheld (91) legislation enacted in 2000, retroactively prohibiting the granting of refund claims based on unitary return filings for years prior to 1996. * Louisiana The DOR proposed--and subsequently withdrew--a regulation providing that it would generally require income to be calculated on a consolidated basis when intangible holding companies received at least 80% of their noninvestment revenue from licensing intangibles to affiliated companies Affiliated Companies A situation that occurs when one company owns a minority interest (less than 50%) in another company. Also refers to companies that are related to each other in some way. Notes: An affiliated company is sometimes referred to as a subsidiary. . The proposed rule did not limit the DOR's authority to require a consolidated calculation of income in other fact situations. Further, the DOR was not required to find wrongdoing wrong·do·er n. One who does wrong, especially morally or ethically. wrong do or tax avoidance The process whereby an individual plans his or her finances so as to apply all exemptions and deductions provided by tax laws to reduce taxable income.Through tax avoidance, an individual takes advantage of all legal opportunities to minimize his or her state or federal before imposing a consolidated calculation of income. (92) * New York When intercompany royalty rate valuations failed to rebut To defeat, dispute, or remove the effect of the other side's facts or arguments in a particular case or controversy. When a defendant in a lawsuit proves that the plaintiff's allegations are not true, the defendant has thereby rebutted them. TO REBUT. a presumption of distortion, an adminstrative law judge held (93) that another taxpayer had to file a combined report with its affiliated trademark company. Similarly, the state Supreme Court affirmed (94) combined reporting for another taxpayer and its unitary trademark holding companies, because the record indicated no business purpose or economic benefit other than tax avoidance. * New York City The New York City Tax Appeals Tribunal affirmed that intercorporate transactions between various corporate groupings (e.g., trademark, management services, mortgage financing and investment loan companies) were sufficiently at arm's length arm's length adj. the description of an agreement made by two parties freely and independently of each other, and without some special relationship, such as being a relative, having another deal on the side or one party having complete control of the other. and nondistortive, so as not to require forced combined reporting. (95) * Vermont Act 152 (H 784), Laws 2004, requires mandatory combined reporting for tax years beginning after 2005. * Virginia Because a large intercompany receivable between two entities lacked either economic substance or arm's-length terms, the DOT ruled (96) that a taxpayer had to file a consolidated state corporate income tax return with its wholly owned mail-order supply company. Similarly, another taxpayer was required to file a consolidated return with its trademark subsidiary to avoid distortion. (97) In both rulings, the Commissioner found the taxpayers failed to provide the information the DOT requested to substantiate the transaction's substance. Another corporation was required to file a consolidated return with its parent company to avoid distortion, became the parent, which had allocated substantially all of its costs to the corporation, lacked independent economic substance, and the management fee was arm's length. (98) In addition, a consolidated return filing was disallowed (99) as distortive when the required nexus for consolidation was "artificially" created by six out-of-state subsidiaries entering into leases with an in-state affiliate for the sole purpose of moving their property into Virginia to reduce state income tax. The subsidiaries, which reported NOLs, had entered into these leases near the end of the tax year, for instate in·state tr.v. in·stat·ed, in·stat·ing, in·states To establish in office; install. tangible personal property storage of relative