who or what is 'rocking the boat'?

Usually 'rocking the boat' is perceived to be a bad thing, but 'rocking the boat' can be a good thing. Let me explain.

If you are riding in a boat heading into a storm and the boat starts rocking, that is usually a bad thing or scary. The boat is rocking to due to some external force or environmental change.

If someone on your boat gets up and starts jumping around without any explanation and you can't stop them or talk with them, that is usually a bad thing.

But if the the captain of the boat purposely turns the boat, changes direction and heads into the storm, then the rockiness of the boat is a good thing. It means the boat is going in the right direction. A strategic, purposeful direction. The rockiness is part of the process of reaching the chosen destination.

If someone on the boat gets up and voices a concern with the current direction of the boat, and makes a valid point why the boat should change course, the rockiness of the boat is a good thing. A necessary thing.

I'm sure we could keep going with this analogy or you could make up better analogies, but you get the point. Change, upheaval, incurring resistance or turbulance is sometimes a necessary or required part of the process of achievement or improvement.

HOW DOES THIS APPLY TO STATE TAXES?

2024 just began. January already gone. State governments have started or will be starting their legislative sessions. Proposals are flying all around. This is in addition to the state tax law changes that were enacted last year that became effective in 2023 or as of January 1, 2024. On top of the state legislative proposals, we also have federal legislation that is moving through the House and Senate that will have ripple effects on the states regarding research and development expenses and other items (appears to have a high probability of passing). The SALT CAP (i.e., state tax deduction limit of $10,000) is proposed to double to $20,000 (based on commentary, this legislation has a low probability of passing). As with all federal tax legislation, some states automatically conform, and some states don't conform until they specifically say they do.

All of these changes can 'rock the boat' of your business.

These are external changes that you don't have control over. You may be able to influence them (or some people may be able to), but for most companies, their 'boats' get rocked and they have to learn how to change course to find calmer waters.

Some state tax issues or items that are currently being challenged or expected to become bigger issues in 2024 that could 'rock your boat':

1. More states to adopt state income tax exconomic nexus thresholds

2. The protections of P.L. 86-272 continue to be challenged and worked around.

3. Gross receipts taxes (Ohio, Washington, Tennessee, Oregon, Nevada) continue to change their rules.

4. Sourcing sales of services or intangibles for income tax apportionment purposes continues to be more confusing with market-based sourcing - do you source to your customer or your customer's customer?

5. How do you source the gain on the sale of your partnership interest?

6. Should my company really make pass-through entity tax (PTET) elections in all states where we can?

7. Do I really owe the California LLC fee or minimum tax based on my ownership in a California LLC?

8. Am I required to file a state income tax combined return?

9. Should I make state income tax elective consolidated return elections?

10. Will the Washington capital gains tax survive challenges and should I pay it?

11. Does everyone have economic nexus for income tax purposes if the state has no 'factor presence' threshold?

12. Can a telecommuting employee that does 'back office' functions create nexus but a telecommuting employee that solicits sales be protected by P.L 86-272?

13. Is SaaS considered tangible personal property or a service for state income tax apportionment purposes?

14. Does P.L. 86-272 apply to sales of SaaS?

15. How can a company realistically source sales of SaaS when the users are in multiple states and the buyer doesn't provide the data?

16. Are state 'throwback' rules constitutional?

17. Should market-based sourcing really create economic nexus?

I could keep going, but I will stop.

CONCLUSION

External forces will always 'rock a company's boat.' However, even if the boat isn't currently rocking, a taxpayer or a tax consultant may need to stand up in the boat to advise or ask the captain of the boat to change directions. The goal is to adapt to the wind or to change the direction of the boat so the company can move towards calmer waters or avoid the storm altogether.

Unfortunately, the constant change in federal and state tax legislation and court cases and rulings, makes it difficult for the waters to stay calm very long.

The best strategy for a company to thrive in this type of environment is to monitor changes, make informed decisions and most of all - be proactive. Don't wait until your in the middle of the storm.

You can always navigate out of the storm, but the damage to the boat will differ based on how quickly you change course.

Here's to smooth sailing.

when state tax laws change, tax pros & taxpayers respond like my cats

Like several parts of the country, this week we got abnormally cold temperatures and about 6 to 7 inches of snow in Nashville. We live on a hill on 16 acres. We don't normally get this much snow and definitely not this cold (zero or negative temps). Oh, did I mention we live on a hill.

So, when this level of 'winter' occurs, we basically don't go anywhere and just wait for it to melt. I do a little shoveling where I can. Actually, I did shovel my road on my hill so I could attempt to get out if I wanted to. Most people would have just played the waiting game. Not me. (Let's attempt to hurt my back for the sake of a clean road.)

