do you want "moral support" or "technical support"?

Tax advice.

State tax advice.

Questions. Answers. Direction. Clarity.

Each client has unique facts that when faced with complicated state tax law can cause misalignment between the desired conclusion and reality. Thus, in those moments of grey or uncertainty, when the client pushes back against the "technically correct" answer - what will be the guidance? What conclusion will you provide? How will you communicate that conclusion?

This is a common occurence. One in which caused me to say to a colleague the other day - "sometimes it feels like clients don't want technical support. They just want moral support."

"Moral support" meaning, clients just want you to find some legal authority that will allow them to do or reach their desired outcome. They don't really just want to know the "technically correct answer."

The "technically correct" answer is cut and dry. Leaves no wiggle room (usually). It's a stronger conclusion. Less risk of challenge or an audit assessment.

The "moral support" answer is not so cut and dry. It is like trying to thread the needle. Trying to stand on legal authority to go in a different direction - to reach the desired result. This path may be more risky, but it may also be supportable by legal authority. Meaning, this position is not unsupportable, it just has a lower level of support than a "technical correct" answer. For example, it may have a "realistic possible of success" (33% probability of being sustained) or only have a "reasonable basis" (20% to 30% probability of being sustained).

The next higher level of assurance would be "substantial authority." Internal Revenue Code Regs. Sec. 1.6662-4(d)(3)(i) explains when there is substantial authority in support of a tax position. The regulation provides in part:

There is substantial authority for the tax treatment of an item only if the weight of the authorities supporting the treatment is substantial in relation to the weight of authorities supporting contrary treatment. All authorities relevant to the tax treatment of an item, including the authorities contrary to the treatment, are taken into account in determining whether substantial authority exists. The weight of authorities is determined in light of the pertinent facts and circumstances in the manner prescribed by paragraph (d)(3)(ii) of this section. There may be substantial authority for more than one position with respect to the same item. Because the substantial authority standard is an objective standard, the taxpayer's belief that there is substantial authority for the tax treatment of an item is not relevant in determining whether there is substantial authority for that treatment.

Then we get to the desired level of "more likely than not" (generally viewed as more than 50% probability of position being sustained).

More likely than not means evidence reasonably tending to support the conclusion. Evidence that is competent, relevant, and material, and which to a rational and impartial mind naturally leads, or involuntarily leads to conclusion for which there is valid, just and reasonable substantiation.

"Should" and "will" levels of assurance would be lovely, but again, that is in the more "cut and dry" fact patterns.

“Should” opinions generally provide a 70% to 75% probability of position being sustained. This opinion standard implies a reasonably high level of confidence that the position will be sustained and is significantly higher than the “more likely than not” standard but allows for a not insignificant risk of being wrong.

"Will" opinions generally provide a 90-95% probability of position being sustained.This opinion provides the highest level of comfort. But note that “a legal opinion is not an insurance policy.” A judge could still decide adversely on the matter, so the opinion should not be considered a guarantee of absolute certainty.

Consequently, when a client (or colleague) asks you a question, keep in mind that it is always a technical question. You are always providing answers which contain a level of assurance whether you specifically clarify what level of assurance you are providing. Make sure your client understands the "level" and the risk.

Most clients and colleagues are likely looking for "should" and "will" guidance at the start of the conversation, but if that answer is not giving them the desired outcome, they may start to move down the "assurance level ladder" to "substantial authority" or "realistic possibility of success."

The lower you get on the "ladder," the closer you are getting to providing "moral support" versus "technical support."

This is one time when you want to be as high up on the ladder as possible (even if you are afraid of heights).

My advice - don't get to the bottom of the ladder, and please don't fall off the ladder.

that was easy

Everyone is looking for the easy button. One click. The answer appears. AI is helping that perception or expectation increase.

Many projects I do around the house. Others expect it to be easy. It never is. At the end of the project I often say, "that was easy."

