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

when state tax court decisions don't matter (Minnesota and memory lane)

I've been in Minnesota the past week or so, going down memory lane with my family. We lived in Minnesota for 7 years but haven't been back for 12 years. Lots of things have changed AND stayed the same.

I was going to write this edition about how you can't keep looking back (in the rear-view mirror) AND move forward in life at the same time. I was also going to mention that sometimes looking back can be a good thing - reminding you of good memories while also reminding you of why you left (i.e., cold, snow, cold - did I say cold?) - allowing you to move forward with clarity and focus.

The same can be said for state taxes. Albeit, with state taxes, companies are often living in the past, the present and the future AT THE SAME TIME. The past is made up of audits, notices, amended returns, refund claims, etc. The present is made up of compliance, current transactions, returns, etc. The future is made up of planning, restructuring, estimated payments, etc. It is difficult to simply focus on the present in the state tax world. The past can come back to bite you when you least expect it and the future can come too quickly (i.e., year-end planning or 12/31).

WHEN STATE TAX COURT DECISIONS DON'T MATTER

In the vein of the 'past coming back to bite you,' since I'm in Minnesota this week, it's only fitting that I mention this case, Cities Management, Inc. v. Commissioner, Minn., A23-0222, opinion 11/22/23.

In this case, the Minnesota Supreme Court held that a nonresident must treat their gain on the sale of their interest in a Minnesota company (S corporation) as business income and apportion the gain to Minnesota on its 2015 tax return. The nonresident shareholder couldn't treat the gain as nonbusiness income and allocate the gain to their home state.

• It is important to note that the nonresident and the buyer agreed to making a 338(h)(10) election. Consequently, the sale of S corporation stock would be treated as a sale of the S corporation's underlying assets for federal income tax purposes and the purchaser would obtain a stepped-up basis in the S corporation's assets.

The issue isn't so much as to the court's conclusion, but rather, more so to HOW the state and court arrived at their conclusion.

The nonresident had treated the gain on the sale of goodwill as nonbusiness allocable income on its Minnesota return pursuant to advise from their CPA who relied on the tax court’s interpretation of MN section 290.17 in Nadler v. Commissioner of Revenue, No. 7736 R, 2006 WL 1084260 (Minn. T.C. Apr. 21, 2006).

• In Nadler, the tax court determined that income generated by the sale of goodwill constituted “nonbusiness income” that was subject to allocation under subdivision 2(c) of section 290.17. Nadler, 2006 WL 1084260, at *7–8. Nadler was not appealed.

Following the tax court’s decision. Based on Nadler, the public accounting firm advised the nonresident shareholder and the S corporation (CMI) that gain on the portion of sale proceeds considered goodwill would be taxed under Minn. Stat. § 290.17, subd. 2(c). This provision directs that gain on the sale of goodwill “that is connected with a business operating all or partially in Minnesota is allocated to this state to the extent that the income from the business in the year preceding the year of sale was assignable to Minnesota under subdivision 3.”

Unbeknownst to the nonresident shareholder, CMI, or their accountants, the Department of Revenue had internally taken the position that it “d[id] not acquiesce” to the tax court’s decision in Nadler. Minn. Dep’t of Revenue, Technical Advice Memorandum (May 4, 2007). As early as 2007, the Department was circulating non-public internal technical advice memoranda and other documents in which it informed auditors that the Department would not follow the tax court’s reasoning in Nadler. The Commissioner did not make the Department’s disagreement with the tax court’s decision public until July 2017, when Revenue Notice 17-02 was issued. This notice “advise[d] non-resident individuals that the department does not administer the income allocation provisions in [section 290.17] using the Minnesota Tax Court’s reasoning in Nadler v. Commissioner, No. 7736 R, 2006 WL 1084260 (Minn. Tax Ct.).” Minn. Dep’t of Revenue Notice No. 17-02 (July 3, 2017).

In September 2018, following an audit of the CMI's income tax return, the Commissioner determined that CMI had applied the incorrect allocation rule in section 290.17 to income from the sale. Under the Commissioner’s view of the statute, that income was business income subject to apportionment and thus should not have been assigned under subdivision 2(c).

DO YOU SEE ANYTHING WRONG WITH THIS?

