This two-part article discusses a plethora of recent state and Multistate Tax Commission pronouncements issued in the income tax area, and state and Federal pronouncements in the sales and use tax arena. In Part I, published in April, the income tax discussion covered nexus, apportionment, and trends in business and nonbusiness income; Part II, below, examines other income tax developments, as well as sales and use tax nexus issues and other developments.
Income Tax--Other Developments
An administrative law judge (ALJ) determined that the Department of Revenue properly apportioned a limited partnership's long-term debt to the taxpayer, a general partner, in accordance with the taxpayer's ownership interest in the partnership.(1)
The California State Board of Equalization (SBE) ruled that an automobile leasing company is really engaged in conditional sales and thus cannot deduct depreciation on the vehicles.(2)
A new regulation specifically denies taxpayers the ability to elect retroactively to amortize intangibles otherwise subject to Sec. 197.(3)
Minnesota income tax was not due on income a corporation assigned under state and Federal provisions allowing a profitable corporation to assign income to subsidiaries jointly owned by the corporation and an Alaska Native Corporation (ANC). The objective was to offset the corporation's income by the "purchase" of the ANC's net operating losses (NOLs).
The Commissioner of Revenue unsuccessfully argued that, despite the clear language of Minn. Stat. Section 290.01, subd. 20, the legislature did not intend to adopt Section 1804 (e) (4) of the Tax Reform Act of 1986 as an amendment to the state definition of corporate gross income, because that phrase was defined independently of Federal law in 1985. The Commissioner also argued that the legislature could not have intended to adopt a Federal law that provides assistance to ANCs, which have no connection to Minnesota.(4)
* New Jersey
The New Jersey Supreme Court upheld a real estate investment trust's (REIT's) dividends-paid deduction in computing its Federal taxable income. N.J.S.A. 54:10A-4(k) provides that the starting point for computing New Jersey taxable income is Federal taxable income before the NOL deduction and special deductions. According to Sec. 857 (b) (2) (B), a REIT may deduct dividends paid to shareholders when computing its Federal taxable income; in the court's view, that deduction is not a special deduction described in Secs. 241-249, and so was allowable.(5)
* New Mexico
The Court of Appeals upheld a credit for employer expenditures for employee child care expenses under Sec. 129.(6)
* New York
An ALJ ruled that a nonrefundable commitment fee need not be traced to a specific asset to be considered directly attributable to business capital.(7)
The U.S. Supreme Court affirmed the Oklahoma Supreme Court's denial of declaratory or injunctive relief (under 42 U.S.C. Section 1983) to out-of-state motor carriers operating in Oklahoma who successfully challenged that state's third-structure taxes. The Court held the taxes to be violative of the Commerce Clause because adequate remedies existed under state law; Section 1983 provides no basis for courts to issue injunctive or declaratory relief in state tax cases when there is an adequate remedy at law. Construing Section 1983 in conjunction with the long-held principle of noninterference with state taxation, the Court concluded that Section 1983 does not call for courts (whether Federal or state) to disrupt state tax administration by issuing injunctive or declaratory relief when state law furnishes an adequate legal remedy; since no relief could be awarded under Section 1983, attorney's fees could not be awarded under 42 U.S.C. Section 1988.(8)
The Tax Appeals Commission denied a taxpayer's petition for redetermination of the disallowance of deductions for dividends received from two subsidiaries with which it merged mid-year.(9)
Sales and Use Tax-Nexus
The Board of Tax Appeals (BTA) held that a business whose sole contacts with Arizona consisted of a one-day salesperson visit per year and the short-term lease of two personal computers did not have sufficient nexus to be subject to the transaction privilege (sales) tax.(10)
A court of appeal ruled that the taxpayer's participation in a three-day seminar in Florida did not create nexus for Florida use tax purposes. The taxpayer limited its activities in Florida to displaying and selling products at the seminar. The court reasoned that the taxpayer's activities at the seminar neither created a customer base in Florida nor exploited its consumer market. The court certified to the Florida Supreme Court the question of whether substantial nexus was created.(11)