In the state tax world, clients may come to you with bad facts or facts that when you apply the law produces an unfavorable or unfair result. They already got a bad answer from the state. However, they want to know if there is another way. Another argument. Another position. A sliver of hope or option that you could possibly squeeze through to get to the other side and receive a favorable result.

That favorable result could possibly be obtained if you find someone within the department of revenue, the legal division, appeals, or taxpayer advocate office that has discretion and authority to reach a different conclusion when clearly, the facts and the law when technically applied, produce an unfavorable result.

When situations like the above arise, some clients understand what they are asking you to do and are willing to pay for you to "try." Other clients may not understand what they are asking and expect there to be an "easy button" or just call the state and see what happens. That is not how a "more favorable" result will be achieved.

Now, in some cases, I do have contacts within certain state Departments of Revenue (taxation) that do offer great assistance in reaching positive resolutions in a short timeframe. However, those cases don't generally include the combination of "bad facts" and law that contradicts. Often, those cases include good facts and good law, but the taxpayer simply misapplied the law to their facts.

If you are following.

"Good facts" are facts that if the taxpayer followed the law, they would have received a reasonable result.

"Bad facts" are facts that if the taxpayer follows the law, they will not get a positive or reasonable result. Thus, we plead for mercy or discretion by a state for a fair and reasonable exception to the law as 'it is written' based on the unfair result despite the taxpayer's bad facts or misinformed guidance or reliance, etc.

QUICK QUESTION

We have all approached someone at different times and said, "we have a quick question," when we don't really know the complexity of the issue or question we are asking. Thus, we hope and expect to get an "easy" or quick response.

Other times, we ask someone a question that we know is complex and has a narrow margin of victory, yet we still expect to get an "easy" or quick response. Hmmmm.........something is wrong here.

Substance v. Form (reasonable v. punitive)

The challenge.

We know what we did.

We know how any reasonable person would perceive what we did.

We know what we meant to do.

It should be understood that this is the conclusion and answer.

However, the technicality. The application of the law. A deadline. A procedure. A form. A description. An inadvertant explanation on a website or in sales and marketing material.

Despite the substance of a transaction, the form of the transaction may (or will likely) determine the outcome or conclusion reached by an auditor, adiministrative appeals or a court.

In the state and local tax world, we deal with these types of connundrums all the time. Either the facts aren't great or the law isn't great (when applied to the facts).

If you can't change the facts and you can't change the law, then it is up to building arguments and support for the conclusion you seek.

Big corporations and consulting firms may approach these types of issues one way.

Middle market and smaller businesses (and consulting firms) are often forced to approach these situations a different way. Lacking the dollars and/or the resources, companies are often forced to fight adversity with a skeleton crew and dig deep as quick as possible and as far as possible without breaking the bank or sometimes, pushing a legitimate position.

When a reasonable conclusion can't be reached and a conclusion seems overly punitive because "we have to follow the technicality" of the rules, that stings.

That's when we lean on appeals, a taxpayer advocate office, or some other discretionary tool (without going to court). This sometimes works and sometimes it doesn't.

I wish all businesses (who are trying to follow the rules) could get reasonable results, but that isn't always the case.

Sometimes the late filing of a document (by just a couple of days) can be costly (even when it shouldn't be).

Exceptions to rules should be made, sometimes.

It's like going to a store or restaurant or other place of business and asking for assistance when you know that you "technically" didn't follow the rules or maybe don't deserve it.

The employee at the desk can either be a stickler for the rules, or use their discretion to use "common sense" (or go the extra mile) and help the customer (providing excellent customer service) achieve a fair and reasonable result.

a problem is a terrible thing to waste

I gave a SALT (state and local tax) update at Frazier & Deeter Atlanta CPE day this week and spoke about sales tax problems (opportunities) that companies are facing. I entitled it, "A Problem is A Terrible Thing to Waste."

I deal with problems every day - work, clients, home, etc. But how do you look at problems? Are the problems really opportunities?

From a sales tax standpoint, problems (opportunities) are created by business changes and tax law changes (and the lack of uniformity among the states, and clarity among existing laws).