minimal value and at minimal rent. However, two other affiliates were required to be included in the consolidated return, because they lacked economic substance and their intercompany loan Intercompany loan Loan made by one unit of a corporation to another unit of the same corporation. transactions were not at arm's length. Administration Tax-Shelter-Related Provisions * California An FTB Notice (100) explained the state's abusive tax shelter Abusive tax shelter A limited partnership that the IRS judges to be claiming tax deductions illegally. abusive tax shelter A tax shelter in which an improper interpretation of the law is used to produce tax benefits that are registration requirements. * Connecticut The Department of Revenue Service (DRS DRS Drives (street suffix) DRS Dispute Resolution Service DRS Doctorandus DRS Department of Rehabilitative Services DRS Direct Registration System (securities) DRS Department of Rehabilitation Services ) administered a compliance initiative that ended July 31, 2004, for all taxpayers that participated in any "potentially abusive" tax shelter designated by the IRS An abbreviation for the Internal Revenue Service, a federal agency charged with the responsibility of administering and enforcing internal revenue laws. as a "listed transaction." (101) * Illinois The FY 2005 budget legislation (102) package included tax shelter reporting requirements similar to the Federal provisions requiring taxpayer disclosure and imposing tax shelter organizer registration and investor list-maintenance obligations. A voluntary compliance program ran from Oct. 15, 2004 through Jan. 31, 2005. * New Jersey The Division Director announced that, to avoid penalties, taxpayers who invested in a variety of bond and option sales strategies, as well as other Federally listed abusive tax avoidance transactions, had until Sept. 15, 2004 to submit a written application to resolve the tax issues. (103) * North Carolina North Carolina, state in the SE United States. It is bordered by the Atlantic Ocean (E), South Carolina and Georgia (S), Tennessee (W), and Virginia (N). Facts and Figures Area, 52,586 sq mi (136,198 sq km). Pop. The DOR (104) announced a voluntary compliance program in which taxpayers can avoid fees, penalties and prosecution if they voluntarily come forward and pay past-due taxes and interest accrued from engaging in income-shifting tax strategies or other tax shelter activities that reduce or eliminate their North Carolina taxes. Taxpayers with current assessments were required to pay the tax and interest by Jan. 31, 2005; all others were required to sign the voluntary compliance agreement by Feb. 28, 2005 and pay the tax and interest by April 15, 2005. * South Carolina South Carolina, state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW). Facts and Figures Area, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15. Similarly, the DOR announced (105) a tax shelter amnesty period under which taxpayers that amended their returns and paid the tax due by Sept. 1, 2004 could avoid penalties and possible civil fraud charges. Other Administrative Provisions * California The SBE SBE - Microsoft Office Small Business Edition held (106) held that foreign affiliates included in the taxpayer's worldwide unitary combined return would not be covered for California purposes by a Federal statute of limitations A type of federal or state law that restricts the time within which legal proceedings may be brought. Statutes of limitations, which date back to early Roman Law, are a fundamental part of European and U.S. law. extension applicable to the taxpayer's Federal consolidated return group. * Florida The DOR adopted a rule (107) granting the director substantial IRC Sec. 482-type adjustment powers and providing information on how a taxpayer may ask the DOR for an adjustment to an item of income, loss, deduction, apportionment factor or exclusion, to clearly reflect Florida net income. * Minnesota The DOR announced that, (108) due to the increasing use of 80/20 foreign operating companies (which are not included in