Current corporate income tax developments.

EXECUTIVE SUMMARY

* A number of states passed laws or issued regulations that modified their apportionment formulas or specified that certain items were to be included or excluded in apportionment factors. Colorado switched from a multi-factor to a single-factor apportionment formula.

* Unitary group/filing issues were addressed in state court decisions, legislation, regulations, and rulings. Massachusetts passed legislation requiring unitary combined reporting for tax years after 2008.

* Massachusetts passed legislation that provides for a phased-in reduction in its corporate tax rate to 8% and in its financial institutions tax rate to 9% for 2012. Similarly, Kansas passed legislation that reduces its former 7.35% corporate income tax rate to 7% for tax years beginning after 2010.

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During 2008, 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were decided; regulations were proposed, issued, and modified; and bulletins and rulings were issued, released, and withdrawn.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 2009 issue, focused on nexus, allocable/apportionable income, and tax base. Part II, below, covers some of the more important developments in apportionment, unitary groups/ filing methods, administration, flowthrough entities, and other significant corporate state tax issues.

Apportionment

A multistate corporation apportions its business income among the states using an apportionment percentage for each state having jurisdiction to tax the corporation. To determine the apportionment percentage, the corporation computes a ratio 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 corporation 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. States may also use changes in the apportionment formula 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.

Gross Versus Net Proceeds 

California

The California Office of Administrative Law issued final approval of amended Regulation [section] 25137(c)(1)(D) to exclude certain receipts of a corporation's treasury function from the sales factor of the corporate income tax apportionment formula. For tax years beginning after 2006, the amended regulation excludes interest and dividends from intangible assets held, as well as gross receipts and overall net gains from the maturity, redemption, sale, exchange, or other disposition of such intangible assets.

In the first "gross versus net" sales factor apportionment administrative decision since the Microsoft (1) and General Motors Corp. (2) California Supreme Court cases, the California State Board of Equalization (SBE) ruled in favor of the taxpayer, finding that the California Franchise Tax Board (FTB) did not show that (1) including the gross receipts generated from the redemption of its marketable securities in the receipts factor was distortive and (2) including only the net receipts generated from the redemption of those marketable securities was reasonable. (3)

Kansas

For tax years beginning after 2007, S Sub HB 2434, Laws 2008, provides that in the case of sales of business assets, other than sales of tangible personal property sold in the ordinary course of the taxpayer's trade or business, only the net gain from such sales shall be included in the sales factor.

Kentucky

For tax years beginning after 2007, HB 258, Laws 2008, provides that the sales factor includes the net gain from treasury function transactions involving liquid assets.

Ohio

The Ohio Supreme Court held that for the years at issue, taxpayers must use net proceeds on principal trades, rather than gross proceeds, in determining apportionment for the dealers in intangibles tax. (4)

Other Apportionment Developments

California

The SBE held that the FTB's special trucking industry "interstate ratio" apportionment formula applied to all members of a taxpayer's combined reporting group, rather than just the specific "trucking company" entities within the group. (5) The taxpayer unsuccessfully argued that the state's general apportionment rules should apply to the "non-trucking company" members of the group.

Colorado

For tax years beginning after 2008, HB 1380, Laws 2008: (1) replaces the two- and three-factor apportionment options with a single sales factor formula that includes a throwback rule for sales and leases of tangible personal property and certain patents and copyright royalties; and (2) sources mutual fund services based on the domicile of the shareholders.

Delaware

The U.S. Supreme Court has denied review of a Delaware Supreme Court's ruling affirming Delaware's imposition of a bank franchise tax on 100% of a Delaware-chartered federal bank's income even though most of its employees (including senior management) worked in New York. (6)

In another development, for tax years beginning after 2008, SB 213, Laws 2008, permits asset management corporations to apportion their income based on a single ratio of Delaware-sourced gross receipts from asset management services to total gross receipts from asset management services based on the domicile of the consumer. Subsidiaries of certain banking organizations and trusts are prohibited from sourcing their income under this method.

