Practice / Tools

What Type of Evidence Do You Need?

If you are not a lawyer and you work in the state tax field, over time, after reading court case after court case, you begin to learn what different legal terms mean. If you have read any articles or statutes and regulations regarding the burden of proof taxpayers or departments of revenue must meet when proposing alternative apportionment, you have probably read the terms:

  • Preponderance of Evidence
  • Clear and Convincing (or Cogent) Evidence

But what do these terms mean?

Preponderance of Evidence

The preponderance of evidence standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.

For example, in Mississippi, starting January 1, 2015, the commissioner may require a taxable corporation that is affiliated with one or more corporations that are not taxable to file a combined return with the affiliated corporation or corporations if he establishes by preponderance of the evidence that the intercompany transactions of the taxable corporation have resulted in the shifting of taxable income from itself to another member or members of its affiliated group not subject to tax. The commissioner may also require a taxable group of affiliated corporations to file a combined return if he establishes by preponderance of the evidence that the intercompany transactions of the corporations have resulted in the shifting of taxable income between members of the affiliated group (Miss Code Ann Sec. 27-7-37(2)(a)(ii)).

Clear and Convincing Evidence

Clear and convincing evidence is a higher level of burden of persuasion than "preponderance of the evidence."

Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.

This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing evidence"; and "clear, unequivocal, satisfactory, and convincing evidence"; and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists.

For your reference, the following is a sample list of cases that have discussed the level of evidence necessary to meet the burden of proof:

  1. Equifax, Inc. v. Mississippi Dep’t of Revenue, No. 2010-CT-01857-SCT (Miss. 2013) 
  2. CarMax Auto Superstores West Coast, Inc. v. South Carolina Department of Revenue, Docket No. 4953 (S.C. Ct. App. 2012) 
  3. Microsoft v. Franchise Tax Board, 139 P.3d 1169 (Cal. 2006)
  4. British Land (Maryland) Inc. v. N.Y. Tax App. Trib., 85 N.Y.2d 139, 147-48 (N.Y. Ct. App. 1995)

Note: the definitions above were obtained from "legal burden of proof" - Wikipedia. Other sources provide similar definitions.

30 State Tax & Business Developments You May Want to Know - August 26, 2017

The following are state tax and business developments I have curated since August 21st, and posted in the LEVERAGE SALT LinkedIn group:

  1. KPMG TWIST Podcasts for week of August 21, 2017

  2. Texas Amnesty Program Beginning September 1, 2017

  3. Texas: Time to file a petition or request a hearing extended starting September 1, 2017

  4. Texas Involvement in MTC Online Marketplace Seller VDI

  5. The Impact of New Use Tax Reporting Laws for the Future of State and Local Taxes

  6. Can You Pay Me Now? Verizon Refunding Taxes in New York

  7. States Should Adopt a Version of Colorado’s Remote Sales Tax Law

  8. The Many Reasons for the Seattle Income Tax

  9. Budget and Tax Center: Costly Tax Cuts in New State Budget Continue Precarious Road Ahead for North Carolina

  10. Expect the Unexpected: Nuances of Unclaimed Property Oil and Gas Reporting

  11. Ohio enacts several economic development changes

  12. State Rundown 8/23: Few Lingering Budget Debates Cannot Linger Much Longer

  13. Illinois Proposes Trade-Show Sales Tax Nexus Law

  14. Illinois amended regulations provide market-based sourcing guidance and other changes

  15. Virginia Circuit Court Rules BPOL Tax in Violation of Import-Export Clause

  16. MultiState's Local Policy Digest explores the top legislative developments from municipalities across the U.S.

  17. Oklahoma Tax Commission Reminds that Amnesty Program Begins September 1

  18. New Texas Law Requires Comptroller to Establish a Tax Amnesty Program Providing for Waiver of penalty or interest, or both

  19. Illinois Department of Revenue Publishes Amended Apportionment Rules

  20. A Closer Look at New York Draft Proposed Regulations under Article 9-A Business Corporation Franchise Tax Under Subpart 3-9

  21. Software Company Royalties Received from Out-of-State OEMs Are Excluded from Sales Factor Numerator in Wisconsin

  22. BLOOMBERG BNA Q&A WITH ALSTON & BIRD’S ZACH GLADNEY: PASS-THROUGH ENTITIES NEXT IN LINE FOR NEXUS ISSUES

  23. SALES TAX SLICE: 5 THINGS AMAZON FULFILLMENT SELLERS SHOULD KNOW ABOUT THE MTC’S NEW VOLUNTARY DISCLOSURE INITIATIVE

  24. CORPORATE CLOSE-UP: OREGON FOLLOWS MTC IN ADOPTING MARKET-BASED SOURCING AND APPORTIONABLE INCOME DEFINITION

  25. SALES TAX SLICE: ‘INTERNET TAXES’ EXPLAINED

  26. 2017 mid-year sales tax changes

  27. The 3 secrets for managing your Amazon inventory

  28. The FBA sales tax amnesty program explained

  29. The importance of learning what does NOT need to be done, and other things.

  30. Don’t Be Lazy: The Billable Hour Has Survived For A Reason Probably the biggest mistake most new lawyers make is that they don’t put in the work.

