Tax Highlights of Proposed Illinois “Grand Bargain”

In an effort to resolve Illinois’ 20-month budget impasse, the Illinois Senate leadership (Senate Majority Leader John Cullerton and Senate Minority Leader Christine Rodogno) have jointly proposed a series of bills to increase revenue, reduce spending, and respond to the Illinois Governor’s concerns regarding pension reforms, workers compensation reform and property tax relief.  A series of twelve bills have been introduced, all of which are interlinked for passage.  The bills are termed the Illinois “Grand Bargain.”  Most of the tax-related changes are found in Senate Bill 9.  The current version of the Senate Bill 9 (Amendment 3) (“Bill”) was submitted on March 3 and includes the following proposed changes: Continue Reading

Another Effort at False Claims Act Reform: Bills Introduced to Amend Illinois Act to Restrict Tax-Related Claims

Illinois Legislators have recently introduced three bills that would amend the Illinois False Claims Act (“Act”) to restrict the ability to bring tax-related claims. Senate Bill 9, the proposed “grand bargain” to resolve Illinois’ budget stalemate, includes language that would eliminate the ability to use the Act to bring tax claims.  In addition, Representative Frank Wheeler and Senator Pam Althoff have introduced House Bill 1814 and Senate Bill 1250, respectively, which are identical pieces of legislation that would significantly restrict a private citizen’s right to bring tax-related claims.

Senate Bill 9, if adopted in its current form, would eliminate the ability to bring a tax-related claim under the Act.  Currently, the Act only excludes the right to bring income tax-related claims. 740 ILCS 175/3(c).  This would effectively conform the Act to the federal False Claims Act, which does not extend to tax claims.  Rather, tax-related claims are brought before the Internal Revenue Service’s Whistleblower Office as whistleblower claims.

House Bill 1814 and Senate Bill 1250 (“Bills 1814/1250”) preserve the right to bring tax claims under the Act, and they maintain the prohibition against income tax claims.  However, in a significant improvement over current practice, the Bills would amend the Act to restrict the ability of a whistleblower or its counsel to control or profit from the filing of tax claims.  In addition, they enhance the role played by the Department of Revenue (“Department”) in determining whether a whistleblower’s tax claim should be pursued.  Effectively, the Bills make the filing of state tax-related whistleblower claims more like the procedure for bringing a federal tax violation before the IRS.

Currently, the Act authorizes private citizens, termed “relators,” to initiate litigation to force payment of tax allegedly owed to the State.  740 ILCS 175/4(b).  Hundreds of such claims have been filed in Illinois by whistleblowers claiming a failure to collect and remit sales tax on internet sales.  Relators file a complaint under seal with the circuit court and serve the complaint on the State.  Id. 175/4(b)(2).  The Illinois Attorney General’s office then has the opportunity to review the allegations and decide whether to intervene in the litigation.  Id. 175/4(b)(2), (3).  The Department is not named as a Defendant and there is no requirement to involve the Department in the litigation.  If the Attorney General declines to proceed with the litigation, the relator may proceed with the lawsuit on its own and, if successful, is entitled to an award of 25 percent to 30 percent of the proceeds or settlement of the action, plus its attorneys’ fees and costs.  Id. 175/4(d)(2).  Even if the State intervenes and proceeds with the litigation, eliminating the relator’s day-to-day involvement, the relator is entitled to an award of 15 percent to 25 percent of the proceeds of settlement, plus attorneys’ fees and costs.  Id. 175/4(d)(1).

In contrast, Bills 1814/1250 provide that only the Attorney General (“AG”) and the Department have the right to initiate claims under the Act for taxes administered by the Department.  Whistleblowers are required to report an alleged tax violation to the Department.  The Department must investigate the allegations and make a recommendation to the AG as to whether or not the AG should file suit based on the allegations.  Bills 1814/1250, 740 ILCS 175/4.5(b).  The AG can accept or reject the Department’s recommendation.  It can also bring suit in the absence of a Department recommendation.  Id.  If the AG initiates litigation based on a whistleblower’s allegations, the whistleblower is entitled to an award of 15 percent to 30 percent of the collected proceeds of the action and “related actions” or settlement, but no attorneys’ fees.  Id., 740 ILCS 175/4.5(d).  The whistleblower has no ability to proceed with litigation on its own if the Department or AG find the litigation unworthy.  These changes would significantly reduce the ability of a whistleblower or its counsel to profit from the filing of nuisance value claims.