The taxpayer relied on a 2007 MN tax court ruling for a transaction it incurred in 2015. The state did not follow the 2007 ruling but didn’t tell the public until 2017. Then the state audited the taxpayer and made the assessment of additional tax based on its own internal interpretation in 2018.

Effectively, this case tells taxpayers that you can't rely on tax court decisions if the state disagrees even if the state never publicly tells you that it isn't going to follow the ruling. If the state tells you they disagree with the ruling after your file your return, then they can audit your return and issue additional tax even though you had no idea and were attempting to follow legal authority and got advice from your CPA.

What is your CPA supposed to do when they conduct research?

Are CPAs supposed to advise clients to take positions that are in the state's best interest despite having court decisions to the contrary?

Are taxpayers and CPAs supposed to assume that states disagree with tax court decisions and will not follow them?

What are taxpayers and CPAs supposed to do?

ATLEAST THERE IS DISSENT

Justice Anderson and Chief Justice Hudson of the MN Supreme Court dissented in the opinion.

Excerpts from their dissent are as follows:

• But the actions of the Commissioner of Revenue here—namely, the decision to disregard the tax court’s interpretation of a statute and adopt the Commissioner’s own interpretation without notice to the public—raise serious concerns about the fundamental fairness of the underlying audit that led to this appeal. The court recognizes the problematic conduct of the Commissioner, but because the court elects not to provide a remedy, I respectfully dissent.

• The court accurately sets out the undisputed facts here. Based on the tax court’s holding in Nadler v. Commissioner of Revenue, No. 7736 R, 2006 WL 1084260 (Minn. T.C. Apr. 21, 2006), the majority shareholder, Kim Carlson, along with the co-owner of Cities Management, Inc. (CMI) agreed to sell the business on certain terms and also relied on Nadler in characterizing income from the sale of the business in preparing and filing the 2015 tax return.

• At no point during any of these events were Carlson and her tax advisors aware that the Commissioner had rejected the tax court’s interpretation of section 290.17 in the Nadler opinion. As the record produced during discovery demonstrates, the Commissioner decided within a year of the tax court’s issuance of Nadler that the Department of Revenue would not accept the tax court’s interpretation of section 290.17. For instance, a technical advice memorandum dated May 4, 2007, noted that “the Department of Revenue decided not to appeal the Tax Court decision in Nadler v. Comm’r of Revenue . . . but does not acquiesce to that decision regarding the treatment of goodwill under Minn. Stat. § 290.17 in that case.” Other documents lay out the Department’s instructions to its employees to apply the Commissioner’s own interpretation of section 290.17 rather than the Nadler interpretation of the statute.

• But what is perhaps most troubling about this conduct is the Commissioner’s lack of transparency. For more than 10 years after the Nadler opinion was issued, the Commissioner did not make public the Department of Revenue’s position on the interpretation of section 290.17. Public notice of the Commissioner’s disagreement was not provided until July 2017 when the Department issued Revenue Notice 17-02. In this revenue notice, the Commissioner publicly advised taxpayers for the first time that “the department does not administer the income allocation provisions in [section 290.17] using the Minnesota Tax Court’s reasoning in Nadler v. Commissioner.” Minn. Dep’t of Revenue Notice No. 17-02 (July 3, 2017).

• This revenue notice was, of course, no use to CMI; the business was sold and the 2015 tax return was filed relying on Nadler before the Commissioner issued the revenue notice. The Department itself acknowledged the basic unfairness of this situation when CMI administratively appealed the audit. In removing the substantial understatement penalty initially assessed against CMI, the Department noted that CMI “reasonably relied on Nadler and the Department had issued no written guidance until 2017 (Revenue Notice 17-02) disputing the Nadler decision.”

• Given the outrageous conduct of the Commissioner, I would instead announce an equitable rule that the Commissioner is bound by tax court decisions that are not appealed unless the Department of Revenue provides public notice of its disagreement with the tax court opinion.

• It is vital that taxpayers “have trust and confidence that Minnesota’s tax system is fairly and equitably applied to all.” Mauer v. Comm’r of Revenue, 829 N.W.2d 59, 76 n.2 (Minn. 2013); see also State v. Melde, 725 N.W.2d 99, 102 (Minn. 2006) (“Essential to the guarantee of due process is fundamental fairness.”).

• But how are we to expect taxpayers to have confidence in a system in which the Commissioner ignores the tax court’s interpretation of tax statutes and unilaterally adopts the Commissioner’s preferred interpretation of the law—all without notice to the public?