the unitary business return), it will step up audit activities of companies that use them, in the hopes of uncovering income-sheltering abuses and recommending appropriate legislation to eliminate future abuse. * Wisconsin The DOR offered (109) settlement agreements to banks that used out-of-state investment subsidiaries to shelter income. Passthrough Entitles * California Ch. 354 (AB 3073), Laws 2004, authorizes the FTB to enter into voluntary disclosure agreements with qualified limited liability companies (LLCs) and their qualified members. An LLC (Logical Link Control) See "LANs" under data link protocol. LLC - Logical Link Control lost its challenge (110) to the state's method of calculating the annual LLC fee without allowing apportionment between in-state and out-of-state gross receipts. However, the SBE is prohibited from addressing any Constitutional issues involved in the dispute. * Connecticut Public Act 04-216 (HB 5692), Laws 2004, requires most passthrough entities to file a group return on behalf of their nonresident individual partners, or pay the highest marginal tax rate Marginal Tax Rate The amount of tax paid on an additional dollar of income. As income rises, so does the tax rate. Notes: Many believe this discourages business investment because you are taking away the incentive to work harder. on the nonresident partners' distributive share of Connecticut partnership income. The DRS issued (111) two information publications explaining the new law. * Illinois In two unpublished decisions, (112) a state appellate court A court having jurisdiction to review decisions of a trial-level or other lower court. An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. affirmed that unitary treatment of minority-owned partnerships (i.e, which flow through the income and apportionment factors) was valid under the state's combined apportionment regulation, thus subjecting a portion of the partnership income to Illinois tax. * Louisiana A revenue information bulletin (113) explains the filing requirements of single-member LLCs (SMLLCs) and qualified subchapter S Subchapter S IRS regulation that gives a corporation with 35 or fewer shareholders the option of being taxed as a partnership to escape corporate income taxes. subsidiaries for state income and franchise tax purposes. While an SMLLC SMLLC Single Member Limited Liability Company is subject to state income tax as a division of its corporate owner, it is treated as a nontaxable partnership for state franchise tax purposes. The state Court of Appeal affirmed (114) that electing out of IRC subchapter K treatment does not change an entity's tax nature as a partnership in determining application of apportionment and allocation. * Michigan Internal Policy Directive 2004-9 explains the correct method to calculate the Single Business Tax of an entity and its disregarded entities, when special tax base and apportionment provisions apply to one, but not all, entities filing the single return. * New Jersey The state Tax Court ruled (115) that a taxpayer's relationship with a joint business operation was as a partner in a partnership, and that the relationship lacked the necessary unity or sufficient business integration to allow the taxpayer to use the flowthrough method of apportioning ap·por·tion tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" its partnership income. * New York An advisory opinion (116) confirms that income derived from a lower-tier partnership retains its sourcing character at the upper-tier partnership level, unless the latter uses the partnership interest in its New York business. Specifically, nonresident partners' distributive share of an upper-tier "domestic feeder" partnership's distributive share of income, generated by a lower-tier "master fund" partnership that wades in intangible personal property solely for its own account, is not New York-source income. * North Carolina Statutory changes (117) further restrict corporations from effectively reducing their franchise tax base by transferring assets to tax-exempt LLCs. * Ohio The franchise tax year 