Bills 1814/1250 also provide that the Department has discretion to initiate an audit based on a whistleblower’s allegations and affirm that the audited entity has all the rights available to any other taxpayer to dispute any additional assessment of tax, interest and/or penalty charges.  Id., 740 ILCS 175/4.5(c).  Whistleblowers may not participate in or challenge the Department’s audit determination.  If the Department initiates an administrative action based on a whistleblower’s allegations, the whistleblower is entitled to an award of 10 percent to 15 percent of the collected proceeds of the action or settlement.  Id., 740 ILCS 175/4.5(d).

Bills 1814/1250 also provide the much-needed ability to reduce the percentage award to a whistleblower under certain circumstances.  First, the Department has the discretion to reduce the percentage award to a whistleblower to 10 percent of the proceeds or settlement if it determines that the action (administrative or judicial) against a taxpayer is based primarily on disclosures from other sources.  Id., 740 ILCS 175/4.5(e).  (This provision is in the present version of the Act, but is a right afforded to the AG, not the Department.)  In addition, the Department has discretion to reduce the whistleblower’s award without limitation if it determines the whistleblower planned and initiated the violation of the Act.  Id., 740 ILCS 175/4.5(f).  The latter change should significantly reduce the ability of whistleblowers to profit from the repetitive filing of tax claims based on transactions initiated by the whistleblower.

Bills 1814/1250 also would reduce the burden on the Circuit Courts with respect to these claims by requiring a whistleblower to file its claim with the Department, rather than the Court in the first instance, and by providing that Department award determinations are appealable exclusively to the Court of Claims.  Id., 740 ILCS 175/4.5(g), 705 ILCS 505/8(j).

This is not the first time bills have been introduced to amend the Act.  Similar efforts over the past several years have been stymied when the legislature failed to consider the bills in Committee hearings. Hopefully, the Illinois General Assembly will take action to enact one of these much-needed legislative changes this year.

Unclaimed Property Gift Card Legislation to Watch

Most states are well off to the races with their 2017 legislative sessions and several states have gift card legislation pending that would impact unclaimed property holders.

Oregon

On January 9, 2017, a bill (SB 113) was introduced in the Senate that would create a new unclaimed property reporting obligation for gift cards, which would apply to gift cards issued or sold after the effective date of the bill.

SB 113 would accomplish this by amending the state consumer protection law to provide that a cardholder may only redeem a gift card from “[t]he person that a gift card identifies as providing goods or services” and such person “shall transfer to the Department of State Lands, in accordance with [the Uniform Disposition of Unclaimed Property Act], any remaining balance from a gift card that a cardholder has not used within five years after the date of the last transaction that used the gift card for a purchase.” Keeping consistent with the changes above, the bill would also amend the definition of “gift card” to strike the current reference to “issuer” and replace it with the “person identified in the record as providing goods or services in exchange for displaying or surrendering the record.” Finally, the bill provides that “[a] transfer under this paragraph renders the promise to provide goods or services of which the gift card is evidence void and the cardholder may not redeem the remaining balance on the gift card for cash, goods or services after the date of the transfer.”

The bill was referred to the Senate Committee on General Government and Accountability, where the sponsor (Senator Chuck Riley) sits as chair.

Practice Note

The prospect of gift cards becoming reportable prospectively in Oregon is troubling in itself, but the bill would go a step further and redefine who is the issuer in the gift card context by specifying that the retailer or other entity identified on the record as providing goods or services is the issuer and has the remittance obligation—not a third-party issuer (which many retailers currently use and most have historically understood to have the reporting obligation for unredeemed gift cards in states without an exemption). The bill leaves room for the Department of State Lands to establish an expedited process for transferring gift card balances by regulation, but it would still be the onus of the retailer to provide the unredeemed balances and would diminish the benefit of having a third-party gift card processor under Oregon law.

New Hampshire

On January 5, 2017, a bill (HB 473) was introduced in the House that would revise the definition of “gift certificate” by (1) removing the existing requirement that the promise be written; and (2) increasing the face value based exemption from $100 to $250. The bill also would increase the face value of a gift certificate that may have an expiration date under the state consumer protection law to $250. As introduced, these changes would take effect January 1, 2018.

HB 473 was referred to the House Commerce and Consumer Affairs Committee on January 17, 2017, and a public hearing was held January 25, 2017. The bill was not advanced out of committee, and several subcommittee work sessions have been scheduled since then.