Illinois

SB 783, Laws 2008, repeals the proportional benefits test and instead sources income from the sales of services to the place where the services are received. This legislation also adds a completely new code of provisions to the sales factor section for taxpayers that provide telecommunication services; requires that receipts from certain intangible property items are sourced to Illinois if a greater proportion of the income-producing activity of the taxpayer is performed in Illinois than in any other state, based on performance costs; provides that a dealer in intangible property sources receipts from intangible property (e.g., interest and net gains) to the customer's residence or commercial domicile, if the taxpayer has actual knowledge of those matters (otherwise, the sourcing of these receipts is to the customer's billing address); and revises some of the PA 95-0233 changes in the way that the apportionment fraction is computed for financial organizations beginning in 2008.

Maine

Maine Revenue Services adopted amended rules 18-125 ME Code R. 810 and 801 to reflect the law (Ch. 240 (LD 499), Laws 2007), which for tax years beginning after 2006 applies single sales factor apportionment and market sourcing for sales of other than tangible personal property to calculate the corporate income tax.

Massachusetts

The Department of Revenue (DOR) amended regulation 830 MA Code Regs. 63.38.7, which deals with apportionment for mutual fund services, to address the question of how a corporation computes the apportionment percentage for its non-income measure when the corporation has non-mutual fund income and derives a loss from either or both of its mutual fund and non-mutual fund businesses.

In another development, the Massachusetts Appellate Tax Board held that a travel company that created and marketed vacation travel packages to primarily foreign destinations must source all of its receipts to Massachusetts for sales factor purposes under an "operational approach" for examining the income-producing activity. (7)

Michigan

HB 5151, Laws 2008, which is effective retroactively to tax years beginning after October 31, 2005, provides that receipts derived by a mortgage company (that does not meet the definition of a financial organization) from the origination or sale of a loan secured by residential real property are apportioned in the same manner as for financial organizations.

New Jersey

Denying the taxpayers' motions for summary judgment, the New Jersey Tax Court held that while the state's throw-out rule may operate unconstitutionally in some applications, the rule is still facially constitutional. (8) However, in another development, A-2722, Laws 2008, repeals the throw-out rule and the regular place of business requirement effective for privilege periods beginning after June 30, 2010.

New York

An administrative law judge (ALJ) held that for Article 32 bank franchise tax purposes, the taxpayer properly allocated receipts from end-of-lease sales of equipment (which had previously been subject to a lease) to the location of the leased property. (9)

In a decision involving the application of Finnigan (10) in a combined return, the New York State Court of Appeals affirmed the appellate court's decision that for Article 9-A purposes, sales by a nontaxpayer member of a combined reporting group must be included in the numerator of the receipts factor of the business allocation percentage (the Finnigan rule). In doing so, the court affirmed a narrow interpretation of P.L. 86-272 and agreed that including the nontaxpayer's receipts in the apportionment formula was not an indirect method of taxing the nontaxpayer but merely a means of measuring the New York source income of the taxpayer members of the combined group. (11)

Oregon

The DOR adopted OAR 150-314.665(4) to provide that for tax years beginning after 2007, costs incurred on behalf of a taxpayer by a third party are included in its calculation of direct costs when determining the costs of performance in sourcing certain income for state corporate income tax apportionment purposes.

Tennessee

A telephone directory publisher successfully showed that the DOR's use of an alternative apportionment method to more fairly represent the extent of the publisher's business activities conducted in Tennessee was not warranted and that the publisher's use of the standard costs of performance method to source most of its advertising income outside Tennessee was appropriate and consistent with the applicable state statutes and regulations. (12) The DOR had unsuccessfully argued that given the highly unusual relationship between the publisher and its affiliated corporations in Tennessee, the publisher's sourcing of income should be determined based on the activities of these independent contractors.

Utah

Substitute SB 136, Laws 2008, provides for market sourcing for services for tax years beginning after 2008.

