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.

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."

the BIGGEST STATE TAX ISSUE companies face today

The first question a kid asks before starting to play a game that it has never played before is - what are the rules?

Seems like a simple question and one that should be easily answered.

Over the holidays, my family played games. We didn't have to ask about the rules for games we had played several times before, because the rules hadn't changed. For some of the games we hadn't played in a while, we needed to read the instructions to refresh our memory of the rules, but again, the rules hadn't changed. For games we had never played before, we had to ask - what are the rules? But once we learned them, we could play the game and even WIN the game.

Let me ask you this?

Do you know the state tax rules? Income tax rules? Sales tax rules?

Are the rules different depending on the state?

Once you know the rules for that state, do they ever change?

If you stop doing business in a state and then re-enter the state to do business in a later year, will the rules still be the same? Will you simply need a refresh or will you have to learn all new rules?

State taxes is like playing a game where the rules keep changing during the game. The rules don't stay the same year after year, and they may not even be clear when you start the game.

BIGGEST ISSUE

At this time of year, many firms will release reports on the top issues of 2023 and/or what they think the top issues of 2024 will be. However, I think the BIGGEST ISSUE is the lack of clarity and ability to rely on state tax statutes, regulations, court decisions and rulings. In other words, the BIGGEST ISSUE is simply the ability to know how much tax to pay, and how to avoid interest and penalties.

The 'greyness' or lack of clarity and certainty create confusion (and yes, opportunity), but in a world where companies simply need to walk before they run (i.e., comply), knowing the baseline can be the most important line.

Not only are there many 'grey issues' when it comes to multistate income tax and sales tax, there are many issues where there is simply 'discretionary authority.' Again this can be positive, but when a company needs to make decisions and take positions on tax returns, it can be frustrating. The lack of clarity and certainty creates risk and unintended consequences.

BRIGHT LINE TESTS

Bright line tests or straight forward thresholds for nexus, taxability, etc. are great in most cases. However, then the argument becomes about the bright line and how it is arbritary or should be changed. Bright line tests quickly create winners and losers.

Greyness or discretionary authority provides opportunities for each player to determine on their own if they are a winner or loser (atleast until the referee throws a flag).

PRIVATE LETTER RULINGS

When in doubt, file a private letter ruling. Get certainty. Correct??

Well, it's not that simple. An effective private letter ruling can provide certainty and help a company avoid additional tax, interest and penalties. An ineffective private letter ruling can be a waste of time. What do I mean?

Many taxpayers choose NOT to do a private letter ruling because of the following concerns:

• Taxpayers must disclose their identify before obtaining an answer from the state.

• Facts may not be accurate, or disputed later, making the answer invalid.

• Ruling may be revoked at any time.

• Timing of the proposed and prospective transaction with obtaining an answer from the state.

• Rulings are binding unless the facts are not accurate.

• Unsure as to how deep of an analysis of the law the corporation is required to provide.

• The length of time to obtain a ruling.

• Consequently, there is even uncertainty in the process of attempting to obtain certainty.

AMENDED RETURNS

Sometimes the best way to gain certainty is to simply pay the additional tax (or tax that you disagree with) and then file a refund claim (amended return) to challenge the state's position.

I don't love this option since the taxpayer has to pay the tax first, but it does eliminate risk and makes the state declare their position. However, if the state's position is contrary to the taxpayer's, then the taxpayer won't love this option. But this option does avoid interest and penalties.

TAKING THE POSITION QUIETLY

Some taxpayers may choose to simply do their own research, document their position, identify the appropriate levels of assurance and then take the position on the tax return and wait. Wait to see if the state ever comes calling (audits or sends a notice). If the state does send a notice or audits the taxpayer, then the taxpayer will have to challenge the state and make its case. If the taxpayer loses, then they may have to pay additional tax, interest and penalties. So this option can cost more.

CONCLUSION

Uncertainty is not going anywhere. The rules keep changing and will continue to change. Therefore, each company or taxpayer must make informed decisions, exercise good judgment, receive wise counsel and document their positions. Then they must decide and take appropriate action based on all of the facts and applicable authority. That appropriate action may be different in each situation, but the key is for taxpayers to do the analysis and make the best decision they can so they "know how much tax to pay and avoid interest and penalties."

conduct state tax "year-end" planning early, often & always

This is a Public Service announcement. Revealing a secret from the state and local tax underground. A secret that makes it difficult for companies to do business. To stay in compliance. To avoid compounding tax liabilities and interest and penalties.

What is this secret?