The BTA ruled that Scholastic Book Clubs, Inc.'s use of Kansas school teachers to distribute flyers, collect and remit order forms and money, and distribute books on its behalf triggered use tax collection obligations. To encourage the teachers' participation, the taxpayer awarded them bonus points redeemable for education-related merchandise. The BTA successfully argued that the teachers were the taxpayer's apparent agents and created nexus between the taxpayer and the state.(12)
The Court of Claims upheld a taxpayer's claim of a bad debt deduction related to uncollected sales made in Michigan. Michigan allows taxpayers to take a bad debt deduction against gross sales if the sale was subject to Michigan sales tax; there is no corresponding deduction for sales subject to use tax. Michigan determines whether a given sale is subject to sales tax or use tax based on where the product is shipped from and the existence of sufficient local activity. The court held the taxpayer's retail sales activity in Michigan met the sufficient local activity test even though the products were shipped from out of state.(13)
* New York
The Court of Appeals replaced the "substantial physical presence" test with the "more than the slightest physical presence" standard. In a single opinion consolidating two cases, Orvis Co. Inc. v. Tax Appeals Tribunal(14) and Vermont Information Processing, Inc. v. Tax Appeals Tribunal(15) (VIP), the court held that Vermont vendors were required to collect use tax on their sales to New York customers because their New York activities exceeded the slightest presence standard necessary to satisfy the substantial nexus prong of Complete Auto Transit,(16) as modified by National Geographic.(17)
Orvis, which sells camping, fishing and hunting gear to retailers in New York, sent employees to New York 12 times over a three-year period to visit customers. The court concluded that these visits were generally responsible for the success of Orvis's business and exceeded the slightest presence necessary to impose a use tax collection obligation. (The case was remanded for reconsideration of other issues not reached on appeal.)
In VIP, a Vermont computer software seller with no other contacts in New York sent personnel there when customers experienced software problems. Approximately 41 visits were made over a three-year audit period in which there were 154 sales transactions. The court held that the volume of such activity demonstrated more than slight physical presence.
Both holdings concluded that Quill(18) did not create a substantial physical presence standard. The Court of Appeals held that the standard established by precedent (and upheld in Quill) required bright-line physical presence (Complete Auto Transit), which must exceed the slightest presence (National Geographic). The court further noted that in Jefferson Lines,(19) which was decided after Quill, the Supreme Court made no mention of a substantial physical presence standard. The court also stated that a facts-and-circumstances-based substantial physical presence test is unacceptable, because it would require weighing of various factors to determine substantiality on a case-by-case basis.
A New York-based mail-order corporation that sold clothes and accessories by direct mail to Ohio residents was not constitutionally required to collect use tax on those sales, even though a sister corporation operated stores in Ohio, distributed catalogs for the mail-order company and accepted merchandise returns. The presence of an affiliated corporation did not create nexus under Quill. The 200 catalogs distributed by the retail store and its acceptance of returns did not rise to the level of substantial nexus required under the Commerce Clause.(20)
Federal Proposed Legislation
* Consumer and Main Street Protection Act of 1995
Sens. Dale Bumpers (D-Ark.) and Bob Graham (D-Fla.) reintroduced a bill requiring out-of-state mail-order businesses to collect state and local sales taxes. The Consumer and Main Street Protection Act of 1995 would allow states to require the collection of state and local sales taxes if the destination of the tangible personal property is in the state and the state collects and administers all local taxes. Collection is required if the seller has gross receipts from sales of such tangible personal property exceeding $3 million in the U.S. and $100,000 in the state during the one-calendar-year period ending on September 30 of the calendar year preceding the calendar year in which the taxable event occurs.