Unitary Groups/Filing Methods

California

In Chief Counsel Ruling No. 2007-4 (1/3/08), the FTB explains that certain distributions paid up the corporate chain from lower-tier subsidiaries in a unitary group to the ultimate parent constitute dividends that could be eliminated. In addition, the proper earnings and profits (E&P) ordering rule for the dividend payments generally follows the federal treatment, where dividends are deemed to be paid out of current E&P first, then layered back on a last-in, first-out basis.

In another development, effective for tax years beginning after 2007, AB 3078, Laws 2008, clarifies existing law related to dividend elimination on a corporate combined unitary group return.

Illinois

The DOR adopted amended rules 86 IL Admin. Code [section][section] 100.3380 and 100.9700 to allow for potential partnership inclusion in a unitary business group when exclusion would result in distortion in computing the unitary business group's income. In such cases, intercompany transactions would be eliminated for purposes of computing the unitary business group's apportionment factors but not for purposes of computing the factors of the partnership itself or the income of the nonunitary partners.

Kentucky

A Kentucky circuit court reversed the Board of Tax Appeals ruling to hold that a prior state corporate income tax consolidated return filing election (which was in effect for tax years and elections made before 2005) was limited to nexus-only entities that had property or payroll in Kentucky. (13)

Maine

The Maine Supreme Judicial Court vacated an earlier superior court decision to hold that a media company's cable, broadcast news, and newspaper publications constituted a single unitary business. Therefore, Maine could legitimately tax the media company on an apportioned share of the income earned from the sale of its out-of-state cable television division. (14)

Massachusetts

H 4904, Laws 2008, requires unitary combined reporting for tax years beginning after 2008.

New Hampshire 

HB 351, Laws 2008, clarifies that for purposes of defining the water's edge combined group, the definition of "overseas business organization" includes all foreign incorporated business organizations and all 80/20 business organizations.

New York

Among other provisions, A9807-C/ $6807-C, Laws 2008, provides for mandatory combined reporting between captive regulated investment companies (RICs) or real estate investment trusts (REITs) and either their controlling shareholder or their closest controlling shareholder that is a New York taxpayer or is required to be included in a combined return with a New York taxpayer. Qualified REIT subsidiaries are included in the combined report with the REIT. The dividends-paid deduction for dividends paid to the majority shareholder is disallowed in the combined return, except for small banks.

An ALJ decision and a Tax Appeals Tribunal decision forced combinations of companies that were found to lack business purposes or economic substance. In Kellwood, (15) an ALJ ruled that two subsidiaries used to operate as an accounts receivable factoring company and a management company (performing payroll, accounts payable, and accounts receivable functions) were required to file a combined return with their parent. Distortion was presumed because the subsidiaries engaged in substantial intercorporate transactions with the parent, and the parent failed to show that the transactions involving the subsidiaries had sufficient business purpose and economic substance to rebut the presumption. The ALJ found that the parent designed the factoring and centralized management arrangements solely to increase tax benefits. Underpayment penalties were imposed because the parent had not established reasonable cause and good faith for its failure to properly remit tax.

In Talbots, (16) the Tax Appeals Tribunal affirmed that Talbots had to include its wholly owned trademark subsidiary in its Article 9-A state franchise tax combined report because the subsidiary did not have sufficient economic substance or business purpose and Talbots formed the subsidiary strictly for state tax avoidance purposes. Under the stated facts, documentation supporting the creation of the trademark subsidiary showed no reason for its formation and operation other than state tax avoidance. The subsidiary lacked full-time employees and did not appear to engage in any meaningful trademark management/quality control responsibilities or activities. The tribunal also explained that whether or not the retailer established that the intercompany royalties paid were made at arm's length was moot due to the trademark subsidiary's lack of economic substance and business purpose.

New York City 

The New York City Tax Appeals Tribunal reversed an ALJ decision and held that a post-merger group of holding companies could file on a combined basis for corporate income tax purposes with related operating printing companies because there was functional integration between the operating companies and the holding companies, and the merger of some of the companies was essential to the continued economic viability of the operating companies. (17) The tribunal further explained that because the holding company structure was dictated by the third-party lender of the funds that were required to accomplish the merger, and the holding companies' activities were carried out by the operating companies' management, there was functional integration between the two groups.