My family calls this week - "snow week." A time where work pauses and my wife gets to play games, do art, and fun stuff with our daughters. In other words, a time where everyone is trapped at home.

While I continue to work from home as if nothing has happened.

THE CATS

We have three outdoor cats that we gathered up and put in our heated garage to protect them from the extreme cold. When I go in the garage every morning, one cat is content and just wants to be left alone, one cat is a little confused, but then immediately starts to eat and seems relaxed, and the last cat follows me around, wanting petted non-stop, looking like he wants to jump on my head (he's the anxious one). He keeps acting like he wants out of the garage. Our garage doors are glass. He will sit at our garage doors and just look outside and whine.

Sidenote - when he is outside and winter comes (starts to get colder), he will often come to our windows or doors and look in - like he wants to be inside. In other words, you can't make him happy. He always wants the opposite of what he has (sound familiar?). He thinks he wants out of the garage so he can play in the snow and cold, but he would immediately want back in.

Why do I share all of this in a newsletter about state taxes?

Well, I think life has a lot of great analogies for state taxes (or it's just because that's my profession).

JANUARY IS "SNOW MONTH" FOR THE TAX PROFESSION

We are in the middle of January and it is the calm before the storm for most tax practitioners. In the state and local tax (SALT) profession, there really isn't any off-season. It's busy season year-round. With that said, we do experience "higher call-volumes" during tax 'busy season.'

In addition to tax 'busy season' getting ready to kick-off, state government legislative season or sessions will be starting soon. Governors and others are already making their proposals or ideas known. Every year, states change their tax laws via these sessions. These changes can be unique to the state or they can be related to conforming or not conforming with federal tax legislation. These changes are in addition to the daily non-legislative changes that occur due to new interpretations of current law, court decisions, private letter rulings, audit adjustments related to grey areas of tax law that taxpayers did not expect to be interpreted in a certain way.

Some state tax policy organizations that are great resources for monitoring law changes or being involved in impacting policy changes are:

• The Tax Foundation

• Council on State Taxation (COST)

• Multistate Tax Commission (MTC)

• National Conference of State Legislatures

• Federation of Tax Administrators

The Tax Foundation published an article about State Tax Changes taking effect January 1, 2024.

COST has a lot of great resources that only members can obtain, but they also provide some great FREE resources such as their Policy Position Statements, Amicus Briefs, other studies and reports, etc.

The MTC has a number of uniformity working groups that you can participate in or attend that can be enlightening.

WHEN STATE TAX LAWS CHANGE, TAX PROS AND TAXPAYERS RESPOND LIKE MY CATS

Just like my cats, tax pros and taxpayers respond differently to tax law changes and this time of year.

Some tax pros and taxpayers will greet tax law changes like its no big deal, not realizing the impact or the reason why they should care.

Some tax pros and taxpayers will understand what is going on and be cautious and take a 'wait and see' approach, calmly waiting for guidance so they can make informed decisions and move on.

Some tax pros and taxpayers will be anxious, will want guidance immediately, even if the tax law change has just been proposed and not enacted. They will pace and want to know what to do (even if the law change never happens).

Regardless of what cat you feel most like, this is an annual, recurring event where state tax law changes can feel like an 'avalanche' of snow.

An effective state tax pro, daily monitors state tax law changes in addition to the annual state legislative sessions.

A state tax pro looks for risks and opportunities to taxpayers.

A state tax pro provides technical and cost-effective practical guidance. Identifying the grey areas. Explaining the issues and options. Providing navigation. A compass. A roadmap. Direction.

In the context of thinking of state tax law changes as snow, a state tax pro provides a 'shovel' or 'snow plow.'

CONCLUSION

Regardless of how you feel about state tax law changes or snow, winter comes every year. I hope you don't get trapped at home for too long when winter comes. I also hope you find your shovel or snow plow to move forward when the avalanche of state tax law changes occur.

Here's to spring.

DON'T PANIC - Physical Presence No Longer Matters in Determining Whether A Company is Required to Collect Sales Tax

On June 21, 2018, the United States Supreme Court ruled in a 5-4 decision in South Dakota v. Wayfair, Inc., et al, that the physical presence test under the 1992 Supreme Court case (Quill Corp v. North Dakota (504 U.S. 298) no longer applies to the obligation to collect and remit sales tax on sales to customers in a state.