In its present form, the bill authorizes states to require mail-order companies to collect state and local sales taxes and would permit mail-order companies to collect a state's use tax using a blended rate. The blended rate attempts to achieve administrative simplicity and would be based on the average local rate of tax during the previous year. The effect of a blended rate, however, would be to impose in certain counties a higher use tax rate than the intrastate sales tax rate--a scenario declared unconstitutional in Associated Industries.(21) However, the bill makes collection of the tax elective; whether this difference is constitutionally significant is unclear. A blended or flat rate may be valid as long as no locality taxes out-of-state purchases more heavily than it does in-state purchases.
Sales and Use Tax--Recent Developments
A chancery court ruled that the sale of extended vehicle service contracts or extended warranties is not subject to the Arkansas gross receipts tax, because there is no assurance that taxable services will ever be performed under the service contracts and no tax is due unless such services are performed. Thus, the service contracts are in the nature of nontaxable insurance, rather than taxable repair services.(22)
Films purchased by a theater operator were tangible personal property subject to use tax. The exhibition of the films to the public was not considered sales for resale, because the customers paid a fee to view the films, not to acquire tangible property.(23)
An out-of-state retailer was required to pay use tax on catalogs mailed to Connecticut customers. The company did not dispute the fact that nexus was created by the presence in Connecticut of its two retail outlets; however, it did argue that it did not have nexus because it had no control over the catalogs in Connecticut. In the court's view, under postal regulations, the company had the right to recall the mailing, so that the taxpayer owned the catalogs until the customers received them.(24)
A non-profit aerospace research corporation created as a result of the National Aeronautic and Space Administration (NASA) Act of 1958 fulfilled its contract with NASA by purchasing computer hardware and software with U.S. government funds. The company was so closely allied with the Federal government that imposition of Connecticut sales tax would have violated the Supremacy Clause.(25)
A circuit court expanded the definition of "machinery" to include palletizers and shrink wrappers, because they contributed to the finished product (cans). It was immaterial that such machinery did not contribute to the production of the cans themselves.(26)
The Kansas Supreme Court upheld a taxpayer's claim for a manufacturing exemption for electricity used to blend, clean and dry grain before sale in the wholesale market. The court expanded the definition of the production of tangible personal property to include the activities performed by the taxpayer. The Department of Revenue had argued that the taxpayer's activities did not qualify for the manufacturing exemption because the processing of the grain did not create a new and distinct product; however, the court found that the taxpayer's activities resulted in a sufficiently new product with enhanced value and ruled the Department's definition of "manufacturing" to be too narrow.(27)
On rehearing, the Louisiana Supreme Court overturned its previous decision that a legislative suspension of certain state sales and use tax exemptions also applied to local sales and use tax exemptions. The court reasoned that the state legislature intended to suspend the state, but not the local, sales and use tax exemptions; further, the state's constitutional requirement, which mandates uniformity between state and local laws, did not apply to the suspension of sales tax exemptions.(28)
The Louisiana Supreme Court upheld the assessment of use tax on natural gas extracted from an interstate pipeline used to operate the pipeline's compressor stations. The taxpayer argued that the gas was consumed in interstate commerce, so that Louisiana could not assess use tax. The Department of Revenue argued that the gas, immediately before its use, came to rest and became part of the mass property of Louisiana. The court stressed that the taxpayer had established substantial nexus with the state due to its ownership of property and employment of workers there. Since the gas had left interstate commerce and the taxpayer had substantial nexus with the state, imposition of use tax was proper.(29)
The Supreme Judicial Court denied a taxpayer's claim for a sales tax manufacturing exemption on pollution control equipment. The court narrowly interpreted the state's statute to require the equipment to cause direct and immediate change to tangible personal property. Since the pollution control equipment did not meet this test, the taxpayer's claim for the exemption was denied.(30)