2005 investors and shareholders reporting requirements have been waived (118) for real estate investment trusts (REITs), regulated investment companies Regulated investment company An investment company allowed to pass capital gains, dividends, and interest earned on fund investments directly to its shareholders so that it is taxed only at the personal level, and double taxation is avoided. , real estate mortgage investment conduits Real Estate Mortgage Investment Conduit (REMIC) A pass-through tax entity that can hold mortgages secured by any type of real property and can issue multiple classes of ownership interests to investors in the form of pass-through certificates, bonds, or other legal forms. and dealers in intangibles that are not at least 20% directly or indirectly owned by a person or their related members, if that person (or any of that person's related members) is an entity other than a publicly waded REIT REIT See: Real Estate Investment Trust REIT See real estate investment trust (REIT). or a trust. * Oklahoma A number of statutory changes and regulatory actions involved the provisions requiring a passthrough entity to withhold tax on nonresident owners. Effective Aug. 29, 2003, passthrough entities are required to withhold tax on distributions to nonresident owners. SB 1556, Laws 2004, provides that such withholding is not required if the Tax Commission determines, by rule, that (1) withholding is not required; (2) the nonresident files an affidavit agreeing to be subject to tax; or (3) the entity is a publicly traded partnership Publicly Traded Partnership A limited partnership that also has interests traded in the equity securities market. Notes: This is also known as a master limited partnership. See also: Master Limited Partnership, Partnership, Public Company (PTP (1) See peer-to-peer. (2) (Picture Transfer Protocol) An ISO standard for transferring photos from a digital camera to a computer or photo printer. ). In addition, under Ch. 518 (HB 2421), Laws 2004, effective July 1, 2004, passthrough entities with total withholding from partners in excess of $500 are required to make equal quarterly estimated payments. The Tax Commission released (119) emergency rule amendments for nonresident withholding. * Pennsylvania A tax policy release provides (120) that, for years after 2002, the net income per books of a corporate member of an LLC excludes the passthrough income/loss from the LLC, but includes distributions. * Rhode Island Rhode Island, island, United States Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches. Ch. 595 (HB 8219), Laws 2004, requires passthrough entities (other than PTPs) to withhold tax at the highest individual rate (9% for corporations) on the Rhode Island-source income of its nonresident owners. * Tennessee For tax periods ending after June 29, 2003, qualifying limited partnerships and LLCs organized exclusively for the purpose of providing affordable housing are exempt from franchise and excise taxes, under HB 3483, Laws 2004. * Virginia Under HB 5018, Laws 2004, pass-through entities are required to file information returns for tax years beginning after 2003. Miscellaneous Items * Arizona The DOR ruled (121) that unless statutory provisions provide otherwise, pre-merger credits can be applied to post-merger liabilities to the extent the liability is attributable to the activities of the same business unit that initially earned the credit. * California The FTB issued a discussion draft (122) of a proposed regulatory amendment to address how to determine deductions attributable to noneffectively connected income of a foreign corporation included in a water's-edge combined report. * Delaware Public Chapter 592, Ch. 256, HB 403, Laws 2004, established a "headquarters management corporation," which is an entity taxable as a corporation that elects to limit its activities in Delaware to investment activities or providing headquarters management services to affiliated corporations. Such entities are subject to state income tax but are eligible for significant credits for adding employees and