DON'T PANIC

Let's pause and everyone take a breath - the articles and posts about the case are like an avalanche of gloom and doom. We don't know exactly how all of this will play out. States will respond in different ways. Congress could still act. New challenges could arise. In the meantime, there is a safe harbor for small businesses to not have to collect sales tax under South Dakota's law. Other states that have enacted or proposed similar laws have the same or similar safe harbor. If all other states follow along, small retailers that are under those thresholds won't have to collect sales tax in every state.

A ‘Cliff Notes’ Version of the U.S. Supreme Court Wayfair Ruling

1. Quill is overturned; physical presence is not necessary to create substantial nexus

2. A business may be present in a state in a meaningful way without that presence being physical in a traditional sense

3. States will respond in different ways to utilize this NEW power (but it is NOT unlimited power)

4. This ruling applies to companies in any industry including service providers (NOT JUST ONLINE RETAILERS) – any company that has sales in a state, but hasn’t collected sales tax because they don't have a physical presence in the state

5. Protection may still apply to small businesses

6. South Dakota law is acceptable - substantial nexus is met with more than $100,000 in annual sales or 200 or more separate transactions; not retroactive; SD is member of SSUTA

7. Other states with laws similar to South Dakota will most likely be acceptable

8. Businesses can still challenge state laws under other Commerce Clause doctrines (i.e., if the state’s law causes an undue burden on interstate commerce)

9. Congress can still regulate interstate commerce

10. Approximately 20 states have economic nexus sales tax nexus provisions similar to South Dakota

11. Companies should respond diligently and cautiously.

Small Business Safe Harbor Should Be Challenged and Changed

There is a safe harbor for small businesses to not have to collect sales tax under South Dakota's law. Other states that have enacted or proposed similar laws have the same or similar safe harbor. If all other states follow along, small retailers that are under those thresholds won't have to collect sales tax in every state.

The 'de minimis' activity threshold is probably the remaining sticking point for each state to work with and could create further litigation. In my opinion, the 200 transaction threshold should be eliminated and states should simply rely on a revenue amount as a threshold. Small businesses need better protection especially since state laws are not uniform (complexity), and create an undue burden on interstate commerce for small businesses.

Challenges Remain

The case was remanded to South Dakota courts to determine if any further challenges to the law could be made. Stay tuned.

STATE TAX KNOWLEDGE UPDATE (59 ITEMS) - JUNE 11, 2018

The following are state tax and business developments I have curated since May 22nd, 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. California proposes to amend entity classification rules; comments due June 26

2. Delaware qui tam case against gift card retailers moves forward

3. Colorado Market-Based Sourcing Legislation Goes to Governor

4. California Launches Online Directory of Business Incentives

5. Tennessee Decouples From Business Interest Deduction Limit

6. Louisiana Governor Proposes Tax Cuts, Elimination of Deductions

7. Minnesota Governor Vetoes Omnibus Tax Legislation

8. Missouri Lawmakers Approve Corporate Rate Cut, Apportionment Changes

9. 2018 State Tax Amnesty Programs (as of 5 25 18)

10. California FTB holds interested parties meeting regarding significant proposed revisions to its market-based sourcing rules

11. The SALT Deduction Limit: The IRS Responds to State Workarounds

12. Online Travel Companies Are Not Liable for Local California Hotel Tax

13. Hawaii Use Tax Held Constitutional

14. TaxDay becomes official MLB Players Association partner

15. IRS Discusses Certain Payments Made in Exchange for State and Local Tax Credits

16. California FTB Provides TY 2017 Filing Guidance Regarding IRC Section 965 Repatriation Transition Tax

17. New Louisiana Law Revises Due Date for Filing Corporate Franchise Tax Returns

18. Maine Revenue Services Comments that Amended Returns May be Necessary Given State Nonconformity to Recent Federal Tax Law Changes

19. Michigan Appellate Court Affirms that Holding Company Lacks Requisite Nexus for City of Detroit Income Tax Purposes

20. New Jersey Appellate Court Affirms Lower Court Decision Involving Unreasonable Exception to CBT Intercompany Expense Addback Rule

21. New Tennessee Law Includes Delayed Decoupling from New Business Interest Limitations under IRC Sec. 163(j)

22. Hawaii State High Court Upholds Validity of Use Taxation Scheme on Purchases from Out-of-State Sellers

23. Washington DOR Advisory Explains that Retailer’s Enhanced Delivery Services May Create Nexus

24. Corporate Close-Up: No More Passing Through In Connecticut and New York?

25. Georgia Property Tax Appeal Thresholds Decreased

26. Delaware Creates Angel Investor Credit

27. Georgia Creates Additional High-Technology Exemption

28. Governor Signs Iowa Sales and Use, Excise Tax Reform Legislation

29. Iowa Enacts Major Income Tax Reform

30. Connecticut Enacts Pass-Through Entity Income Tax

31. Montana Adopts Pass-Through Entity Apportionment Rules

32. Connecticut enacts responses to federal tax reform

33. California FTB Now Permitting Taxpayers to Make Oral Presentations in Staff-Initiated Alternative Apportionment Proposals