The tax court concluded that the conversion of purchased copier machines for leasing to coin-operated self-service copy machines did not trigger use tax as sales for resale. Customers of self-service copiers buy the right to use the copier to produce a photocopy, a license-to-use situation. For copiers licensed to use, tax is payable on the gross receipts from coin-operated sales because such sale is the final retail sale of the photocopies; thus, the purchase of the copiers was exempt.(31)
* New Mexico
The Court of Appeals ruled that a manufacturer properly accepted a Multistate Tax Commission Uniform Sales and Use Tax Certificate (MTC certificate), despite the fact that the retailer-purchaser used a New Mexico taxpayer identification number. The manufacturer sold products to an out-of-state retailer and shipped them to the retailer's New Mexico customers on its behalf. The court held that the retailer's registration for New Mexico's gross receipts tax did not automatically create nexus; further, a seller could accept an MTC certificate in good faith without making factual inquires or legal decisions regarding nexus.(32)
The Ohio Supreme Court ruled that a common carrier was liable for sales and use tax on products shipped to other states through a "cross-dock" located in Ohio. The taxpayer imported products into Ohio and unloaded, unwrapped, briefly inspected, and reloaded the products onto trucks for destinations outside the state, a process lasting approximately three to four hours. According to the court, the taxpayer exercised rights of ownership and control over the products that resulted in a taxable event.(33)
The U.S. Supreme Court found constitutional a sales tax imposed by Oklahoma on the sale of bus tickets by Jefferson Lines, Inc. Jefferson, a Minnesota bus company, operated routes throughout the midwest and sold bus tickets in Oklahoma for both intrastate and interstate travel. The Court held that the collection of unapportioned sales tax on the price of tickets purchased in Oklahoma did not violate the Commerce Clause by imposing an undue burden on interstate commerce. The Court distinguished Central Greyhound Lines, Inc. v. Mealey,(34) which held unconstitutional an unapportioned state tax on the gross receipts of a company that sold tickets for interstate bus travel. The Court noted that, unlike the gross receipts tax in Central Greyhound, the incidence of the sales tax is on the buyer of the services, who is no more subject to double taxation than would be a buyer of goods.(35)
* South Carolina
The South Carolina Supreme Court ruled that the state could not assess sales tax on leasing an inter-LATA (local access and transport areas) telecommunications system. The taxpayer owned LATAs that it leased to long-distance carriers. The court reasoned that the taxpayer provided a service to its customers rather than leasing property, sold its services to the long-distance carriers at "wholesale" prices and had no contact with or obligations to customers.(36)
The Court of Appeals upheld a taxpayer's sales and use tax exemption for quarrying and asphalt processing equipment. Tenn. Code Ann. Section 67-6-206(a) permits a sales and use tax exemption for purchased equipment if 50% or more of the resulting processed goods are for resale and consumption off the premises. The court rejected the Commissioner of Revenue's assertion that a taxpayer must sell more than 50% of the processed goods to third parties; rather, the court looked to where the taxpayer used the property. While the taxpayer did not sell 50% of its processed goods to third parties, it did use over 50% of the processed goods to fulfill paving contracts, qualifying the equipment for the sales and use tax exemption.(37)
Texas amended Admin. Rules 3.330 (relating to data processing services), 3.333 (relating to security services), 3.342 (relating to information services), 3.343 (relating to credit reporting services), 3.354 (relating to debt collection services), 3.355 (relating to insurance services), 3.356 (relating to real property service), and 3.357 (labor relating to nonresidential real property repair, remodeling, restoration, maintenance, new construction and residential property). These rules were amended to provide that a purchaser of services can overcome the presumption of taxability arising when both taxable services and nontaxable unrelated services are provided for a single charge and the taxable portion represents more than 5% of the charge. The presumption may be overcome by records of the service provider or the purchaser. This change in policy is retroactively effective Mar. 23, 1995.