Utah

HB 359 Third Substitute, Laws 2008, provides that the unitary group includes a captive REIT and permits a subtraction for the dividends received from a captive REIT included in the unitary return.

Vermont

The Vermont Supreme Court affirmed that a bank's three subsidiary holding companies, which held investments and loan participations, were empty shells not engaged in substantial independent business activity beyond the achievement of tax avoidance. (18) Accordingly, they were disregarded under the economic substance doctrine, and the parent owed additional bank franchise taxes, interest, and penalties.

West Virginia 

In 2007, West Virginia adopted unitary reporting previsions effective for tax years beginning after 2008. (19) As originally enacted, these provisions required taxpayers to use worldwide reporting, unless they made a water's edge election. SB 680, Laws 2008, changes this default provision, thus mandating water's edge reporting absent an election to file on a worldwide basis, and provides the tax commissioner with the authority to mandate worldwide reporting if a water's edge filing involves a substantial objective of avoiding state income tax.

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Administration

Arizona

HB 2692, Laws 2008, allows taxpayers to request information rulings from the DOR anonymously through their representative.

California

SBX1 28, Laws 2008, establishes a new 20% corporate penalty on an underpayment of tax in excess of $1 million, in addition to all other potentially applicable penalties. The penalty applies to open tax years beginning after 2002. Taxpayers may eliminate or reduce the penalty for any tax year beginning before 2008 by filing an amended return and paying the applicable tax on or before May 31, 2009. The new law also accelerates estimated tax by increasing the percentages to be paid for the first two installments.

In another development, the FTB announced that large and midsize businesses will be required to file a California Schedule M-3 for tax years beginning after 2008.

Colorado

HB 1408, which the governor vetoed, would have adopted the Multistate Tax Commission's model definition of captive REITs, closed certain captive REIT loopholes, and required disclosure of reportable and listed transactions with significant penalties for noncompliance.

Connecticut

HB 7601 and SB 1200, Laws 2008, authorize an amnesty program from May 1 through June 25, 2009. The program will cover most taxes administered by the department and will apply to any taxable period ending on or before November 30, 2008. (20)

Florida

HB 5065, Laws 2008, provides that effective January 1, 2009, the due dates for declarations of estimated tax and payments of estimated tax will be one day earlier than previously required.

Idaho

In May 2008, a long-term Idaho auditor filed a whistleblower report stating that when dealing with multistate taxpayers, the Idaho State Tax Commission (STC) settles for a fraction of the audit assessments to the detriment of the state. Subsequent review by an independent accountant found that the STC was not violating any laws or rules in its compromise and closing process for settling disputed out-of-state corporate tax obligations. However, the accountant determined that the STC's method for deciding whether a dispute qualified for the settlement process was ambiguous and undefined, "contributing to a perception that it was acting arbitrarily and without justification."

In response to the review, the governor directed the STC to clarify its process for handling disputes over out-of-state corporate tax collections and to provide legislators with the information they need to evaluate the process. The STC has since issued Temporary Rule 35.02.01.500, indicating that the STC may settle the tax liability/penalties of a case if there is: (1) a disputed liability; (2) doubt as to collectibility; (3) economic hardship of the taxpayer; and/or (4) promotion of effective tax administration.

Illinois

SB 783, Laws 2008, reduced the DOR's flexibility to rescind all or any portion of a penalty imposed on taxpayers and material advisers who fail to properly disclose reportable transactions and updated Illinois's material adviser disclosure and list maintenance obligations to conform with the Code and Treasury regulations.

Kentucky

A U.S. District Court held that a group of unitary corporations was not barred from potential federal relief enjoining the enforcement of an invalid state law restricting payment of certain corporate income tax unitary refund claims for tax years ending before December 31, 1995. (21) The court explained that neither the Eleventh Amendment, the Tax Injunction Act, nor federal principles of comity barred federal jurisdiction for relief against state officers who administered the law and processed the refund claims.