incurring expenses in the state. * District of Columbia District of Columbia, federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States). Bill 15 1028, Laws 2004, has enacted an annual gross receipts tax A gross receipts tax, sometimes referred to as a gross excise tax, is a tax on the total gross revenues of a company, regardless of their source. It is similar to a sales tax, but it is levied on the seller of goods or services rather than the consumer. ranging from $5,500 (for entities with District gross receipts of $5 million) to $16,500 (for entities with District gross receipts greater than $16 million). * Ohio The Sixth Circuit held (12)3 that an Ohio investment tax credit for manufacturing machinery and equipment installed in the state violates the Commerce Clause, because it encourages in-state investment at the expense of development in other states. The court, however, upheld a personal property tax exemption for businesses that invest in facilities and jobs in economically depressed areas. * Tennessee Public Chapter 592 (HB 3480), Laws 2004, provides that a taxpayer must include in its own income any gains and losses from assets it distributes to a business entity or individual not subject to the Tennessee excise tax Excise Tax 1. An indirect tax charged on the sale of a particular good. 2. A penalty tax applied to ineligible transactions in retirement accounts. This penalty is assessed by and paid to the IRS. Notes: 1. , if those assets are sold within 12 months after the distribution. (59) Alaska DOR v. Magella Healthcare Corp., AK Super. Ct., 1st Jud'l Dist., No. 1JU-04-383 CI (11/24/2004). (60) Walgreen Arizona Drug Co. v. AZ DOR, 97 P3d 896 (AZ Ct. App., Div'n 1, 2004). (61) General Motors Corp. v. Franchise Tax Board (FTB), 16 CA. Rptr. 3d 41 (2004). (62) CA FTB Notice 2004-5 (8/6/04). (63) Union Pacific Corp. v. Comm'r, 83 P3d 116 (ID Sup. Ct., 2004). (64) Morton International, Inc. v. IL DOR, IL. Cir. Ct., Cook Cty., No. 01 L 50752 (1/8/04). (65) IN DOR, Ltr. of Finding 03-0384 (6/1/04). (66) LA DOR, Private Letter Ruling (redacted version) 04-304 (9/13/04). (67) MN DOR, Rev. Notice #04-07 (8/16/04). (68) MT Admin. Rules 42.26.1001-342.26.1003 and 42.26.1101-42.26.1103 (4/23/04). (69) Appeal of Joyce, Inc., CA State Board of Equalization In communications, techniques used to reduce distortion and compensate for signal loss (attenuation) over long distances. (SBE), No. 066-069 (11/13/66), which held that, in computing the numerator of the sales factor for sales into California, P.L. 86-272 must be applied on a corporate--entity basis. (70) MT Admin. Rules 42.26.511 (4/23/04). (71) NJ Div'n of Tax'n, 33 NJ State Tax News 3 (9/1/04); Reg. 18:7-8.7(d). (72) See AB 2501, Laws 2002. (73) In the Matter of Peter Pan Bus Lines Peter Pan Bus Lines is a long-distance bus carrier that operates in the northeastern states of the United States. Over four million passengers travel on Peter Pan's bus routes every year. , Inc., NYS 1. Is not. See Nis. Div'n of Tax App., DTA DTA Drive Through Appraisal DTA Data (File Name Extension) DTA Differential Thermal Analysis DTA Department of Transitional Assistance (Massachusetts) DTA Development Trusts Association Nos. 819131 and 819132 (4/22/04). (74) NYS Dep't of Tax'n and Fin., TSB-A-04(8)C (5/12/04). (75) In the Matter of the Petition of Alpharma, Inc., NYS Tax App. Trib., DTA No. 817895 (8/5/04). (76) Appeal of Finnigan Corp. (Finnigan I), CA SBE, No. 88-SBE-022 (8/25/88) held that, in computing the numerator of the sales factor for sales to other states, P.L. 86-272 must be applied on a unitary-group basis, not on a corporate-entity basis. Appeal of Finnigan Corp. (Finnigan II), CA SBE, No. 88-SBE-022A (1/24/90), stressed that Finnigan I changed only an apportionment rule, not the state's jurisdiction to tax particular corporations. (77) In the Matter of ISCA ISCA International Symposium on Computer Architecture ISCA International Speech Communication Association ISCA International Speedway Corporation (stock symbol) ISCA International Society for Computers and Their Applications