The state has clarified the sales and use tax implications for certain sale-leaseback transactions. If a purchaser of tangible personal property pays applicable sales or use tax at the time of purchase and subsequently transfers title to a lessor in a sale-leaseback transaction, sales tax is not due on the lease payments if (1) the transaction is intended to be a form of financing for the property to the purchaser-lessee and (2) the purchaser-lessee is required by generally accepted accounting principles to capitalize the property for financial reporting purposes and account for the lease payments as payments made under a financing agreement.(38)
The Court of Appeals overturned the Tax Commission's regulations, which would have limited the sales tax exemption to equipment or machinery purchased for "new or expanding operations." The regulations disallowed purchases of new equipment that only increased plant production or capacity when compared to the old equipment and required expanded operations to be (1) at a new location in Utah or (2) substantially different from pre-expansion activities.(39)
A Virginia taxpayer in the business of selling computers, peripheral equipment, supplies and related service applications also provides parts price updates electronically via telephone lines and through magnetic tapes. The Commissioner ruled that the transfer of such information through magnetic tapes (but not via telephone) is taxable because conveying information through such means is a sale of tangible personal property.(40)
Effective July 1, 1995, businesses engaged in manufacturing activities will not be required to pay sales or use tax on machinery and equipment purchased for use directly in manufacturing operations. In the case of leased equipment, the exemption applies to rental payments due after June 30, 1995.(41)
Upholding the Wisconsin Tax Appeals Commission, a circuit court ruled that leases of uncustomized computer software from various vendors were not subject to Wisconsin sales or use tax. The essence of the transactions was the purchase of an intangible, not taxable leases of tangible personal property or enumerated taxable services.
The software was provided on magnetic tape or diskette and copied into the computer's memory. The copying process required a physical alteration and rearrangement of the memory unit at the molecular level. The programs could have been transmitted by means other than tape or diskette (e.g., over telephone lines). The cost of the tape or diskette was minimal and was not separately stated in the cost of the program.(42)
Editor's note: Mr. Ruez is a member of the AICPA Tax Division State and Local Taxation Committee.
(1) American Television & Communications Corp. v. State of Alabama Dep't of Rev., Dep't of Rev., Admin. Law Div., No. 95-258 (8/29/95).
(2) In the Matter of the Appeal of Alameda Bancorporation, Inc., Calif. SBE, No. 95-SBE-001 (3/9/95), aff'd on reh'g, 10/16/95.
(3) 103 KAR 15:090 (effective 4/7/95).
(4) Green Giant Co. v. Comm'r of Rev., Minn. Sup. Ct. No. C3-94-2030 (7/28/95).
(5) Corporate Property Investors v. Dir., Div. of Tax'n, N.J. Sup. Ct., App. Div., No. A-5993-93T3 (6/23/95).
(6) Intel Corp. v. Tax'n and Rev. Dep't, N.M. Ct. of Apps., No. 15,823 (6/30/95).
(7) In the Matter of the Petition of MacAndrews & Forbes Holdings, Inc., Div. of Tax Apps., ALJ Unit, No. 812227 (3/16/95).
(8) National Private Truck Council, Inc. v. Okla. Tax Comm'n, U.S. Sup. Ct., No. 94-688 (6/19/95).
(9) Colgate-Palmolive Co. v. Wisc. Dep't of Rev., Wisc. Tax Apps. Comm'n, No. 94-1-249 (7/26/95).
(10) Care Computer Systems, Inc. v. Ariz. Dep't of Rev., Ariz. Board of Tax Apps., Div. Two, No. 1049-93-S (4/4/95).
(11) Fla. Dep't of Rev. v. Share Int'l, Inc., Fla. Dist. Ct. of App., First Dist., No. 93-4093 (8/21/95).
(12) Matter of Scholastic Book Clubs, Inc., Kans. BTA, No. 93-16709-DT (8/7/95).
(13) World Book, Inc. v. Rev. Div., Dep't of Treasury, State of Mich., Mich. Ct., of Cls., No. 93-15132-CM (3/32/95).
(14) In the Matter of Orvis Co., Inc. v. Tax Apps. Trib. of the State of N.Y., N.Y. Ct. of Apps., No. 138 (6/15/95).
