2016 State Tax Amnesty Programs

The Council on State Taxation (COST) has released a chart reflecting state tax amnesty programs scheduled to occur in 2016. Here's the link.

If you are curious as to what states had amnesty programs in 2015, go here. 

Is amnesty the way forward? Does your company have past liabilities that need paid without paying penalties or interest? Should your company participate in a state's amnesty program or utilize the state's Voluntary Disclosure Program?

These questions plague companies when faced with identified compliance exposure and failures for multiple tax years. Some states offer one-time, short time-frame amnesty periods allowing companies to come forward, file prior year tax returns, and pay tax with the promise of future compliance. Depending on the specifics of the state's amnesty program, penalties and/or interest may be abated.

Key to remember: if your company has exposure and does not come forward, then the state may assess more significant penalties and interest when it finds your company later.

If you would like to read more about amnesty, check out my previous posts here.

Specifically, you may like: Amnesty and Voluntary Disclosure Agreements: What, When, Why?

Alabama Goes Rogue (but result could surprise you)

'I dare you. I double-dog dare you.' 

This is exactly what Alabama is saying with its new sales and use tax rule (No. 810-6-2-.90.03) which takes effect January 1, 2016. The new rule considers out-of-state sellers who lack an Alabama physical presence, but who have sold more than $250,000 in retail sales of tangible personal property in the previous calendar year and conducts certain activities, to have a substantial economic presence in Alabama for sales and use tax purposes. Consequently, the new rule requires the out-of-state sellers who meet the $250,000 and 'activities' threshold, to register for a license with the Department and to collect and remit tax. 

NOTE: The $250,000 threshold is not the only test. The out-of-state seller must also be conducting specific activities as referenced in the Rule. Please see the Rule for all of the details.

The new rule flies in the face of U.S. Supreme Court precedent (Quill Corp v. North Dakota, 504 U.S. 298 (1992)) which requires collection of sales and use tax by companies that have a physical presence in a state.

Many media articles have stated the Alabama Governor and Revenue Commissioner want a large online retailer (i.e., Amazon) to challenge the law and force the U.S. Supreme Court to take the case in the hopes the Court will rule in the state's favor.

Will Amazon make the challenge?

Should Amazon take the bait?

If Amazon does challenge it, there is probably a 50/50 chance of winning. If Amazon doesn't challenge it, Alabama wins and other states will consider enacting similar legislation.

But who does the law hurt? Amazon, maybe not. Amazon used to fight sales tax collection legislation, now it just builds large distribution centers (and collects sales tax) in states to provide faster service to clients and create stronger competition for brick and mortar stores. I can personally confirm that this strategy is working. This Christmas season, I definitely preferred to shop from the comfort of my living room, rather than combat the crowds and traffic at a store for items that may or may not be in stock. 

NOTE: Amazon is currently collecting sales tax in 26 states (Alabama is not one of them). 

If it doesn't hurt Amazon, then why should it challenge the law and incur the costly legal battle? Simply negotiate incentives to build a large distribution center in Alabama and reap the business benefits of crushing the brick and mortar competition. Perhaps this is exactly what Alabama wants. Perhaps Alabama doesn't care about collecting sales tax from every online retailer, only Amazon or similar companies. Perhaps it would be better for everyone if Amazon simply built distribution centers in every state - it definitely would provide better customer service, and states would receive increased sales tax revenue. If Amazon took this path, perhaps the national debate of taxing remote online retailers would go away.

Perhaps. 

pre-packaged state tax planning is dead, maybe

I hope everyone had a great Thanksgiving holiday week and adventurous Black Friday. Cyber Monday (or week) is upon us - we shall see if any great deals really exist.

As we approach Christmas, we are also approaching the end of another year which causes tax departments and accounting firms to review end of year tax planning options. Specific state tax planning can be done at any time during the year; however, I am curious as to what state tax planning your corporation and clients implemented this year. Was it an idea a consulting firm brought to you? Was it a restructuring idea built on the firm's application to other clients? Was it an idea based off of a court case, a ruling, or simply your company's unique fact pattern (i.e., apportionment, combined v. separate reporting, etc.)?