Louisiana

SB 288, signed into law as Act 857, provides that the tax commission shall be reimbursed for direct costs associated with audits or examinations of up to 10% of the additional tax, penalty, and interest collected.

Maryland

SB 444/HB 664, Laws 2008, substantially revised the information reporting requirements included in SB 2, Laws 2007, by eliminating the criminal penalties for failure to comply with the law and replacing the prior reporting provisions with a requirement to file a pro forma water's edge combined report, which subsequently was due by December 1, 2008.

Massachusetts

In TIR 08-4, the DOR provided guidance on the lookback period for nonfiling financials and others that have in-state lending/loan activity or that own or use intangible property in the state and file under the state's voluntary disclosure program. For such taxpayers, the DOR generally would apply a five-year lookback period if the taxpayer identified itself to the DOR as seeking to apply the terms of this TIR by September 30, 2008 (subsequently extended to November 28), and filed its returns and made full payment of the tax due and applicable interest and penalties by December 31, 2008. For taxpayers that did not comply, the TIR states that the DOR will apply a lookback period appropriate to the circumstances and will not be bound by the general three- or seven-year lookback periods that were announced in TIR 03-17.

In another development, H 5143, Laws 2009, provides a two-month amnesty program expiring before July 2009 under which penalties, but not interest, may be waived.

Michigan

In Revenue Administrative Bulletin (RAB) No. 2008-8 (12/2/08), the Department of Treasury explains the period for which an audit suspends the running of the state statute of limitation. An audit begins on the audit commencement date specified in the audit confirmation letter and is completed on the date of the final audit determination letter. Assuming that the taxpayer does not seek review via an informal conference or appeal to the Michigan Tax Tribunal or Michigan Court of Claims, the statute of limitation will expire at the conclusion of one year after the date of the final audit determination letter plus any remaining balance from the four-year limitation period that was initially suspended by audit.

Mississippi

SB 2562, Laws 2008, authorizes the tax commissioner to require material advisers and taxpayers required to notify the IRS of reportable transactions to also notify the Mississippi State Tax Commission of such transactions. The commissioner also may require material advisers required to keep lists of reportable transactions for IRS purposes to do likewise for State Tax Commission purposes.

New York

Among other provisions, A9807-C/ $6807-C, Laws 2008, extended the tax shelter provisions until July 1,2011, and established a new voluntary disclosure and compliance program that utilizes formal compliance agreements under which eligible participants are barred from criminal prosecution and the imposition of late payment and late filing penalties as related to their disclosed underreported taxes.

Oregon

Responding to S.B. 39, Laws 2007, which had imposed an obligation on taxpayers to disclose their participation in reportable transactions to the extent that the DOR adopted applicable rules to implement such an obligation, the DOR issued OAR 150-314.308, a new rule that describes the reporting requirements for taxpayers participating in listed transactions for tax years beginning after 2006.

Flowthrough Entities

California

The FTB informed certain limited liability companies (LLCs) that had filed LLC fee refund claims that because the decision in Northwest Energetic Services (22) on the LLC fee is now final, action can be taken on claims for LLCs that have the same facts as the LLC involved in that case (i.e., LLCs that conducted no activities in California). (23) Claimants with facts that are similar to those involved in Northwest Energetic Services must now provide the specified additional information to the FFB.

