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."

navigating the state tax "mind-field" without "burning your popcorn"

If you work in my profession, you are likely aware of The Tax Foundation, the Multistate Tax Commission (MTC), the Council on State Taxation (COST) and the Streamlined Sales Tax Governing Board. However, were you aware of some of the resources they have?

History of Sales Tax

For example, I found this lovely webpage from the Multistate Tax Commission (MTC) which talks about the history of sales tax. https://www.mtc.gov/uniformity/sales-tax-on-digital-products/history/

• According to the MTC, "this page is intended as background to aid in the review of the issues that arise when we consider a sales tax on digital goods. We begin by clarifying some of the terminology we use on this project, then move on to a brief history of the sales tax and some similarities and differences in how states treat the tax. You can use the links below to jump to a specific section."

I recommend you take a peek if you are looking for a quick and concise summary of the history of sales tax and basic terminology and some uniform rules shared by the states.

History of Indivual Income Taxes

The following link from the Tax Foundation provides a brief history of state individual income taxes. https://taxfoundation.org/data/all/state/when-did-your-state-adopt-its-income-tax/

The following link from the Tax Foundation provides additional insight into the history of state individual income taxes and the trend towards a flat tax rate structure. https://taxfoundation.org/blog/flat-tax-state-income-tax-reform/

Key State Tax Issues

The Council on State Taxation (COST) has several state tax resources. One of their webpages (https://www.cost.org/state-tax-resources/cost-policy-positions/) provides COST's policy positions regarding several key issues and areas of state taxation such as:

• alternative apportionment

• confidentiality of taxpayer informatoin

• digital service taxes

• financial reporting consequence of significant tax law changes

• Gross Receipts Taxes

• Independent Tax Appeals Tribunals

• Mandatory Unitary Combined Reporting

• Markeplace Facilitators Collection of Sales, Use or Similar Taxes

• Property tax administration systems - fair and equitable

• related company expense disallowance

• Remedies for unconstitutional or otherwise judicially invalidated taxes

• Reporting requirements for federal tax changes

• retroactive tax legislation

• sales taxation of business inputs

• simplification of the sales, use or simliar transaction tax system

• state corporate income tax filing methods

• throwback and throwout rules

• unclaimed property

Another COST webpage (https://www.cost.org/state-tax-resources/cost-studies-articles-and-reports/) provides links to COST studies, articles and reports on topics such as:

• e-invoicing for sales tax

• digital-business input exemptions

• mandatory worldwide combined reporting: elegant in theory but harmful in implementation

• COST scorecard: the best and worst of state tax administration

• state digital services taxes: a bad idea under any theory

• resisting the siren song of gross receipts taxes: from the middle ages to Maryland's tax on digital advertising

Remote Sellers and Marketplace Facilitators

The Streamlined Sales Tax Governing Board website has great sales tax information for sellers in general, but also specifically for remote sellers and marketplace facilitators.

• Remote sellers - https://www.streamlinedsalestax.org/for-businesses/remote-seller-faqs

• Marketplace facilitators - https://www.streamlinedsalestax.org/for-businesses/marketplace-facilitator

• Marketplace sellers - https://www.streamlinedsalestax.org/for-businesses/marketplace-sellers

State Tax Climate, Trends and Maps

The Tax Foundation has a great page entitled, "Center for State Tax Policy" (https://taxfoundation.org/research/state-tax/) which has several articles and tools such as:

• 2024 State Business Tax Climate Index

• State Tax trends

• State Tax maps

• State Reform guides

• State and Local Tax collections

• Excise Taxes

• Taxes and Inflation

• Cost Recovery

Be Aware

Regardless of whether you use any of these resources, you should be aware of these organizations that seek to provide support for taxpayers and/or influence state tax policy to create more uniformity and/or fairness among the states.

The "Mind-Field"

State taxation is ever changing and is influenced by many forces. Middle market companies struggle to stay on top of these changes and can't afford to litigate every matter or issue (that perhaps, should be challenged or raised by law firms as issues that should be challenged). Consequently, middle market companies are in constant need of clarity to reduce uncertainty, to mitigate risk of exposure and obtain practical solutions to navigate this "mind-field."

"Don't Burn your Popcorn"

As I've mentioned in other editions of this newsletter, the more I see artificial intelligence (AI) being used, the more I am convinced that the best "tool" or guide a company can have is human, real intelligence. The "easy button" or "microwave" may not be the most reliable tool.

Popcorn still gets burned in the microwave due to user error or incorrect correlations between the popping instructions and specs of the microwave. Don't burn your "popcorn."

Stay smart. Do the work. Don't settle.

why sales tax software (& AI) is not the solution

THE PROBLEM

As I say in the title, sales tax software is not the solution. What I mean is that software cannot be a 'load and leave it' solution. It cannot be used blindly without proper oversight and implementation.

Otherwise the old saying, "garbage in/garbage out" becomes all too true.

You can't assume that your point of sale system or your ERP systems are properly communicating with your tax decision software. If the systems don't understand each other, or the company is not getting proper advice from the tax decision software company or other outside consultants, errors can happen. Sales tax can be collected for states that the company isn't registered in. Sales tax can even be collected for states in which the company is registered in, but the tax doesn't get remitted because the other system doesn't report it or expect it (capture it).

If these errors go on for months or even years, the liability can be significant in several states creating a mess to clean-up. The clean-up can involve filing Voluntary Disclosure Agreements (VDAs), filing amended returns, and even going back to customers to issue refunds, and/or the paying of tax, interest and penalties out of your own pocket.