Corp., NYC NYC abbr. New York City NYC New York City Tax App. Trib., TAT(H) 02-9(GC) (7/22/04). (78) OH Dep't of Tax'n, CFT CFT complement fixation test; see under fixation. CFT complement fixation test. Info. Rel. 2004-01 (4/19/04). (79) OR Admin. Rules 150-314.615-(F), 150-314.665(2)-(A) and-(B), (5) and 6(C) and 150-316.127-(D)(1)(d). (80) U.S. Bancorp v. DOR, OR Sup. Ct., Dkt. No. SC S51013 (12/16/04). (81) UPS Worldwide Forwarding v. Comm'th of PA, PA Comm'th Court, Nos. 62-65 F.R. 2001 (12/8/2004). (82) PA DOR, Legal Letter Ruling CRP-04-002 (7/8/04). (83) PA DOR, Corp. Tax Statement of Policy 2004-02 (11/9/04). (84) UT R-865-6F-36 (effective 10/19/04). (85) General Motors Corp. v. Comm'th of VA, 602 SE2d 123 (2004). (86) AZ DOR, Corp. Tax Ruling CTR See click-through rate. 04-1 (7/13/04). (87) CA FTB Notice 2004-2 (5/3/04). (88) Re Envirodyne Industries Inc., 354 F3d 646 (7th Cir. 2004). (89) IN DOR, Ltr. of Finding 02-0501 (10/1/04). (90) IN DOR, Ltr. of Finding 00-0379 (2/1/04). (91) Johnson Controls, Inc. v. Rev. Cabinet, KY Cir. Ct., Franklin Cty., Div'n II, Nos. 00-CI-00523 and 00-CI-00661 (7/1/04). (92) LA Proposed Rule 1138 (12/20/04). (93) In the Matter of Lowe's Home Centers, Inc., NY Div'n of Tax Appeals, ALJ ALJ Administrative Law Judge ALJ Association for Legal Justice (Northern Ireland) Unit, DTA No. 818411 (9/30/04). (94) In the Matter of Sherwin-Williams Co. v. Tax App. Trib., 784 NYS 2d 178 (NY App. Div., 2004). (95) In the Matter of Toys "R" Us-NYTEX, NYC Tax App. Tribunal, TAT(E) 93-1039(GC) (1/14/04). (96) VA Pub. Doc. No. P.D. 04-88 (8/31/04). (97) VA Pub. Doc. No. P.D. 04-159 (9/30/04). (98) VA Pub. Doc. No. P.D. 04-186 (10/8/04). (99) VA Pub. Doc. No. P.D. 04-188 (10/8/04). (100) CA FTB Notice 2004-1 (1/30/04); for background, see Salmon and Amitay, State and Local Taxes, "California Taxpayer Disclosure Requirements," 35 The Tax Adviser 576 (September 2004). (101) CT DOR, Media Release (6/16/04). (102) See IL Public Act 93-0840 (SB 2207). (103) NJ Div'n of Tax'n, 33 NJ State Tax News 2 (7/26/04). (104) NC Voluntary Compliance Program Letter, signed by Sec'y Tolson (12/28/04). (105) SC DOR, News Release (8/11/04). (106) Re Magnetek, Inc., CA SBE, No. 198051 (1/27/04). (107) FL Admin. Code Ann. Rule 12C-1.044 (effective 10/4/04). (108) MN DOR, News Release (8/23/04). (109) WI DOR, Ltr. to Wisconsin Bank Executives (7/27/04). (110) In the Matter of Northwest Energetic Services LLC, CA SBE, No. 236696 (10/19/04). (111) CT DOR, IP 2004(12) and IP 2004(13)(6/8/04). (112) BP Oil Pipeline Co. and Unocal Pipeline Co. v. Dep't, IL App. Court, 1st Dist., Dkt. Nos. 1-01-2364 and 1-01-2365 (5/21/04) and Exxon Corp. v. Dep't, IL App. Court, 1st Dist., Dkt. No. 1-01-3302 (5/21/04). (113) LA DOR, Rev. Info. Bull. No. 04-003 (7/30/04). (114) Unocal Pipeline Co. v. LA DOR, LA Ct. of App., 1st Cir. (12/30/04). (115) Chiron Corp. v. Dir., Div'n of Tax'n, NJ Tax Court, Dkt. No. 120-1999 (11/19/04). (116) NYS Dep't. of Tax'n and Fin., TSB-A-04(6)I (10/25/04). (117) See Ch. 170 (SB 1145), Laws 2004 and Ch. 74 (SB 51), Laws 2004. (118) OH Tax Comm'r Journal Entry (6/28/04). (119) OK Tax Comm'r, Emergency Amendments to Rule 710:90-3-11 (10/02/04). (120) PA DOR Letter (3/30/04). (121) AZ DOR, Private Taxpayer Ruling LR04-002 (3/2/04). (122) FTB Notice 2004-8 (12/1/04). (123) Curio cu·ri·o n. pl. cu·ri·os A curious or unusual object of art or piece of bric-a-brac. [Short for curiosity. v. DaimlerChrysler, Inc., 386 F3d 738 (6th Cir. 2004). Karen J. Boucher, CPA (Computer Press Association, Landing, NJ) An earlier membership organization founded in 1983 that promoted excellence in computer journalism. Its annual awards honored outstanding examples in print, broadcast and electronic media. The CPA disbanded in 2000. Partner Deloitte Tax LLP LLP - Lower Layer Protocol Milwaukee, WI Jason Clegg, CPA Manager Deloitte Tax LLP Washington, DC Shona Ponda, J.D. Manager Deloitte Tax LLP Atlanta, GA For more information about this article, contact Ms. Boucher at kboucher@deloitte.com |
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