Legitimate Loopholes

I recently read an article entitled, "Nuances in State Constitutions Can Aid Taxpayers" by Jeff Day at Bloomberg BNA which included comments from Kenneth T. Zemsky, a managing director at Andersen Tax LLC. Mr. Zemsky's comments were taken from a presentation he made at the November 3, 2015 American Institute of Certified Public Accountants (AICPA) conference. If you have a subscription to Bloomberg BNA, I recommend you read it.

One comment that Mr. Zemsky made stood out to me - "legitimate loopholes" exist for many corporate taxpayers, but only customized planning will allow companies to take advantage of them." Custom planning for each client? I think this is something we all know, but Mr. Zemsky is correct. Public accounting firms are well-known for creating planning ideas that they package and utilize at numerous clients over and over. Albeit, the facts may be slightly different, but the idea being implemented is the same. This is not necessarily a bad thing, as the idea may have merit and application. In addition, most clients generally ask if the firm has implemented the idea at other companies. Clients want to know if the idea has been successful and withstood state challenges or audit. However, is this the best way to mitigate tax and risk? 

An article by Charles F. Barnwell, Jr. back in 2009 for Tax Analysts entitled,  "State Tax Planning - What's Left?" is a great article about the history of state tax planning and its current and future opportunities. The article discusses how the 'great' structural planning ideas of the 1990s (i.e., intangible holding companies, sales companies, purchasing companies, etc.) are no longer viable. According to Mr. Barnwell, planning ideas are now based on the 'nuts and bolts' of state taxes such as apportionment factor planning, industry-specific characteristics, and maximizing state offered incentives. Mr. Barnwell says, "the best offense may be a good defense" for companies that have "base-shifting type planning" still in tact." Mr. Barnwell is correct. Since 2009 (when the article was published), we have seen companies unwind previous tax planning to reduce exposure. We have also seen states win litigation against corporations and enact new 'guard rails' to limit state tax planning such as related party add-back provisions, combined reporting and discretionary transfer pricing analysis.

What is a legitimate loophole? If you read the Bloomberg BNA article by Jeff Day, it appears Mr. Zemsky believes legitimate loopholes are found by digging deeper into the state's law and procedures to identify clearly applicable opportunities for clients. This approach definitely makes sense, but how is this different from prepackaged planning? Once consultants identify a strategy or 'legitimate loophole' that works for one client, the next step is to see what other clients could also use the strategy? Thus, turning customized planning into a commodity? In other words, legitimate loopholes do exist. However, once found, they may become 'pre-packaged tax planning.'

Perhaps the question isn't whether the planning is customized or pre-packaged, the question is whether the idea is legitimate tax avoidance or something else (Mr. Zemsky describes this 'something else' as a "scam"). I addressed this question in an article I wrote for Tax Analysts back in 2013 entitled, "What Level of Tax Avoidance is Acceptable?" For details, go here.

This brings me back to the question - what tax planning have you recently implemented? What are you thinking of implementing? What questions are you asking before you take the position? What will the FAS 109 / FIN 48 impact be? Will tax return disclosures be required? Are you prepared for an audit? Will the firm be there to defend the position upon audit? Did the position create more risk than benefit?

For more posts on state tax planning in general and specific ideas, check these posts out.

Louisiana Suspends & Extends Amnesty Program

The Louisiana Department of Revenue announced this week that the state's Amnesty program will be suspended through Monday, November 30 and will resume on Tuesday, December 1. The program will then run until December 31, 2015, which accounts for designated and legal holidays.

During the amnesty period, individual and business taxpayers are offered a fresh start to bring their delinquent tax accounts up to date by clearing unpaid tax bills and filing overdue state tax returns.