Practice Note

Issuers of gift certificates with a face value of $250 or less (but over $100) should keep a close eye on HB 473, as it would exempt these gift certificates from a presumption of abandonment. While this is good for gift certificate issuers, removing the requirement that a gift certificate be “written” would likely expand the scope of “gift certificates” subject to the unclaimed property law to include electronic and virtual gift cards and gift certificates. The subcommittee work session may provide an opportunity for the drafters to clarify the intent of the bill. Stay tuned.

New York State FY 2018 Budget Bill: Sales Tax Highlights

On January 16, Governor Cuomo introduced the 2018 New York State Executive Budget Legislation. The bill proposes a number of changes to the New York State sales tax law. Below is a summary of the highlights.

Sales and Use Tax

  • “Marketplace Providers”

The governor’s bill proposes to impose sales tax registration and collection requirements, traditionally imposed on vendors, on “marketplace providers.” This provision is essentially an effort to obtain sales tax on sales to New York customers that make purchases over the internet from companies that have no physical presence in New York and do not collect sales tax in New York when those companies make sales through online marketplaces. In the governor’s Memorandum of Support of this bill, he affirmatively states that “the bill does not expand the rules concerning sales tax nexus”. Although, as noted below, this claim may not be true.

The bill effectively shifts the sales tax collection burden from the traditional vendor to the marketplace provider. The bill defines marketplace provider as “a person who, pursuant to an agreement with a marketplace seller, facilitates sales of tangible personal property by such marketplace seller or sellers.”

A person “facilitates a sale of tangible personal property” if the person meets both of the following conditions:

(i) such person  provides the  forum  by which the sale takes place, including a shop, store, or booth, an  internet  website,  a catalog,  or  a similar  forum;  and

(ii) such person or an affiliate of such person collects the receipts paid by a customer  to  a marketplace  seller  for  a  sale  of  tangible  personal  property.

The bill caveats that “a person who facilitates sales exclusively by means of the internet is not a marketplace provider for a sales tax quarter when such person can show that it has facilitated less than one hundred million dollars of sales annually for every calendar year after [2015].”

Unlike the definition of the term “vendor” in the current Tax Law, the definition of “marketplace provider” does not contain a doing business or physical presence component. Accordingly, despite the governor’s assertion that the bill does not expand the rules concerning sales tax nexus, this provision may expand the sales tax nexus rules by potentially imposing a sales tax collection obligation on marketplace providers that do not have a physical presence in New York.

In an effort to minimize the number of entities with a collection requirement, the bill provides that if a marketplace seller obtains a certificate of collection from the marketplace provider, it is not required to collect sales tax as a vendor.  The bill caveats that if the marketplace provider and the marketplace seller are affiliated parties, and the marketplace provider fails to collect the tax, the marketplace seller will remain liable for the sales tax.  For such purposes, parties are affiliated if they have as little as five percent of common ownership.

The proposed legislation would not permit marketplace sellers that sell to customers in New York through a marketplace provider to collect the sales tax themselves. One suggestion is to include a provision that allows marketplace sellers to collect the tax based on an agreement with the marketplace provider.

The bill provides some protection for marketplace providers if their failure to collect the correct amount of tax is due to incorrect information given to the provider by the marketplace seller.  Again, affiliated parties would not get this protection.

The bill proposes that the act take effect on September 1, 2017 and apply prospectively.

  • Related Entity Sales Tax Issues

The governor’s bill proposes amendments to the resale exclusion in an effort to stop companies from purchasing high-dollar-value property for resale to their affiliates, then leasing the property using a long-term lease or for a small fraction of the property’s fair market value thereby avoiding much of the sales tax on the transaction.

The governor’s bill proposes to solve the problem by eliminating the resale exclusion for (1) sales to a single member LLC or subsidiary that is disregarded for federal tax purposes for resale to its owner or parent company; (2) sales to a partnership for resale to one or more of its partners; and (3) sales to a trustee of a trust for resale to one or more of the beneficiaries of the trust.

This provision is broader than necessary to accomplish its goal since the provision also eliminates the resale exclusion for arms-length, good-faith transactions between related entities, thus potentially subjecting certain transactions to double taxation–once when the property is sold to the single member LLC, for example, and again when it is resold by the LLC to its owner.

The bill proposes that this section take effect immediately.

