Some things change and some things remain the same. Unfortunately, a lot of the time, the things we want to change, remain the same (and vice versa). Hence, what can we do about it? How can we change something, improve, and get the results we desire?
I read a book a few years ago that I want to encourage you to read as well. It is called, "The Compound Effect" by Darren Hardy. It is a great book about how small actions, small differences in behavior or small changes can make a big difference over time.
I'm sure most of us are aware of the compound effect when it comes to money, i.e., the earlier you start investing in your 401k, the bigger the "pot" in the future. Well, the same principle applies to any area of your life that you want to change, whether it is relationships, your fitness level, finances, career, etc.
Small changes made today and every day (completed with consistency) will produce big results at some point in the future. Consistency is the key. Hence, you have to have the perseverance and discipline to stick with the small change you are making on a daily basis so you see the result in the future. The biggest reason people don't get the results they desire is because they give up too soon.
How does this apply to state and local taxes? Well, small errors, or areas of neglect (such as nexus, apportionment, inter-company expenses, etc.) can add up over time. If no action is taken, an audit, a nexus questionnaire, etc. can arrive at your doorstep and the liability can be much greater than if action had been taken years earlier.
On the flip-side, if action is taken today (i.e., restructuring, voluntary disclosure agreements, planning, etc.) cash tax savings can be achieved not only for one tax year, but on an annual basis creating additional funds (or "nest-egg") to be used in your business.
The compound effect is a great principle. Just make sure that it is producing a "positive" effect for you and your business, instead of a "ticking time-bomb."
I leave you with this question from the book, "The Compound Effect:"
"If you were given a choice between taking $3 million in cash this very instant and a single penny that doubles in value every day for 31 days, which would you choose?"
Many States Facing Revenue Shortfalls
According to the Center on Budget and Policy Priorities (CBPP) and the National Association of State Budget Officers, in 2017, 25 states are facing or have addressed revenue shortfalls. More states expect mid-year revenue shortfalls than in any year since 2010.
This does not bode well for taxpayers as states will look for ways to solidify revenue either through more aggressive enforcement, or enacting new legislation that broadens the tax base, eliminates deductions, credits or exemptions, or raises rates.
The question remains - will federal tax reform increase state tax revenue?
COST: Retroactive Legislation and 2017 State Tax Amnesty Programs
I apologize for not writing more over the past couple of weeks, but I've been busy with client work. Regardless, I wanted to touch base and send you a link to a couple of items that you might find interesting.
First, COST (Council on State Taxation) has published an Op-Ed piece by Douglas Lindholm, the President and Executive Director of COST, regarding retroactive tax legislation.
Second, COST has also published a list of 2017 state tax amnesty programs. Always a useful tool. When it comes to amnesty, continue to weigh the cost/benefits between amnesty and voluntary disclosure agreements before choosing to move forward with an amnesty application.
California Proposes Eliminating Water's-Edge Election
California Senator Ricardo Lara has introduced SB 567 which would eliminate the water's-edge election for corporations who file California combined returns. Corporations would be required to file on a worldwide basis.
The bill would remove the water’s-edge election for taxable years beginning on or after January 1, 2017, and would specify that existing electors would be unable to elect to file using the water’s-edge method for taxable years beginning on or after January 1, 2023.
I have written on this subject before as to why states may not want to require worldwide reporting. The California Department of Finance believes water's-edge reporting is costing the state $2.3 billion in revenue currently. The problem with that figure is that it may not be accurate every year once worldwide reporting is the only option. Also, since the goal of federal tax reform is to encourage and increase investment in the United States, would requiring worldwide tax reporting lower tax revenue in California due to apportionment factor dilution?
M&A Activity Expected to be Strong For 2017
According to a KMPG, LLP survey, 84% of those surveyed expect to initiate a deal in 2017, 75% plan on doing multiple deals. Middle market deals are expected to dominate in 2017 and 78% say their deals would be worth less than $500 million. The most active industry is technology (45%).
Not all deals made it to completion in 2016. According to the KPMG survey, deal failures were most frequently caused by valuation disagreements, a bidding loss and issues revealed during due diligence (financial, operational and management).
Here is link to the KPMG survey.
Here is a link to a Middle Market M&A study put together by Citizens Commercial Banking.
Here is a link to a Forbes article on the 4 biggest trends in M&A for 2017.
Is your company considering restructuring its business? Perhaps creating new legal entities or re-aligning its lines of business into different entities? Changing the ownership structure of the legal entities within the commonly controlled affiliated group? Or maybe it is considering acquiring or merging with a new business (unrelated third-party)?
Regardless of your company's situation, in each of the above mentioned scenarios, your company must perform its due diligence prior to completing any transaction or restructuring. That due diligence should take into consideration the impact the restructuring or transaction will have on the business operations, legal obligations, insurance, finance, and tax, etc.
In regards to the tax implications, there can be significant tax ramifications on the transaction or restructuring itself. In addition to the federal tax impact, the state and local tax impact can be material and varied. Some of the potential state and local taxes to take into consideration are: income tax, gross receipts taxes, franchise taxes, sales and use taxes, property taxes and transfer taxes.
Usually the biggest concern in regards to the transaction from a state and local tax perspective are:
- Is there any sales tax on the sale or transfer of assets or change in ownership?
- Is there any transfer tax on the transfer of assets or change in ownership?
The answers to these questions depends on the state or states involved.
In addition to the above, the impact that the restructuring will have on the business' state tax nexus (taxable presence) position across the country should be reviewed and considered before making any changes.
So What?
If your company is currently considering any restructuring or acquisition, don't forget about performing state and local tax due diligence. If the transaction ends up costing the company a significant amount of state tax dollars now or in the future, you may be asked if these issues were considered or reviewed prior to completing the transaction.
Does your company have potential tax liability in multiple states?
Does your company have potential tax liability in multiple states?
Is your company looking for options to resolve?
The Multistate Voluntary Disclosure Program (“MVDP”) provides a way for a taxpayer with potential tax liability in multiple states (including the District of Columbia) to negotiate a settlement, using a uniform procedure coordinated through the National Nexus Program (“NNP”) staff of the Multistate Tax Commission (“Commission”).
For all of the details, go here.