what level of tax avoidance is permissible?

The following is an excerpt from my December 2, 2013 article in Tax Analysts State Tax Notes:

Here’s a multiple choice: the difference between tax avoidance and tax evasion is (a) whatever the IRS says, (b) a smart lawyer, (c) 10 years in prison, (d) all of the above. — Avery Tolar (Gene Hackman) in The Firm

According to the courts, tax avoidance is legal, but tax evasion is not. However, tax avoidance without business purpose or economic substance may be treated as a sham and disallowed. The history of state tax planning and two recent conflicting state decisions raise a question: What level of tax avoidance is acceptable?

Senate Finance Committee member Chuck Grassley, R-Iowa, once said that at the heart of every abusive tax shelter is a tax lawyer or accountant. That may be true, but what about legal tax planning and avoidance? Who, or what, is at the heart of tax avoidance? The answer to that may depend on the experience of the individual responding — whether he has worked for the government or has represented taxpayers against the government. Hence, we all decide whether tax avoidance should be allowed based on our own biases. For example, I have always worked as a taxpayer representative or advocate. Thus, I naturally lean toward the taxpayer’s point of view.

From the taxpayer’s side, I have experienced tax authorities abuse power, neglect the law, and use vague laws to raise revenue. States have imposed unconstitutional state taxes and pleaded bankruptcy when found guilty. On the other side, I have experienced taxpayers and advisers who analyze laws to the finite detail to wiggle around corners and yet stay within the boundaries of the law. As a result, both government and taxpayers can take advantage of the law, but who is right? What is acceptable? What came first — aggressive tax planning or overreaching and vague tax laws?

When Will Your State Make Tax Law Changes?

If you are looking for some insight into 'when' your state will make tax law changes in 2016, I have provided a link to Multistate Associates schedule of state legislative session dates, and a Map of Current Legislative Sessions.

Let me know if you have any questions or any insights into what changes your state may make. Some of the hot topics or possibilities seem to be a continuation of prior years, depending on what your state has enacted in the past:

1. Imposing nexus on remote retailers for sales tax collection purposes
2. Market-Based Sourcing for apportionment of services
3. Combined Reporting
4. Single-Sales Factor apportionment
5. Tax Haven legislation
6. Transfer Pricing 
7. Addback legislation for related party expenses
8. Sales taxation of services
9. Credits and Incentives

WE ARE WHAT WE ALLOW

"We are what we allow" - if you watch Grey's Anatomy, then you may know I got this quote from last week's show. When Dr. Grey made the comment, I was like 'yes,' we are what we allow. If we allow others to treat us small, then we will be small. If we allow others to define who we are and what we do, then we will become that version of ourselves.

We have a choice. We have a daily decision. Are we going to be what we want to be? Or will we allow others to decide who we will be and how they treat us?

In regards to working in the state tax profession, whether you work in a corporate tax department, the Big 4 or a small regional firm, people in your department or partners will try to define who you are. They will treat you a certain way. You need to decide if you are okay with how they are treating you. Are you who you want to be? Is how they are treating you interfering with who you want to become? Just say no. Stop it today. Decide for yourself.

In regards to state taxation, corporations can get ran over by auditors, by unconstitutional laws, by unreasonable compliance deadlines and notices. Will you sit by and let it go on? Or will you stand up? Will you fight? Will you take action? Will your company defend itself? Will your company lobby for better policy? Will you take your audit issues to appeals? 

We are what we allow.

Peace.

are states knowingly enacting unconstitutional tax laws?

States balance their budgets each year and use the revenue they receive to run programs. When laws are ruled unconstitutional and refunds are required to be paid, it puts a state in a tough position. Sometimes states enact new retroactive legislation to mitigate or eliminate the amount of refunds that would have been required to be paid out under the reversal of an unconstitutional law. 

Note:  I wrote my thesis on this very topic as part of my masters in taxation degree several years ago. However, the issue remains alive and well today.

When a state enacts legislation that later is found to be unconstitutional, what is the appropriate remedy?

• Prospective relief only?
• Retroactive refunds for all taxpayers for all years still open under statute?
• Retroactive refunds for only those taxpayers that have filed protective refund claims?
• Or better yet, should states be allowed to change the unconstitutional legislation/statute in such a way as to make it constitutional? If yes, should states be allowed to make that change retroactive to limit the amount of refunds they will have to pay to taxpayers who paid the tax in prior years (or filed protective refund claims)?