Sales tax can be more painful than income tax. How you ask? Because a company's obligation to collect can become their obligation to pay (out of their own pocket). Something that a company was supposed to collect from somone else will become their expense if they can't prove the customer already paid it or obtain some type of exemption certificate from the customer.

Economic nexus (Wayfair US Supreme Court Case in 2018) changed the sales tax world dramatically. Caused companies that were filing sales tax returns in 2 states to start filing in 30 states. Playing the "wait and see game" has truly come to an end.

In decisions in Texas, the Comproller asserts that a company licensing software to customers in Texas has a physical presence in Texas. The Comptroller contends that computer software programs are the equivalent of physical property in the state. Thus, the lease, license or rental of software means the seller owns property in the state that is being used by a customer.

Sales sourcing is a mess if you don't sell tangible property. Companies generally use the shipping address; however, when you sell services or digital goods, SaaS, etc. you don't have a "ship to" address. You have a "billing address." Unfortunately, companies who source sales according to the billing address are likely sourcing sales incorrectly. This could create a problem (opportunity). Sales of services, digitial goods and SaaS are generally sourced to where the service is received, or the digital goods and SaaS are used. Consequently, if a buyer has users in multiple states, the sale should be sourced to multiple states, not one.

When selling digital goods, services and/or SaaS, the question becomes "what is the customer actually buying"? What is the "true-object" or "primary purpose" of the transaction? The problem (opportunity) with these transactions is that they are usually bundled together. Thus, if one item is taxable, the whole transaction may be taxable. However, if you can prove that the true-object is the nontaxable item, then the whole transaction may be nontaxable. Tennessee has several rulings that reflect this analysis.

Is AI (artificial intelligence) taxable? No one is looking at this. No one is talking about this. This will sneak up on the states similar to when SaaS took over tangible sales of software. AI could be a nontaxable service, information service, data processing, SaaS, custom software, or something else. Chicago has said they are taxing ChatGPT.

Marketplace facilitators are facing an attack from Texas. Texas is asserting that everything is data processing (taxable). This includes the commission/revenue share or "marketplace provider commissions (MPC) or fees.

Procurement companies are still a great idea for sales tax deferral, cash flow benefits and paying sales tax (use tax) to the correct state, but accurate implementation is key. Transactions between entities must be legit and papered. There must be substance and actual transactions between the entities.

is the law changing or simply the interpretation of the law?

Interpretation of the law determines whether there is any retroactive changes to the law being made.

If retroactively changing the law, it may be unconstitutional.

If the interpretation is simply incorrect, then no change in the law is being suggested, the interpretation is only being corrected (changed).

However, then the interpretation could be considered to being changed retroactively.

Does it matter if the law is changed or the interpretation is changed?

The answer likely depends on who is making the change.

The issues:

• What is the law?

• What is the correct interpretation of the law?

• What is the basis of that interpretation?

• Will the courts agree?

State tax laws are challenged because either the state has made an assessment and believes additional tax is due based on the state's interpretation of the law.

But what if the law is vague or ambiguous, open to interpretation?

What if the company has a different interpretation of the law?

Who wins?

Deference. What is it?

Judicial deference is the idea that under some circumstances, a court should defer to a state agency's interpretation of a statute or regulation rather than the court imposing its own interpretation.

Recently the U.S. Supreme court ruled in Loper Bright Enterprises v. Raimondo which overturned the Chevron doctrine. The Chevron doctrine gave deference to the state agency's interpretation.

From a state perspective, several states did not follow the Chevron doctrine. Some states even have anti-deference statutes.

Georgia codified antideference in 2021 specifically for tax matters providing that all quesitons of law to be decided by a court or the Georgia Tax Tribunal are to be made "without any deference to any determination or interpretation, writen or unwritten, that may have been made on the matter."

Tennessee amended its statutes effective April 2022 providing that when interpreting a state statute or rule, a court should not give deference to a state agency's interpretation and should interpret the statute "de novo."