In other LLC fee developments, revised FTB Publication No. 3556, Limited Liability Filing Information (July 2008), explains that effective January 1, 2007, LLCs must calculate their annual fee on an apportioned basis based on "total income from all sources derived or attributable" to California. LLCs calculate this amount under the state's sales factor sourcing rules; provided examples explain their application. In addition, a California Court of Appeal held that the state's unapportioned annual fee on LLCs registered or doing business in California violated the U.S. Constitution's fair apportionment standards and limited the taxpayer's refund to the portion that exceeded "the amount it would have been assessed, without violating the Commerce Clause, using a method of fair apportionment." (24)

Georgia

HB 1151, Laws 2008, requires nonresident S corporation shareholders to execute consent agreements to pay Georgia income tax on their portion of the corporate income in the year in which the S corporation is first required to file a Georgia income tax return. For S corporations in existence before 2008, the agreement must be filed for each shareholder in the first Georgia tax return filed for the year beginning after 2007. An agreement must also be filed in any subsequent year for any additional nonresident who becomes a shareholder of the S corporation in that year.

Idaho

The STC has issued Regulation [section][section] 35.01.01.285 and 35.01.01.286, effective April 2, 2008, explaining that an S corporation that is transacting business in Idaho or is authorized to transact business in Idaho is subject to the state income/ franchise tax based on the total of the net recognized built-in gains and the excess net passive income of the S corporation attributable to Idaho for the tax year.

Illinois

SB 783, Laws 2008, provides a nonresident withholding exemption for investment partnerships.

In another development regarding investment partnerships, the DOR adopted amended 86 IL Admin. Code [section] 100.3500 and new 86 IL Admin. Code [section] 100.9730 providing guidance on the definition of investment partnership and the apportionment of income received by a partner through an investment partnership.

As previously noted in the "Filing Methods" section above, effective June 30, 2008, the DOR issued amended rules allowing for potential partnership inclusion in a unitary business group when exclusion would result in distortion of the unitary business group's income computation.

Indiana

The Indiana Supreme Court denied review of an Indiana Tax Court ruling, which held that income received by a Kentucky-domiciled S corporation from its minority membership interest in an Indiana LLC that operated a riverboat gambling casino/hotel resort within Indiana was not considered adjusted gross income derived from sources within Indiana because the S corporation was not commercially domiciled in Indiana. (25)

Kentucky

The March 2008 issue of the Kentucky Tax Alert discusses the limited liability entity (LLE) tax, income tax withholding, and composite return requirements for nonresident flowthrough entity owners.

The Alert reminds taxpayers that for tax years beginning after 2007, the LLE tax is imposed on every corporation and limited liability passthrough entity, including S corporations, partnerships, and LLCs.

Massachusetts

Among other provisions, effective for tax years beginning after 2008, H 4904, Laws 2008, adopts business entity classification rules that broadly conform to the federal check-the-box rules requiring companies to be classified as the same type of legal entity for state and federal income tax purposes. Under prior law, Massachusetts did not conform to the federal check-the-box rules relative to entity classification for entities other than LLCs. The DOR has since issued new emergency rule 830 MA Code Regs. 63.30.3 implementing this law change. The rule addresses the statutory changes and the effect they will have on an entity's status and return requirements, both in the transitional year and future years. The rule also explains the tax consequences of the classification changes, which generally result in a deemed incorporation, reorganization, or liquidation depending on the circumstances.

In another development, H 4900, Laws 2008, effective July 1, 2008, clarifies that the DOR may require S corporations and entities treated as partnerships to withhold state income tax on the distributive shares of income attributable to shareholders or members.

Minnesota

The DOR explained that when a corporation and a partnership are engaged in a unitary business, the corporation must include its partnership income in its apportionable business income. (26) The corporation must also include its pro-rata share of the partnership's property, payroll, and sales/receipts located within and outside Minnesota in the corporation's property, payroll, and sales/receipts numerator and denominator. If the corporation and partnership are not engaged in a unitary business, the corporation must report its partnership income or loss as separately stated income or loss. In such cases, if the partnership conducts its business both within and outside Minnesota, the corporate partner's share of partnership income or loss is assigned to Minnesota based on the partnership's property, payroll, and sales/receipts apportionment factors.

Mississippi

SB 2562, Laws 2008, provides that corporations required to include the activity of a disregarded entity for federal income tax purposes are likewise required to do so in computing Mississippi income.