34. Michigan Department of Treasury Issues New Bulletin on UBG Including Control and Relationship Tests

35. Pennsylvania DOR Issues Ruling on New Law that Imposes Information Reporting and Notice Requirements

36. New York Tax Appeals Tribunal Reverses ALJ to Hold that Taxpayer’s Transactions Must be Aggregated and Thus Subject to Tax

37. Enacted Kentucky Legislation Provides for Mandatory Combined Reporting for Unitary Businesses and Additional Sales Tax Changes

38. Alabama DOR Issues Guidance Regarding IRC Section 965 Deemed Repatriation Impact on Taxpayers

39. Iowa enacts significant income tax and sales tax changes

40. Legislative Session Review: Iowa

41. Oregon's research credit sunsets - Opportunities for 2017 tax year

42. Missouri reduces rate, adopts single factor and market sourcing, more

43. LINK TO IOWA TAX REFORM WEBSITE CREATED BY IOWA DOR

44. Iowa Governor Signs Tax Reform & Conformity Bill

45. Wayfair Debated at Georgetown SALT Conference

46. State Impacts of TCJA Analyzed at Georgetown Conference

47. Missouri Enacts Corporate Tax Rate Cut and Apportionment Changes

48. Sales Thresholds Trigger Sales Tax Nexus in Illinois

49. Michigan Updates Unitary Business Group Guidance

50. Colorado Enacts Market-Based Sourcing

51. Connecticut Explains Repatriation Transition Tax Reporting

52. New Colorado Law Imposes Market-Based Sourcing Provisions for Certain Receipts from Services and Intangibles

53. New Connecticut Law Makes Various Changes in Response to Federal 2017 Tax Act

54. Kentucky DOR Explains New Law that Includes Mandatory Unitary Combined Reporting Regime and Market-Based Sourcing

55. Michigan Department of Treasury Comments on Federal 2017 Tax Act

56. Montana DOR Issues New Regulations on the Apportionment and Allocation of Income Reported by Pass-Through Entities

57. New Illinois Law Imposes Remote Seller Tax Collection and Remittance Responsibilities via Economic Nexus Provisions

58. New Iowa Law Imposes Economic Nexus

59. Recent Idaho Law Amendments Provide Income Tax Rate Reductions and Amend IRC Conformity

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.

STATE TAX KNOWLEDGE UPDATE (59 ITEMS) - May 22, 2018

The following are state tax and business developments I have curated since May 2nd, 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. Wisconsin Explains Reconciliation with Federal Consolidated Returns

2. Preview of the share image State Sales Tax Shakeup

3. Indiana Offers Voluntary Disclosure Initiative for Out-of-State Retailers

4. Kentucky Requires IRC Sec. 199A Addback, Restores Credits

5. South Dakota Provides Guidance on Foreign Dividend Recapture

6. MTC Section 18 Alternative Apportionment Regulatory Project Moves Forward with Two Proposed Model Rules - Draft Model Use Tax Reporting Statute Also Advances

7. Alabama DOR Issues Guidance on IRC Sec 965 Transition Tax Impact on State Tax Returns

8. California FTB Moves Forward with New Draft Proposed Amendments to Market-Based Sourcing Regulation

9. Florida DOR Issues Guidance on IRC Sec 965 Transition Tax Impact on State Corporate Tax Returns

10. New Kentucky Law Imposes Mandatory Unitary Combined Reporting Regime

11. Ohio Supreme Court Holds in Taxpayer Favor Regarding Credit Computation for Pre-CAT NOLs

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

13. Growing Number of State Sales Tax Jurisdictions Makes South Dakota v. Wayfair That Much More Imperative

14. Oklahoma Allows Transition Tax Installment Payment Election

15. Tax Reform Task Force Names Income Tax Proposals for Further Study

16. California OTA Readopts Emergency Rules on Administration and Procedures of Appeals and Petitions for Rehearing

17. Focusing the Lens on Film Credits

18. Indiana DOR Offers Special Limited-Time VDI for Out-of-State Online Retailers with In-State Inventory

19. New Georgia Law Addresses Federal Partnership Audit Regime Changes and How to Report Adjustments for State Purposes

20. Taxpayer Asks US Supreme Court to Review 2017 Pennsylvania Supreme Court Ruling on NOL Carryovers

21. South Dakota DOR Discusses Federal Tax Law Changes Relating to Foreign Dividend Recapture and Potential Impact for State Bank Tax Purposes