The above represents 'general curating' of state tax developments into one spot. If you still feel overwhelmed by the volume of state tax developments, please consider my 'custom curating' service. Meaning, clients hire LS to daily curate state tax developments relating to a specific industry, state(s), tax type and issueYou can make it as granular as you prefer. This allows you to reduce information overload, and only get the information you need to help your clients or company. This service is provided on a fixed-fee or subscription basis. Contact me at strahle@leveragesalt.com.

CALLING ALL STATE TAX PROS: Share Your Thoughts Anonymously

State tax professionals are generally reluctant to share thoughts, ideas, opinions or question state tax policy publicly on the Internet or in LinkedIn groups. Consequently, the leverage salt blog provides the state tax profession with an independent and real voice. 

State tax professionals may contact LS with their thoughts and viewpoints to be shared anonymously on the blog. This allows tax professionals to ask questions or invoke conversation around an issue without having to put themselves, their firm or corporation in the public domain. 

The leverage salt blog has been published since 2009 and contains 900+ posts.

You may send your thoughts to Brian at strahle@leveragesalt.com.

29 State Tax & Business Developments You May Want to Know - August 21, 2017

The following are state tax and business developments I have curated since August 14th, and posted in the LEVERAGE SALT LinkedIn group:

  1. Resistance is not Always Futile: New Decision in Ongoing Delaware Unclaimed Property Audit Litigation

  2. MTC Voluntary Disclosure Initiative for Online Marketplace Sellers (i.e., Amazon FBA program)

  3. A State Tax Administrator's Perspective on Partnership Taxation

  4. Illinois Court Upholds Cook County’s Beverage Tax Finding It Passes Constitutional Muster and Related Developments

  5. Webinar: August 24th - Best Practices in Achieving Obsolescence Adjustments for Complex and Commercial Properties

  6. State Corporate Income Tax Rules for Sourcing of Revenue for Law Firms

  7. Nationwide Sales/Use Tax Update - September 12, 2017

  8. Credits Can No Longer Be Applied Against Oregon’s Minimum Tax

  9. Total Solar Eclipse Won’t Black Out State Taxes

  10. South Carolina going after Amazon (the marketplace facilitator) for not collecting sales tax on behalf of the businesses that use the marketplace to sell products to SC residents

  11. Summary of New York Corporation Tax Legislation Enacted after the 2016-2017 Budget

  12. New York Amendments Regarding Sales Tax Rules for Transactions between Certain Related Entities and for Purchases Made by Nonresident Businesses

  13. Technology Company State Tax Guide from Moss Adams (Very Nicely Done)

  14. Illinois Amends Rule Regarding Alternative Apportionment

  15. Amazon’s Marketplace Business Isn’t a Tax Avoidance Scheme

  16. A comparison of enterprise zone programs in Illinois, Indiana, and Wisconsin

  17. MTC National Nexus Program Adds 2 More Participating States to Online Marketplace Seller Voluntary Disclosure Initiative

  18. Rhode Island DOT Announces that it Will Accept Applications for Recently Enacted Amnesty Program Beginning December 1

  19. California FTB Issues Draft Proposed New Pass-Through Entity Withholding Regulation

  20. Minnesota Tax Court Holds that Taxpayer May Apply NOL Carryovers from an Acquired Entity to Full Extent Permitted under IRC § 382

  21. New North Carolina Law Includes Changes to Intercompany Expense Addback Statute, Added Franchise Tax Base Deduction, and Definition of Business Income

  22. Texas Court of Appeals Upholds Subcontractor Exclusion While Reversing and Remanding on Taxpayer COGS Methodology

  23. Memo Explains Recent New York Law Changes on Transactions Involving TPP Resold Between Certain Related Entities

  24. California Supreme Court Denies Rehearing in Recent Case Involving Taxation of a Transfer of Legal Entity Interests

  25. Washington DOR Reissues Emergency Amended B&O Tax Rule on Financial Institution Apportionment to Conform with MTC Changes

  26. Three Big Problems with Sales Taxes Today — and How to Fix Them

  27. Should Online Platforms Collect Sales Tax For Third-Party Sellers?

  28. The United States Of Unicorns: Every US Company Worth $1B+ In One Map

  29. Are Remote Retailers and Marketplace Providers in the 'Path of Totality'?

The above represents 'general curating' of state tax developments into one spot. If you still feel overwhelmed by the volume of state tax developments, please consider my 'custom curating' service. Meaning, clients hire LS to daily curate state tax developments relating to a specific industry, state(s), tax type and issueYou can make it as granular as you prefer. This allows you to reduce information overload, and only get the information you need to help your clients or company. This service is provided on a fixed-fee or subscription basis. Contact me at strahle@leveragesalt.com.