New York

$6807-C, Laws 2008, reinstates a filing fee of $25 on single-member LLCs that are disregarded entities for federal and state income tax purposes and amends the limited liability filing fee as applied to multimember LLCs and limited liability partnerships, changing the fee from a per-partner/member fee to a fee ranging from $25 to $4,500 based on New York source gross receipts. A similar filing fee applies to S corporations.

Tennessee

In Letter Ruling No. 08-14 (2/22/08), the DOR explains that entities that are disregarded for federal income tax purposes, except for LLCs whose single member is a corporation, will not necessarily be disregarded for Tennessee franchise and excise tax purposes. To be disregarded for Tennessee franchise and excise tax purposes, an entity must be a single-member LLC, disregarded for federal income tax purposes, and wholly owned by a corporation.

West Virginia

As previously noted in the "Filing Methods" section above, SB 680, Laws 2008, amends the definition of a unitary business to clarify that any business conducted by a partnership shall be treated as being conducted by its partners. The new law also repeals the provision that generally required corporate partners to apportion and allocate income generated by partnerships based on the partnership's apportionment factors. These changes are effective for tax years beginning after 2008.

Corporate Taxes and Tax Rates

Kansas

S Sub HB 2434, Laws 2008, reduces the corporate income tax rate over a three-year period from the current 7.35% to 7% for tax years after 2010.

Louisiana

S.B. 10, Laws 2008, accelerates by one year the phaseout of the corporate franchise tax on borrowed capital to tax year 2011 instead of the previously scheduled 2012 tax year.

Massachusetts

H 4904, Laws 2008, reduces the current 10.5% financial institution tax rate to 10% in 2010, 9.5% in 2011, and 9% in 2012 and reduces the current 9.5% corporate tax rate to 8.75% in 2010, 8.25% in 2011, and 8% in 2012. The new law also imposes the nonincome measure of the corporate excise tax on entities having activities within Massachusetts that are exempt from the income measure of the corporate excise tax because they fall under the protections afforded by P.L. 86-272.

New York

Among other provisions, A9807-C/ $6807-C, Laws 2008, increased the cap on the corporate franchise tax computed based on allocated capital from $1 million to $10 million for tax years 2008-2010 for taxpayers other than manufacturers and reduced the tax rate from 0.178% to 0.15%.

West Virginia

Among Other provisions, SB 680, Laws 2008, gradually reduces the corporation income tax to 6.5% in 2014, as long as certain budget threshold requirements are satisfied, and phases out the franchise tax until it is eliminated after 2014.

HB 4421, Laws 2008, repealed the corporate license tax effective July 1, 2008.

Miscellaneous California

AB 1452, Laws 2008, generally limits the amount of a taxpayer's liability that may be offset by tax credits to 50% for tax years beginning after 2007 and before 2010. AB 1452 and SB 28, Laws 2008, allow the irrevocable assignment of tax credits to combined reporting group members.

This article is written in general terms and is not intended to be a substitute for specific advice regarding tax, legal, accounting, investment planning, or other matters. While all reasonable care has been taken in the preparation of this article, Deloitte accepts no responsibility for any errors it may contain, whether caused by negligence or otherwise, or for any losses, however caused, sustained by any person or entity that relies on it.

Editor Notes

Karen Boucher is a partner with Deloitte Tax LLP in Milwaukee, WI, and a former member of the AICPA's State & Local Tax Technical Resource Panel. Shona Ponda is a senior manager with Deloitte Tax LLP in Atlanta, GA. Both are members of Deloitte Tax LLP's Washington National Multistate Tax practice. For more information about this article, contact Ms. Boucher at [e-mail].

By: Karen J. Boucher, CPA Shona Ponda, J.D.

(1) Microsoft Corp. v. California Franchise Tax Bd., 39 Cal. 4th 750 (Cal. 2006).

(2) General Motors Corp. v. California Franchise Tax Bd., 39 Cal. 4th 773 (Cal. 2006).