(15) In the Matter of Vermont Information Processing Inc. v. Tax Apps. Trib. of the State of N.Y., N.Y. Ct. of Apps., No. 139 (6/15/95).
(16) Complete Auto Transit v. Brady, 430 US 274 (1976).
(17) National Geographic Society v. California Bd. of Equalization, 430 US 551 (1977).
(18) Quill Corp. v. North Dakota, 504 US 298 (1992).
(19) Okla. Tax Comm'n v. Jefferson Lines, Inc., 115 Sup. Ct. 1331 (1995).
(20) SFA Folio Collections, Inc. v. Roger W. Tracy, Tax Comm'r of Ohio, 73 OS3d 119 (1995).
(21) Associated Industries of Missouri v. Lohman, 114 Sup. Ct. 1815 (1994).
(22) Staton v. Ark. Dep't of Fin. and Admin., Pulaski County Chancery Ct., No. 94-3966 (8/15/95).
(23) American Multi-Cinema, Inc. v. City of Westminster, Colo. Ct. of Apps., Div. II, No. 94CA0297 (7/13/95).
(24) Sharper Image Corp. v. Donald F. Miller, Comm'r of Rev. S'vces, Conn. Super. Ct., Tax Session, No. CV-94-0536540 (2/1/95).
(25) NERAC, Inc. v. James F. Meehan, Comm'r of Rev. S'vces, Conn. Super. Ct., Tax Session, No. 375219 (1/27/95).
(26) U.S. Can Co. v. The Ill. Dep't of Rev., Ill. Cir. Ct., Cook County, No. 92-CH-11568 (12/2/94).
(27) In the Matter of Collingwood Grain, Inc. v. Dep't of Rev., Kans. Sup. Ct., No. 71,465 (3/10/95).
(28) B.P. Oil Co. v. Plaquemines Parish Gov't, La. Sup. Ct., No. 93-CA-1109 (1/27/95).
(29) Columbia Gulf Transmission Co. v. Arnold A. Broussard, Sec'y of the Dep't of Rev. and Tax'n, La. Sup. Ct., No. 94-C-1650 (4/10/95).
(30) Comm'r of Rev. v. V.H. Blackington & Co., Inc., Mass. Sup. Jud'l Ct., Suffolk, Docket No. SJC-06760 (5/8/95).
(31) Copy Duplicating Products, Inc. v. Comm'r of Rev., Minn. Tax Ct., No. 6378 (7/10/95).
(32) Seimens Energy & Automation, Inc. v. N.M. Tax'n and Rev. Dep't, N.M. Ct. of Apps., No. 15,398 (5/1/95).
(33) Central Transport, Inc. v. Roger W. Tracy, Tax Comm'r of Ohio, 72 OS3d 296 (1995).
(34) Central Greyhound Lines, Inc. v. Mealey, 334 US 653 (1948).
(35) Okla. Tax Comm'n v. Jefferson Lines, Inc., note 85.
(36) PalmettoNet, Inc. v. The S.C. Tax Comm'n, S.C. Sup. Ct., No. 24217 (3/27/95).
(37) Rogers Group, Inc. v. Joe Huddleston, Comm'r of Rev. of State of Tenn., Tenn. Ct. of Apps., No. 01-A-01-9407-CH-00346 (1/6/95).
(38) S.B. 17, effective July 1, 1995.
(39) Newspaper Agency Corp. v. Utah State Tax Comm'n, 892 P2d 17 (1995).
(40) P.D. 95-68 (3/30/95).
(41) Ch. 3 (S.B. 5201), Laws 1995, 1st Sp. Sess.
(42) Wisc. Dep't of Rev. v. Manpower, Int'l, Inc., Wisc. Cir. Ct., No. 94CV2858 (6/15/95). This case has been appealed.
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|Title Annotation:||state and local taxation; part 2|
|Author:||Mathews, R. Kelly|
|Publication:||The Tax Adviser|
|Date:||May 1, 1996|
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