• Simply put, taxpayers deserve some assurance that if they prepare their tax returns in reliance on the tax court’s interpretation of the law, the Commissioner cannot subsequently change the rules, or at least not without notice to the public. Applying this equitable rule to the circumstances before us, it is clear that the Commissioner is bound by the tax court’s interpretation of section 290.17 in Nadler.

• The tax court issued its opinion for Nadler in 2006, and although the Commissioner disagreed with the tax court’s interpretation of section 290.17, no appeal was taken. The Commissioner did not give public notice of disagreement with Nadler until 2017, when Revenue Notice 17-02 was issued. CMI filed the tax return underlying this appeal in 2016—before the Commissioner gave public notice.

• I conclude that the Commissioner is bound by the Nadler interpretation of section 290.17 for the purposes of this appeal. There is no dispute that CMI accurately applied the Nadler interpretation when it concluded that gain on the sale of goodwill was subject to taxation under Minn. Stat. § 290.17, subd. 2(c). Accordingly, I would reverse the decision of the tax court and remand for the tax court to vacate the Commissioner’s assessment.

THOUGHTS?

Let me know your thoughts. Comment below or direct message me via LinkedIn.

"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

knowing what questions to ask and how to move forward

Over 20 years ago I was introduced to Tony Robbins and his books. This week I started reading "Awaken The Giant Within" again. I actually started with the chapter entitled, "Questions Are The Answer." The idea or thought is that questions have the power to focus our attention and direct our path. Ask the wrong questions and you will go down the wrong path. Questions cause us to think about certain things (positive or negative) depending on the question. Questions not only cause us to drill down on a person, place, thing, etc. but questions also cause us to "delete" (as Tony says in the book) or not think about certain things or think about things in a certain way.

Tony says:

• "the difference between people is the difference in the questions they ask consistently."

• "Questions determine everything you do in life, from your abilities to your relationships to your income."

Quotes Tony put in the book:

• "Always the beautiful answer who asks a more beautiful question." - E.E. Cummings

• "Some men see things as they are, and say, 'Why?' I dream of things that never were, and say, 'Why not?'" - George Bernard Shaw

QUESTIONS AND ANSWERS IN STATE TAX

After reading that chapter, and I got immersed in work this week, I often thought about the questions and answers I get in my work.

State tax consultants are faced with unique fact patterns and grey tax law which causes us to have to ask the right questions to get the right answer or conclusions. If you never ask the right question you may not uncover a significant fact that could change the conclusion. If you don't know where to look (research) you may never find the regulation, statute, court case or ruling that would alter the position your client or company was going to take.

Positions that a company makes are not just words on paper, they are real dollars. This is important and not just business. It's personal.

The positions a company takes (or doesn't take) have a financial impact on a company. The positions can determine whether a company has the funds to make investments or even keep operating. So understanding and identifying the facts that matter and the legal authority to stand on is not only part of the job, it is the job.

• Ask the Right Questions = Get the Right Answers

• Knowing what to ask, what facts are important, where to look, how to search, filtering through the trees to find the path or the one tree to climb - that's what I call experience and judgment.

• Never giving up, looking at every angle, gaining new perspectives, thinking outside the box - that's what I call advocacy.

I call all of the above "leverage."

This week I've been working on several projects with unique fact patterns and grey tax law (as I'm sure you have as well). Each one causing me to do all of the above. But what do you do when do all of the above and you still have questions?

That's when you have to reach conclusions with certain levels of assurance AND still provide your clients with recommended courses of action. Those recommended action steps should seek to reduce risk and uncertainty and/or take positions that have a level of assurance that supports taking the position.

Some potential courses of action may be:

• taking the position and filing amended returns (refund claims)

• requesting a Private Letter Ruling (PLR)

• filing a Voluntary Disclosure Agreement (VDA)

• documenting the file with a technical memorandum and taking the position

These complex positions and decisions can arise out of the basic areas of state taxation such as:

• whether a company has nexus (a taxable presence) in a state.

• determining whether a state imposes sales tax on what a company is selling.

• how to source a company's sales by state for both income tax and sales tax purposes.

• determining if a specific election to file a return in a certain way should be made.

• And many more......