Wait for it . . . . . . . .

State taxes are a "moving target."

A "moving target" is defined as:

• something that moves while someone is trying to hit it

• something that is always changing

Some state tax rules don't change. Some state tax rules change at a certain time or in a certain tax year based on federal or state legislation. Some state tax rules change every year. Some state tax rules change suddenly based on a court case or ruling. Some state tax rules change without you knowing it based on a state's internal policy decision or change in interpretation of a statute or regulation.

• So how does a company plan?

• Conduct year-end planning?

• Conduct beginning of the year planning?

• Plan for acquisitions, mergers, divestitures?

Companies must stay on top of income tax laws on a tax year by tax year basis. Meaning, income tax laws are generally static for a specific tax year, but can change from year to year. Thus, tax pros should not follow "SALY" (same as last year) when preparing returns. This can lead to "IAP" (interest and penalties). With that said, there are situations when court case decisions or rulings happen that may have retroactive impact and create amended return / refund opportunities or may simply alter prospective returns.

In regards to sales tax, there are static rules but the interpretation of some of those static rules can change and are definitely not the same in every state. Sales tax rules and tax rates can change at different times of the year due to court cases, rulings and state legislation. Unlike income tax, sales tax periods are generally monthly, quarterly or annual

It's the lack of uniformity among state tax laws that creates risks and opportunities.

Some state income tax laws that may differ from state to state are:

• Economic Nexus (creating a taxable presence)

• Sales sourcing of sales of tangible property and services

• Requiring throwback of sales

• Allowing or requiring combined reporting

• Allowing a pass-through entity (PTE) to make a PTE tax election (i.e., $10,000 SALT-CAP work around)

• If PL 86-272 protection applies

• Conformity to federal international tax considerations (i.e., GILTI, FDII, deemed dividends, ECI, etc.)

• Treatment of bonus depreciation

• Treatment of disregarded entities (i.e., single-member LLCs or Q-Subs)

Some sales tax laws that may differ from state to state are related to the following:

• Sourcing of sales of services (including multiple points of use)

• Sourcing of sales to/from non-US countries

• Sales of software, SaaS, and other computer services

• Sales of information services or data processing

• Sales of services

• Sales by construction contractors

• Treatment of sellers in drop shipment transactions

• Allowable or acceptable forms of exemption certificates

• Treatment of leases (lessors and lessees)

• Width and breadth of manufacturing exemption

• Occasional sale or casual sale exemption when selling assets or business

• Treatment of repairs and maintenance (labor and parts)

• Treatment of research and development activities

• Sales to governmental and non-profit entities

I could keep going, but I think you get the point.

So what is a company supposed to do?

Depending on what stage your business is (i.e., start-up, emerging, growth, mature), I recommend you inquire of your tax professional about the state tax impacts of your business. You may only have one or a few states to deal with right now. Some of you may have 20 or more states to consider. The key is to get on top of it now. To know what you don't know so you can make informed decisions. To stop problems from growing out of control and implement proper procedures and tax decisions. Be proactive. Don't let blind spots create a compound effect of problems.

Conduct year-end state tax planning, early, often and always.

QUOTES

• "In all affairs, it's a healthy thing now and then to hang a question mark on the things you have long taken for granted." - Bertrand Russell

• "Bureacracy is the art of making the possible impossible." - Javier Pascual Salcedo

• "Knowledge is the beginning of practice; doing is the completion of knowing." - Wang Yangming

"darkness is death"

Time change. Daylight savings time. Fall back. Spring ahead. However you describe it, most (if not all of us) changed our clocks recently. We either gained an hour or lost an hour (depending on how you look at it), but one thing I do know - I've lost daylight. So I'm not sure how this is "daylight savings" time. I don't like to complain, but I just do. So I'll just say that I really like sunlight and dislike darkness. As they said in a cartoon movie I can't remember the title of right now - "Darkness is Death."

Regardless of how you feel about changing your clocks or sunlight or darkness, one thing is certain, times continue to change. The way business is conducted continues to change. New technologies are created (whether that's good or bad; or will be used for good or bad is yet to be seen). And last but not least, state tax legislation continues to change; and court cases and rulings continue to be made which ultimately create certainty and uncertainty. Wait, what? What did you just say?

Yes, new legislation, court cases and rulings create just as much uncertainty as they do certainty.

Well, that's great.

Just as each company's facts and circumstances differ, state tax laws seem to have a life of their own when the answer isn't "black and white" (which is most of the time); or when each state's laws are different. This creates a world of grey (or some may say, "darkness"). This "darkness" is why I say every state tax question is a research question. (A research question that needs to be solved by a human (not A.I., AI or artificial intelligence, just saying)).