PROVIDE REAL VALUE. NOT NOISE.

If you've been paying attention, which I'm sure you have, I am constantly changing my website and thinking of ways to market, re-market, re-package or change the way I present my services and myself. This is the life of a solo state tax consultant. I am always thinking. Always learning. AND I can implement changes whenever I want - maybe sometimes hastily, but I would rather be innovative and try things, then to be stuck in the trap of 'that's the way we have always done it,' or changes take time to get approved by layers of bureaucracy and by the time they get approved all momentum and enthusiasm about the change is long gone.

Life is too short to be the same as everybody else, and that is exactly what we have in the public accounting and law firm world. Everybody is the same. The same boring websites. The same descriptions. The same strategic visions. The same services. The same message. The same hot topics. Every firm is trying to be the first to write about a hot topic, or the first to go in-depth about a topic. I should know. I spend my days daily reviewing state tax developments and writing about them. I also conduct research for clients and attempt to provide insight and actionable, innovative, intelligence (I just made that term up, you can feel free to use it). 

There is so much 'noise' in the world. So much knowledge and information being spewed on the internet and social media, while you are just trying to do your job. The question is - what do you need to know to do your job? How can you best help your company or your client? Are you going deep enough into the details of the law, cases, etc. to find true value? Or are you just scratching the surface, going from meeting to meeting, running around with your head cut-off, waiting for lightning to strike? 

Life is too short to be boring. Too short to not take the risk to be creative. 

BE AUTHENTIC. BE REAL. DON'T TRY TO BE SOMETHING YOUR NOT.

What is your firm good at? What are you good at? How can you be different? How ARE you different? 

Be different. Be creative. Provide REAL VALUE, NOT NOISE.

25th Anniversary, 22 Year Career, High School Senior, 4 Year Old Firm, Building Something New

My wife and I are celebrating our 25th wedding anniversary tomorrow (August 8th). We celebrated it over the weekend with a little get away in downtown Nashville. I set up the whole weekend to surprise my wife. We stayed in a fancy hotel and had a nice dinner. I had 25 long-stem red roses delivered to the room. It was a great weekend. 

In addition to being married for 25 years, I have been doing state taxes for 22 years. That sounds crazy. I used to look at people who had been in their career long and be like, "wow," you must really know your stuff. Now I am one of those. Crazy how time flies. Speaking of time, my oldest daughter will be a senior in high school which starts this week. We are busy talking about college options and whether college is still a good investment. I have lots of opinions on this, but will hold that for another day. 

As far as LEVERAGE SALT, LLC goes. If you have been following along, I started the LEVERAGE SALT blog in 2009. I started the LEVERAGE SALT LinkedIn group in 2012 and LEVERAGE SALT, LLC in 2013. Consequently, I have been on my own for 4 years. That even sounds like a long time to me. Needless to say, I have been more successful than I could have thought when I started LS, LLC. I have made more money and had more freedom than ever before. During that time, my family and I moved ourselves from Richmond, Virginia to Nashville, Tennessee and totally renovated a house on 16 acres. We built my wife's dream home. Crazy stuff. I don't say this stuff to brag. I say this stuff to tell you my story and let you know that life is too short to not go for what you want. What are you waiting for? Permission? 

Running your own firm, especially by yourself, can be lonely at times. I find myself wanting to work at a firm again just to have more interaction. However, once you have the money, the freedom is something you can't put a price on. 

One of the things I love about having my own firm is that I can implement ideas quickly. Perhaps sometimes too quickly. Regardless, I am continually thinking of new ideas, opportunities, ways to help state tax professionals do more, get more done, etc. without the bureaucracy of large firms. 

At my core, I love analyzing court cases, rulings, daily developments and writing about them. I also love handling controversy - I call it, "research with a purpose." You may have noticed that I am attempting to build a state tax controversy innovation center. The goal of the Center is to serve and promote state tax controversy professionals across the country by building a mastermind network, knowledge sharing publication, CPE, and various tools. 

I want to thank you for reading my blog. Following along on my crazy story. I hope you find my blog useful and my story helpful. 

Please connect with me on LinkedIn. Send me an e-mail. Subscribe to the blog. Join the LinkedIn group. I would love to hear your story. I may start promoting and sharing stories of other tax professionals on my blog in the near future. Lots of ideas. Lots of plans. 

Have a great week!