The answers to these questions have been played out in several states over the years. Unfortunately, a state is usually allowed to enact retroactive legislation and reduce the economic pain of paying refunds. 

State Budgets + Political Pressure = Unconstitutional Taxes and Fees?

When states are concerned about their budgets and face political pressures, governors and legislatures often enact, knowingly or unknowingly, unconstitutional state taxes or fees. When states need new revenue (without "raising taxes” or political “fall-out"), certain fees or taxes become attractive alternatives. However, those alternatives may be unconstitutional.

It seems not only unfair, but perhaps “illegal,” for states to collect taxes by enacting laws later to be found unconstitutional, and then refuse to give the money back to taxpayers. A state should not be allowed to profit from collecting taxes it should not have been allowed to collect in the first place.

The Current Problem

Currently, states are knowingly enacting or attempting to enact potentially unconstitutional sales tax collection laws on remote sellers (see Alabama). States are trying to overturn or 'drive around' the Quill Corp. v. North Dakota decision that requires retailers to have a physical presence in a state before the state can require the retailer to collect sales tax on its in-state sales. States are forcing taxpayers to challenge these laws with the hopes the U.S. Supreme Court will accept a case and overturn Quill.

The U.S. Court of Appeals for the Tenth Circuit recently ruled in Direct Mktg. Ass'n v. Brohl (DMA) that Quill did not apply to Colorado's sales tax reporting requirement since Colorado's law was not requiring sales tax collection. Even though the DMA decision did not fall under the application of Quill, Quill was referred to throughout the case. Consequently, if the taxpayer appeals the case, states are hoping the U.S. Supreme Court will take the case and somehow use it to overturn Quill.

The attempt to overturn Quill by enacting laws that are obviously overreaching at best, unconstitutional at worst, puts taxpayers in a difficult predicament. The options are (1) compliance, (2) comply and challenge, or (3) explicitly refuse to comply and challenge the law in court. All of these options are a win for the state and a loss for the taxpayer.

Questions Remain

1. Will Congress enact the Marketplace Fairness Act?
2. Will the U.S. Supreme Court accept a case challenging Quill? If it does, will it overturn Quill or reinforce it?
3. Will the states continue to aggressively skirt Quill regardless of the action or inaction by Congress or the U.S. Supreme Court?

Stay tuned.

Update: Nevada Commerce Tax

Nevada recently published a Commerce Tax Registration Process Informational Chart. It is a flow-chart that can help your corporation determine if they need to register.

If your corporation is organized or incorporated in Nevada, it will be registered automatically. All other corporations should make the determination based on answering a nexus questionnaire. 

At the end of March, beginning of April, corporations will receive a "Welcome to Commerce Tax" letter (how nice). The letter will have your corporation's Tax ID number on it. Go to the chart for additional details.

Also, check out Nevada's website or my previous posts on the Nevada Commerce Tax.

Is Your Auditor M.I.A.?

Where is the auditor? I haven't heard from him or her in a while.

Should I call them? Or should I just wait it out, and see if they contact me again?

Have you ever asked yourself those questions?

Some taxpayers have an audit begin where the auditors come to their place of business, ask questions, review records, and then leave. When the auditors leave, they say they will let the taxpayer know if additional information is needed or if they have any questions.

Then, months go by without any contact from the auditor.

But wait, three weeks before the statute of limitations is about to expire on one of the tax years within the audit period, the state contacts the taxpayer and asks the taxpayer to sign a waiver of the statute of limitations, usually a year extension (you should attempt to negotiate a smaller extension; some states have a minimum of 6 months).

After the extension is signed, the taxpayer may receive another information request or list of questions from the auditor, with a short timeline or due date for the taxpayer to respond. After the taxpayer responds, another 6 months go by without any contact from the auditor.

Then, once again, one month before the statute of limitations is about to expire, the taxpayer receives a preliminary audit assessment. This time the state won't extend the statute, and the taxpayer has less than a month to dispute the audit assessment's findings before a final assessment is received.

QUESTIONS
If your auditor goes M.I.A. in the middle of an audit, what should you do?

Should you just play the "wait and see game"? Or should you contact the auditor sooner to find out what the status is?

If you contact the auditor sooner, you may or may not receive a response earlier? It really could go either way.

The same is true if you don't contact the auditor. You could get "lucky" and the statute of limitations could expire without receiving an assessment. On the other hand, you could receive an audit assessment with a short amount of time to respond.

What do you think? Have you experienced this?