Darkness is debilitating. It's hard to drive in the dark without headlights. It's hard to walk in the dark without a flashlight. Darkness creates fear and uncertainty. Darkness creates unknown risks. Thus, light is needed to move forward with some level of assurance and confidence.

Darkness can also create unknown opportunities. You can't see them. This requires faith. A compass. A navigator. A roadmap.

"Darkness" in the state tax world surrounds several areas and questions companies continually ask:

• what states do I need to file tax returns in?

• is what I'm selling subject to sales tax?

• which entity in my affiliated group of companies is required to file the tax return?

• if I sell my interest in this partnership, to what states do I source the gain and have to pay tax?

• I'm selling services all across the United States. How do I source those sales to each state in the apportionment factor of my income tax returns?

• do I really have to get exemption certificates from my customers?

• do I have to register with a state for sales tax purposes to provide a vendor with that state's resale exemption certificate or can I use a multijurisdictional certificate?

• am I required to file combined income tax returns or does every entity file separately?

• should I make this election or that election?

• do I qualify for these tax credits?

• do I have to collect sales tax on my total gross receipts or can I deduct costs reimbursements or costs that I flow-through and pay to someone else?

• how do I know if we really meet the requirements to be protected from a state's income tax by P.L. 86-272?

• I didn't even know that state had a gross receipts tax.

• what is a franchise tax and why is the tax base so high?

• am I really selling SaaS and does the state tax it?

• should I make a state's pass-through entity tax election? How do i quantify or model the impact? Will it be beneficial for all partners and shareholders?

• should I file a Voluntary Disclosure Agreement (VDA) or simply start filing returns?

• should I request a Private Letter Ruling (PLR)?

• should I challenge (protest) this audit assessment or simply pay it and move on?

• when can I stop filing returns in a state?

• how do I dissolve or withdraw from a state?

• is registering with a state's Secretary of State's Office the same thing as registering with a state's Department of Revenue (taxation)?

• what sales tax compliance software should I use? Should I outsource the return prep to a third-party?

I could keep going, but I think you get the point. The darkness is everywhere.

Finding the light in the state tax world is not easy.

Unlike darkness in life where you can just flip the light switch and see, darkness in the state tax world takes research and analysis and judgment based on experience. And even then, the answer may not be clear (still dark or grey).

Consequently, I think the "light" is finding the right-fit state tax consultant that you trust and like working with. Someone with not only the technical knowledge and experience, but the ability to look at an issue from 2 feet and 50,000 feet. To be technical and practical. To look at the risk and provide judgment. To reduce risk. To recommend positions with the proper level of assurance. Knowledge. Judgment. Advocacy. That is the light in the proverbial darkness. The compass. The roadmap. The flashlight. The headlight.

I hope you find the light you need to move your company and clients forward.

If you are a state tax consultant, I hope you "shine brightly."

QUOTES

"The art and science of asking questions is the source of all knowledge." - Thomas Berger

"The prize goes to the person who sees the future the quickest." - William Stiritz

"We are drowning in information and starved for knowledge." - John Naisbitt

STATE TAX KNOWLEDGE UPDATE (53 ITEMS) - AUGUST 3, 2018

The following are state tax and business developments I have curated since July 3rd, and posted in the LEVERAGE SALT LinkedIn group:

Some of the items may be on the same state/issue/topic, but they are from different sources which may give you a broader perspective to help your company or client.

1. New Jersey Closes Loophole, Increases Multi-Millionaires Rate

2. Alabama Announces Guidance in Response to Wayfair Decision

3. Michigan Provides Further Guidance on Impact of Federal Act

4. Remote Sellers Will Have Wisconsin Tax Duties Beginning October 1

5. Indiana Updates Remote Seller Guidance

6. Indiana Explains Income Taxes on Overseas Earnings

7. Enacted Louisiana law addresses the timing of expiring corporate income tax provisions

8. California OTA Issues Updated Draft of Proposed Permanent Regulations on Administration and Procedures of Appeals and Petitions for Rehearing

9. Indiana DOR Bulletin Discusses Recently Enacted Legislation, Including State Impact of IRC Sec. 965 Repatriation Provisions, GILTI, and IRC Sec. 163(j)

10. Maine Revenue Services Explains Procedures for Filing and/or Amending Returns Given State’s Nonconformity to Recent Federal Tax Law Changes