(3) Appeal of Home Depot U.S.A., Inc., Cal. State Bd. of Equalization, Case No. 298683 (12/16/08).

(4) UBS Financial Servs., Inc. v. Ohio Tax Comm'r, 893 N.E.2d 811 (Ohio 2008).

(5) Appeal of Swift Transp. Co., Cal. State Bd. of Equalization, Case No. 266318 (2/4/08). On December 19, 2008, the SBE granted the taxpayer's motion for a rehearing in this case.

(6) Lehman Bros. Bank, FSB v. State Bank Comm'r, 937 A.2d 95 (Del. 2007), cert. denied, S. Ct. Dkt. No. 07-1010 (U.S. 4/28/08).

(7) The Interface Group v. Commissioner of Rev., Nos. C266670-76, C266677-79, and C266680 (Mass. App. Tax Bd. 10/17/08).

(8) Pfizer, Inc. v. Director, Div. of Tax'n, Nos. 000055-2006, 008807-2006, 008806-2006, and 000066-2007 (N.J. Tax Ct. 5/29/08). The New Jersey Supreme Court has since granted the taxpayer's motion for leave to appeal, and the matter has been summarily remanded to the New Jersey Superior Court, Appellate Division, to consider the appeal on the merits. Pfizer, Inc. v. Director, Div. of Tax'n, 960 A.2d 388 (N.J. 2008).

(9) In re BTMU Leasing & Fin., Inc., DTA No. 821525 (N.Y. Div. of Tax App., ALJ Div. 11/26/08).

(10) Appeal of Finnigan Corp., 88-SBE-022 (8/25/88).

(11) In re Disney Enters., Inc., 888 N.E.2d 1029 (N.Y. 2008).

(12) BellSouth Advertising & Pub. Corp. v. Commissioner of Rev., No. 04-2232-IV (Tenn. Ch. Ct. 7/31/08).

(13) AT&T Corp. v. Department of Rev. of Ky., No. 08-CI-01272 (Ky. Cir. Ct. 9/9/08), reversing AT&T Corp. v. Department of Rev. of Ky., No. K01-R-18 (Ky. Bd. of Tax App. 1/4/08).

(14) Gannett Co. v. State Tax Assessor, 959 A.2d 741 (Me. 11/18/08).

(15) In re Kellwood Co., DTA No. 820915 (N.Y. Div. of Tax App., ALJ Div. 3/27/08).

(16) The Talbots, Inc., DTA No. 820168 (N.Y. Div. of Tax App., Tax App. Trib. 9/8/08).

(17) In re American Banknote Corp., TAT (E) 03-31 (GC), TAT (E) 03-32 (GC), and TAT (E) 03-33 (GC) (N.Y.C. Tax App. Trib. 11/14/08).

(18) TD Banknorth, N.A. v. Dep't of Taxes, No. 07-127 (Vt. 9/19/08).

(19) SB 749, Laws 2007.

(20) Amnesty guidance issued by the DOR can be found at www.ct.gov/drs/cwp/ view.asp?Q=430130&A=1436.

(21) Johnson Controls, Inc. v. Kentucky, No. 3:07-CV-65-KKC (E.D. Ky. 2/29/08).

(22) Northwest Energetic Servs., LLC v. California Franchise Tax Bd., 71 Cal. Rptr. 3d. 642 (Cal. Ct. App. 2008), review denied, Cal. Sup. Ct. No. $162627 (Cal. 6/11/08).

(23) CA FTB Notice 2008-2 (4/14/08).

(24) Ventas Finance I, LLC v. California Franchise Tax Bd., 165 Cal. App. 4th 1207 (Cal. Ct. App. 2008), review denied, Cal. Sup. Ct. No. $166870 (Cal. 11/12/08).

(25) Riverboat Dev.. Inc. v. Department of Rev., 881 N.E.2d 107 (Ind. Tax Ct. 2/22/08), review denied, 2008 Ind. LEXIS 791 (Ind. 8/28/08).

(26) MN DOR Rev. Notice 08-03 (2/19/08).