I see too many clients with sales tax problems caused by software issues, registration issues, account login issues, etc.

During due diligence, whether we are assisting the buyer or the seller, I see too many companies that have played the 'wait and see' game or were simply unaware of their sales tax obligations due to either the complexity of what they were selling and making bad assumptions, or getting bad advice, or bad software implementation.

Emerging companies and middle market companies generally don't have enough in-house staff to properly complete their sales tax compliance, let alone ensure their software systems are communicating properly. Even if they do, they may incur employee turnover that makes it difficult to keep a handle on what is going on. If the company is relying on the software company to provide that assurance, unfortunately, that trust is often misplaced as the software company is selling the software (a tool) and is not providing specific tax advice to help the company apply the tool to the company's unique facts.

IT'S JUST A TOOL

For the last several years, we have seen the creation of many new software tools for sales tax compliance and other areas of tax. Some of them are great, some not so great. However, we've also experienced that feeling of being overwhelmed by all of the software tools available that you get to the point of -

• this is all well and good, but who really understands it?

• who really implements it?

• how do I know when I need it?

• and the most important - if I need it, how do I implement it well?

All of this talk about how great AI (artificial intelligence) is and how great it can be, is ........(to be determined). However, regardless of the tool you use (and AI is a tool), you can never 'load it and leave it.'

If you expect a tool (software or AI) to be as simple as pushing a button and magic happens that you can rely on, then prepare for 'garbage' to eventually appear.

Over the past year, certain lawyers got in trouble for using AI in cases, relying on false legal support, which they call "hallucinations." That can happen in any industry or profession.

CAN'T DELEGATE DECISION MAKING

Regardless of the tool, we have to remember these are tools. We can't delegate our responsibility. We can't delegate oversight. We can't delegate decision making.

It's like doing tax research and relying on some database or chart to tell me the answer by just doing a simple search. That is not analysis. That is not looking at all of the facts, and other court cases, rulings, etc. It is looking at things in a 'vacuum.' A vacuum can only pick up what is in front of it, it doesn't see the entire room, you do (or at least you better). The vacuum has to be moved to find the other dirt in the room.

CONCLUSION

Software and AI are not the solution. You are.

don't let uncertain state tax positions surprise your company or client

Uncertain state tax positions are everywhere. Your company or your clients likely have them. Have you identified them? Have you addressed them?

During ‘busy season’ or ‘tax season, state tax questions often arise or lay there quietly in the background while federal tax issues get all of the attention.

State tax issues or the state tax impact of an issue or transaction is generally considered after the federal tax impact is addressed.

Non-state tax experts are sometimes just too busy to give state tax issues adequate time before a deadline. In other situations, non-state tax experts may simply view a state tax issue as less complicated than it really is. Consequently, state tax issues may not get addressed before the original due date of the returns and may only get addressed in late summer or early fall prior to the extended due date. This often creates a time crunch for uncertain state tax positions to get adequately addressed. That's one of the problems.

The other problem is that most state tax issues are more complex than they appear. A high-level overview or two hours of research won't cut it, especially when you are trying to determine the state tax impact of a large transaction or adequately source the gain on a sale of a partnership interest to the right state or states.

What are these 'uncertain state tax positions'?

Where can they appear?

The following is a summary of some of the areas or items that create uncertain state tax positions on state income tax returns:

1. Structure - intangible holding companies; REIT / RIC; buy / sell companies, management / services companies; state-specific structures; captive insurance companies; finance companies; factoring companies; check-the-box entities; pass-through entities;

2. Transactions - mergers, acquisitions, divestitures; repatriation dividends; reorganizations; bankruptcy issues;

3. Nexus - P.L. 86-272; economic nexus; attribution of activities; forced combination; foreign company nexus despite no permanent establishment in U.S.;

4. Filing Options - separate, nexus combined, hybrid nexus combined, unitary combined (waters-edge, worldwide); consolidated;

5. Apportionment - ability to apportion income; choice of formula; throwback / throwout; joyce vs. finnegan; sales factor sourcing (destination, market-based sourcing, cost of performance, commercial domicile, location of payor);

6. Tax Base - business v.s nonbusiness income vs. separate accounting; Internal Revenue Code (IRC) conformity; related party addbacks; depreciation adjustments; dividends received deduction conformity; transfer pricing; foreign source income; state specific additions/subtractions;

7. Treatment of Partnerships - entity vs. aggregate theory; unitary (tax base / factor flow-up) vs non-unitary (allocation); sale of partnership interest;

8. Tax Attributes - NOLs (pre-apportioned vs. post-apportioned); IRC Sec. 382 limitations; survivor / non-survivor limitations; credits (claw-backs; compliance with agreements);

How do you ensure these items are addressed adequately?

• Get a state tax expert involved early.

How do you know when your client has any of these issues?

• Create a checklist that helps you identify clients or when your company may have these issues. That checklist may be based on the amount of sales a company has, the amount of taxable income, the number of states they file returns in (or the number of states they should file in), or if they have a specific structure or entered into a transaction that obviously needs reviewed.

There are multiple checklists you could create, the key is to make one that works for your company or firm that doesn't slow down the compliance process, but does allow you to reduce risk and adequately document a supportable, defendable or winnable position.

I hope you have a great tax season (now and in the fall). I hope all of your uncertain state tax positions achieve as much certainty as they can and are adequately addressed and documented.