CONCLUSION

Interpretation matters.

Public knowledge of the state's interpretation is necessary if we are to have any level of certainty and compliance.

Public knowledge of the state's interpretation allows companies to make determinations as to whether they agree with that interpretation and either accept it or challenge it.

Retroactively changing the law or the interpretation of the law can have adverse effects on not only the taxpayer involved, but the taxpayer community at large.

Ambiguity in a law creates confusion, different interpretations, risk, opportunity and ultimately, most likely, litigation.

Stay sharp. Be safe.

Don't let state taxes play the villain in your business story

Our lives are like a book. A story. A journey. Each day is a new page, a new paragraph, a new sentence, a new word. There are chapters to our lives. There is a preface, a foreword, an introduction. There are many plot lines, unexpected twists and turns. Sometimes we are the hero, sometimes we are the villian. Sometimes we know exactly what to write and other times, we just stare at the blank page. Too many options, not enough options. Do we rewrite the story? Do we turn the page? Is it time to start a new chapter or do we keep going down the same road. When good times happen, we want it to last forever. When bad things happen, we can't wait to turn the page or move into the next chapter. Sometimes we cause change and sometimes change is forced upon us. We grow, we age, we hopefully learn. We adapt, we improvise and hopefully overcome. We learn what we like, what we don't like. Our personal and professional lives intertwined. Working to focus, to achieve, to realize goals and dreams while balancing time with families and friends. Obsession leads to great things, when obsession is focused on the right things without sacrificing the most important things (which aren't things).

I'm not quite sure why I started with that intro, but hopefully it means something to you.

As business owners, business and/or tax professionals, our work takes up a lot of our time, our lives. Thus, business is personal and should be taken seriously. It is how we support ourselves and our families. It is a big part of our story. They often say that what you do is not who you are. That what you do doesn't define you. I don't think that's necessarily true. It is often difficult to separate what you do from who you are. We all take on the identity of what we do or atleast for some part of the day. Or maybe we take on an alter ego. Regardless, we have our bios that tell people some of who we are, but not the whole picture.

Right about now, you are probably asking, "how does any of this relate to state taxes?" Well, as I have done in many of my blog posts over the last decade, I will attempt to bring this back to state taxes.

Companies have a story. They have a lifecycle. They start out with an idea, a vision, a dream, a goal. Then they get capital and make investments. They pick a location, buy or build a facility, hire people, start selling, start shipping, in one state, in multiple states. Then they grow - hire more, build more, sell more. Maybe they create new legal entities, new ownership structures. Maybe they start selling different products and services. Maybe they build new facilities and hire more employees in multiple states. Maybe the entities sell to each other. Maybe the entities start selling to customers in foreign countries. Maybe they create foreign entities that sell into the U.S. Maybe they acquire another entity or they are acquired by another entity. Maybe the owners simply sell their ownership interest and move on to begin another venture.

All of the above changes, stages, activities create different state and local tax issues, risks and opportunities. Some companies plan ahead before making a decision or taking action, but often the action happens before the state tax impact is taken into consideration. This results in potential tax exposure or liabilities that arise and can grow if they are not discovered or investigated. Sometimes planning ahead could have eliminated any exposure and perhaps even created tax savings or refund opportunites. Some state tax issues related to the above are:

• knowing when to file returns in a state (i.e., having a taxable presence or nexus)

• knowing when to collect sales tax on the company's sales (sales taxability study)

• identifying tax credits and incentives related to building/investing in a specific state, county or city

• identifying any sales tax exemptions related to the company's purchases

• knowing how each type of legal entity is taxed from a state income tax perspective

• knowing the state tax impact of integrating new companies, merging companies or selling interests in a partnership or S corporation

Each stage of a company's business tells a story. Is filled with various facts, plots and challenges. State taxes play a key role and impact every chapter, every page, and perhaps every sentence. State taxes can be the hero or the villain.

Being proactive is always better than being reactive or playing the "wait and see game."