22. Texas Comptroller Issues Franchise Tax Ruling on Whether Proceeds from Certain Hedging Transactions Are Included in Apportionment Factor

23. Alabama DOR Discusses New Law Requiring Certain Marketplace Facilitators to Collect and Remit Tax

24. New Georgia Law Requires Some Remote Sellers to Collect and Remit Tax or Else Adhere to Information Reporting Requirements

25. California FTB Issues Final Report on California’s Conformity to 2017 Federal Income Tax Changes

26. State and Local Tax Technology Checklist (Techlist)

27. TWIST - This Week in State Tax

28. Georgia Expands “Dealer,” Adds Use Tax Notice Requirement

29. Alabama Opens for Amnesty Applications on July 1

30. Connecticut Legislature Approves Pass-Through Entity Tax

31. Legislative Session Review: Georgia

32. California May 18 meeting on changes to market based sourcing rules

33. Connecticut Requires Bonus Depreciation, Sec. 179 Adjustments

34. IRC Conformity Bill Goes to Hawaii Governor

35. Indiana Special Session Considers IRC Conformity

36. North Carolina Proposes Income Tax Rate Changes

37. Legislative Session Review: Kansas

38. Indiana Enacts IRC Conformity Bill

39. Indiana Revises Corporate Income Tax Rate Calculation and Credit

40. Massachusetts Provides Estimated Tax Penalty Relief for IRC Sec. 965 Income

41. Oklahoma Creates New Credits for Vehicle Manufacturing Industry

42. “One Maryland” Credit Revised

43. Maryland Retains Personal Exemptions

44. Alabama DOR Reminds that 2018 Amnesty Program Begins July 1

45. Kentucky Claims Commission Amends Rules Related to Tax Appeals Procedures

46. Alabama DOR Issues Amended Rules on NOL Carryforwards and Revised Filing Due Dates

47. Updated Connecticut Administrative Guidance Discusses Treatment of IRC Sec 965 Federal Repatriation Transition Tax

48. New Indiana Law Updates State Conformity to IRC

49. Massachusetts DOR Issues Release on Estimated Tax Penalty Relief for Corporations Affected by Transition Tax on Deferred Foreign Earnings

50. New Oklahoma Law Permits Electing Federal Transition Tax Installment Payers to Elect Similar Payment Scheme for State Purposes

51. Pennsylvania DOR Announces that 2017 State Supreme Court Ruling on NOL Carryovers Will Not Be Applied to Earlier Years

52. City of Seattle Poised to Impose an Employee Hours Tax on Some Businesses

53. Alabama Tribunal Judge Denies DOR Motion to Stay in Online Retailer Legal Challenge of Economic Presence Rule for Out-of-State Sellers Making Threshold Sales into Alabama

54. New York eyes UBT in response to federal tax reform

55. Pennsylvania Clarifies Caps for NOL Calculations

56. California Requires Return Adjustments for Sec. 965 Amounts

57. Minnesota Legislature Passes IRC Conformity, Rate Reductions

58. Friday Tax Reform: States Issue Guidance, Waive Penalties for Foreign Income

59. Corporate Close-Up: Indiana Latest State to Respond to Federal Tax Reform

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.

What do you think are the top issues/topics in state taxation today?

1. State income tax reform/response to federal tax reform (which covers a wide variety of issues - depreciation, foreign income, dividends, charitable contributions, NOLs, Domestic Production Deduction, Sec. 199A, M&E, interest expenses, Sec. 118, related party expenses, deemed repatriation, like-kind exchange repeal, Sec. 179 expense, R&E expenses amortization)
2. Wayfair Supreme Court Case regarding sales tax nexus/collection obligations/possible overturn of Quill/physical presence
3. State taxation of foreign income
4. Market-based sourcing impact (continuing trend)
5. Alternative apportionment (is it all alternative?)
6. Management & utilization of NOLs / 382 NOL issues
7. Combined reporting vs. separate reporting 
8. Single-sales factor apportionment impacts (continuing trend)
9. Whether to utilize Voluntary Disclosure Agreement/Amnesty programs
10. Utilizing and negotiating credits and incentives
11. State income taxation of pass-through entities (new pass-through entity audit rules)
12. Related party expenses / transfer pricing
13. Private letter ruling requests
14. Other?????