I've been in the tax profession for 28 years and all of the complexity and never-ending change has been part of the intrigue AND pain. It can be positive and negative. The answers you give clients can be positive and negative.

• Risk management is not the fun part of the job.

• Getting clients refunds = fun.

• Telling a client they need to file historical tax returns and pay a lot of money = not fun.

• Winning an audit protest and saving the client thousands of dollars = fun.

• Telling a company to pay historical tax and interest (even if you reduce the number of tax years and eliminate penalties) = not fun.

So there are fun and not so fun parts of the job. There are easy and difficult conversations to be had. Thus, knowing what questions to ask AND then knowing how to move forward after you get the answers - that is the key. That is the "LEVERAGE."

what the "salt"?

Back in the early days of my career and marriage (in Decatur, Illinois), my wife and I grabbed some lunch from a fast-food joint and drove down to the lake. It was a little chilly that day, so we just stayed in the car while we ate and looked out over the lake. The sun made it feel a little warm in the car, so we kept all of the windows slighly cracked open. It was a beautiful day until............

All of a sudden, we heard a "caw, caw" as a flock of birds were flying over and then........."woosh." The flock of birds had decided to drop a bomb on us all at once. The whole car was covered in (you guessed it) bird poo. It smelled so bad. It was everywhere. Oh yeah, did I mention, the windows were all slightly open? So some of the bird poo got in the car and we could definitely smell it really good.

We immediately rolled the windows up .Then drove (a long way) to the closest car wash we could find. All the while, waving at people as we drove down the road with my car covered in bird poo. Good times.

What's the point of this story?

How does this have anything to do with state taxes?

Well, just as in life, you could have a great plan for your business and think everything is going splendid. Things could be going smoothly, running like clock work and then, "bam." Surprise - here's an audit. A notice. Or you wait until you decide to sell the company and during the due diligence process you learn that your company has historical tax liabilities or exposure that the buyer wants you to clean-up or adjust the purchase price.

There are a lot of grey areas and uncertainties in state tax law that impact busineses of all sizes. Unfortunately, these uncertainties if unaddressed can creep up on you and drop a bomb when you least expect it.

HOW DO YOU ELIMINATE STATE TAX RISK?

There are proactive measures a company can take such as a nexus review, taxability review, performing reverse audits, etc. Then the company can make an informed decision as to the best methods to resolve or move forward.

The situation that complicates the risk analysis is when you know the position is going to be reviewed by a potential buyer of the company in the near future.

If undergoing due diligence, how do you prove to the buyer (and their accounting firm) that the risk does not exist?

What if the state's law and rulings do not provide concrete or consistent guidance?

Do you seek a private letter ruling request or simply document the position in a memorandum for the file and hope the buyer (and their accounting firm) under due diligence will remove the risk?

As an advisor to both sellers and buyers during due diligence, I am always an advocate for the party I am advising. I always support the company's positions with all available legal authority. Sometimes its clean-cut. Sometimes it's not.

However, even when there is substantial authority, if you can't get to "more likely than not," would you advise the buyer to conclude there is no risk? Would you advise the buyer to not hold money back in escrow or reduce the purchase price or insert some other protection into the agreement?

Despite a history of not filing based on a nontaxable position and the fact that the company has not received any contact (notices, assessments, etc.) from the state, will the buyer agree no risk exists?

Even if there is substantial authority, a buyer (and their accounting firm) may still disagree.

So is the company's best course of action to request a private letter ruling?

If the company wasn't considering a sale in the future, you may simply document the file and let "sleeping dogs lie." But since the company is considering a sale in the future and you don't want the issue to be a sticking point under due diligence, you may advise the company to pursue the ruling request.

The side benefit of pursuing a ruling request is that the company will gain some level of certainty even if the company never sells. I say "level of certainty" because a ruling is only as good as the facts presented and the law at the time of the ruling. If the facts aren't accurately communicated, the conclusion could be disputed.

Awww, the fun of state taxes.

QUOTES TO CONSIDER

"If you choose not to decide, you have still made a choice." - Geddy Lee

"The way we see the problem is the problem" - Stephen R. Covey

"Most see what is before them; the strategic leaders sense what is around the corner." - Kirby Martzall

"In the bullfight, the bull perceives the cape as the problem, but it is the sword that kills him. Are you chasing the cape or the sword?" - Mike Bell