Amnesty will be granted for eligible taxes to qualified taxpayers who apply during the amnesty period and who agree to settle their accounts with the state by paying 100 percent of delinquent taxes, 83 percent of the remaining interest and 67 percent of the remaining penalties due. Once approved, the Secretary of Revenue will waive the remaining 17 percent interest and 33 percent penalties.

The goal for the 2015 Tax Amnesty Program is $73 million, net of administrative costs and funds retained by LDR as self-generated revenue.

The 2015 Tax Amnesty Program is the third and final effort permitted by the Louisiana Tax Delinquency Amnesty Act of 2013. After the conclusion of the 2015 amnesty period, there will be no new amnesty program offered by the Department of Revenue until at least 2025.

Go here for more details.

why do states enact bad tax policy?

David Brunori, Deputy Publisher at Tax Analysts, recently wrote an article entitled, "More Than a Surrender When It Comes To Taxing Business." You can see his LinkedIn post with comments here. The article discusses how states let politics, and even taxpayers cause them to enact bad tax policy. 

I am a taxpayer advocate fighting the daily struggle for clarity, but this week I find myself feeling sympathetic to the states and their challenge of collecting revenue (I know, strange right). We operate in a grey and political world with many influences and interpretations. Sometimes taxpayers are right. Sometimes the states are right. The challenge is knowing the difference.

I agree that states (and the federal government) do not make wise fiscal decisions which leads to misuse of funds and the request for more. States have "created their own mess" in regards to tax cuts and other incentives for job creation. My point is, after doing this profession for 20+ years, I think we (as tax professionals) can get used to doing what we do and fighting for taxpayers, and we don't pause to see the perception from the other side. The people we deal with in the DORs are people operating within an extremely challenging bureaucracy (run by politics, bad policies) and face challenges of perhaps bad training, and the lack of resources (people and money). Bottom line, we need to work together to find reasonable and practical solutions. We don't need to talk "at" each other. We need to talk "with" each other.

I am for fair, reasonable and constitutional tax policy. Unfortunately, that isn't what we usually get. We get ambiguity open to interpretation, and law that favors in-state taxpayers.

What do you think causes states to enact bad tax policy?

Bloomberg BNA releases its 2015 state tax survey

Taxpayers are always trying to obtain certainty regarding their tax issues. Unfortunately, it is not possible to achieve 100% certainty when the facts are complex and the state's rules are grey. Consequently, the taxpayer and adviser generally review all binding authority (statutes, regulations, cases, etc.) and unbinding authority (informal guidance, etc.) to develop support for a tax position. This is why we have the lovely 'levels of assurance' such as the 'realistic possibility of success' (33%), 'substantial authority' (40%), or 'more likely than not' (> 50%).

Depending on the situation, taxpayers are commonly balancing risk and the amount of dollars to spend to chase down this elusive certainty.  Accordingly, taxpayers are trying to attain the most cost-effective and practical solution that reduces risk to an acceptable level. Thus, other factors (business, legal, financial) may determine how much effort is taken to support a specific tax position, resulting in some taxpayers choosing to default to paying more tax to avoid risk.

Bloomberg BNA released its 2015 Survey of State Tax Departments this week, which according to BBNA, clarifies each state’s position on the gray areas of corporate income tax and sales and use tax administration, with an emphasis on nexus policies. 

BBNA has added new sections addressing income and sales tax nexus for registration with state agencies, as well as sales tax nexus for drop shipment transactions. The survey also has a new focus on each state’s rules for sourcing sales factor receipts for income tax purposes. 

As I have stated in previous posts, surveys like this provide great insight into how a state will treat certain issues and fact patterns. The problem is that many answers provided by the state may not be based on actual statutes and regulations or court rulings. The answers may be based on internal policy or simply be an interpretation of a grey area (right or wrong). Regardless of the basis, the states' answers help a company formulate a conclusion.

You can download the report for FREE, just go here.