11. Pennsylvania: Bulletin Reflects New Law Reversing DOR’s Previous Policy by Allowing for Depreciation of 100% Bonus Property

12. New Jersey: New Law Requires Amnesty Program with Potential Waiver of 100% Penalties and 50% Interest

13. Massachusetts Appellate Tax Board Holds that Taxpayer is a “Manufacturer” Required to Compute its Corporate Excise Tax Liability Using Single Sales Factor Apportionment

14. New Jersey: New Law Includes Mandatory Combined Reporting Regime, Market-Sourcing Provisions, CBT Surtax, and Responses to Some Provisions of the Federal 2017 Tax Act

15. New York: Appellate Court Affirms Tax Appeals Tribunal Ruling Addressing Bank’s Treatment of NOLs

16. Vermont: New Law Updates State Conformity to Internal Revenue Code; Responds to Some Provisions of the Federal 2017 Tax Act

17. Georgia DOR Explains Exclusion for Dividends from Sources Outside the US, Including Application of IRC Sec. 965 Provisions

18. North Carolina: New Law Modifies Sourcing Language for Receipts from Intangibles for Sales Factor Purposes

19. Oregon DOR Issues Administrative Rule on New State Repatriation Tax Credit Pursuant to IRC Sec. 965 Repatriation Income for Tax Year 2017

20. Connecticut Issues GILTI Guidance

21. North Carolina Changes Intangible Property Sourcing Rules

22. MTC Adopts Apportionment Regulation Amendments

23. Delaware Imposes Tax on Series LLCs

24. Utah Enacts Deferred Foreign Income Changes

25. Florida DOR Holds that Taxpayer May Include Certain Intercompany Sales with Foreign Affiliates in its Sales Factor

26. New Jersey Division of Taxation Explains Upcoming Amnesty Program with Potential Waiver of Penalties, Reduced Interest, and Non-Participation Penalties

27. Alaska: New Law Requires Public Utilities to Use MTC Three-Factor Apportionment Formula for Corporate Income Tax Purposes

28. Connecticut: New Guidance Issued on Treatment of GILTI for Corporation Business Tax Purposes

29. Minnesota DOR Discusses How 2017 Federal Tax Act May Affect Business Tax Returns for Tax Year 2018

30. Rhode Island DOT Comments on Some State Tax Impacts of the Federal 2017 Tax Act

31. Utah: New Law Clarifies Previously Enacted Legislation Involving IRC Sec. 965 Deferred Foreign Income, and Revises NOL Provisions

32. Rhode Island Adopts C Corp IRC Sec. 965 Regulations

33. California Taxpayer Cannot Force Retailer to Seek Sales Tax Refund

34. Minnesota Hosting SST Meeting to Discuss Wayfair

35. Maryland Issues Wayfair Guidance

36. Indiana Wayfair FAQ Page Talks Enforcement

37. SST Meets to Discuss Wayfair

38. Texas Provides Guidance on Wayfair Decision

39. Wayfair Decision Does Not Affect Rhode Island Remote Sellers

40. Minnesota Sets Remote Collection Date

41. Indiana Explains Impact of Wayfair

42. Nebraska Issues Guidance for Remote Sellers

43. Utah Enacts Economic Nexus Law

44. Alabama Explains Impact of Federal Tax Cuts and Jobs Act

45. Michigan Issues Sales Tax Economic Nexus Guidelines

46. MTC Adopts Two Amended Model Rules Pursuant to Section 18 Alternative Apportionment Regulatory Project

47. Alabama DOR Issues Preliminary Guidance on Some State Impacts of the Federal 2017 Tax Act

48. Delaware: New Law Imposes Annual Tax on State-Registered Series LLCs

49. Michigan Appellate Court Affirms Disallowance of MBT Modified Gross Receipts Tax Base Deduction for Purchased Services

50. Vermont Department of Taxation Issues Certain Guidance on Federal 2017 Tax Act, Specifically the Inclusion of IRC 965 Income on State Returns

51. Arkansas DFA Says Remote Sellers Should Register and Collect Tax Pursuant to Recent US Supreme Court Decision that Overrules Quill

52. Kentucky DOR Updates Post- Wayfair Comments; Announces October 1 Enforcement Date and Reiterates Prospective Implementation

53. Nebraska DOR Comments on Recent US Supreme Court Decision that Overrules Quill, Including January 1, 2019 Enforcement Date and Promise of “No Retroactivity”

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 LEVERAGE SALT to daily curate state tax developments relating to a specific industry, state(s), tax type and issue. You 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.