  • Use Tax Exemption for Nonresidents

In response to the New York State Division of Taxation’s and the Attorney General’s recent focus on sales and use tax issues involving the sale of artwork, the governor’s bill proposes to provide an exception to the use tax exemption for the use of property or services in New York purchased by the user while the user was a nonresident. The governor’s goal is to prevent New York residents from creating foreign entities to purchase property (usually artwork) outside of New York and subsequently bringing the property into New York and avoiding the use tax.

The bill provides that the use tax exemption for nonresidents will not apply if the nonresident business has not been doing business outside the state for at least six months prior to the date that such nonresident brought the property or service into New York. This provision does not apply to individual nonresidents.

Again, this provision may be broader than necessary to “catch” those avoiding tax using the use tax exemption. This provision may impact businesses acting in good-faith without a tax avoidance scheme. A better idea may be to provide that a nonresident company will lose the use tax exemption if the company has no valid business purpose and was created solely to avoid tax.

The bill proposes that this section take effect immediately.

  • Transportation, Transmission or Distribution of Gas or Electric

The governor’s bill also proposes the making of a technical change to NY Tax Law § 1105-C to clarify that sales tax is imposed on charges for transporting, transmitting, or delivering gas or electricity when the company providing the transportation, transmission, or distribution is also the provider of the commodity. This amendment is intended only to clarify the existing law.

The bill proposes that this section take effect immediately.

Breaking News: Unclaimed Property Legislation Passes Delaware General Assembly

On January 26, 2017, the Delaware House approved comprehensive unclaimed property rewrite legislation (SB 13) that was passed by the Senate (with committee amendments) last week.  Our summary of many of the key provisions of the bill (as introduced) is available here.  Because the amended version of SB 13 has now passed both chambers of the General Assembly, it will be sent to Governor John C. Carney Jr. for signature, and will become effective immediately upon his approval.  Rumors are circling that follow-up legislation is likely, and may be considered this session.

Senate Amendment

The Senate Amendment adopted by both chambers made relatively minor changes to the introduced legislation.

First, it struck all references to and the definition of “net card value” that was used to determine the amount presumed abandoned in the stored-value and gift card context.  As passed today, “the amount unclaimed is amount representing the maximum cost to the issuer of the merchandise, goods, or services represented by the card.”  The 5 year dormancy period tied to “the later of the date of purchase, the addition of funds to the stored-value card or gift card, a verification of the balance by the owner, or the last indication of interest in the property” was not changed.

Second, the amendment struck all references to and the definition of “virtual currency.”  This is significant because the introduced version of the legislation expressly included an expansive definition of virtual currency in the definition of “property” subject to escheat.  While the inclusion of virtual currency in the definition of “property” is consistent with the approach taken in the Revised Uniform Unclaimed Property Act (RUUPA) adopted by the Uniform Law Commission (ULC) last year, the introduced Delaware legislation definition of “virtual currency” omitted two exclusions (the software or protocols governing the transfer of the digital representation of value and game-related digital content) contained in the RUUPA definition that were included after careful consideration to limit the potentially vast scope.  By removing virtual currency entirely from the Delaware legislation, it will not be presumed to be property subject to escheat.

Third, the Senate Amendment changes the timeframe that holders currently under audit have to submit a written application to participate in the Secretary of State VDA program or expedited audit process.  As introduced, the Delaware legislation would have required these decisions to be made by July 1, 2017.  As amended (and passed), this period would be extended to within 60 days from the date of the adoption of regulations pertaining to the methods of estimation used.

Practice Note

With the passage of this legislation, there is a lot for holders to consider.  In particular, holders with an on-going audit will need to make the decision whether to: (1) make an election to join the Secretary of State VDA program; (2) expedite the audit; or (3) continue as-is.  With new penalties and mandatory interest enacted as part of the legislation, securing waiver of penalties and interest should be a top priority and could result in significant savings.  This must be balanced with the holder’s ability to timely comply with document request (required by expedited audit) and desire to appeal the final determination (prohibited for VDA program participants).  Holders under audit should begin these important discussions now, as Delaware is expected to act quickly in preparing the estimation regulations that are tied to the holders decision deadline.

Illinois Supreme Court Holds City of Chicago Went Too Far in Taxing Cars Rented Outside Its Borders

The Illinois Supreme Court, in Hertz Corp v. City of Chicago, 2017 IL 119945 (Jan. 20, 2017) , held that the City of Chicago’s ruling requiring rental car companies located within three miles of the City to collect tax on vehicle rentals is unconstitutional under the home rule article of the Illinois Constitution. Hopefully, the court’s ruling will stymie the City’s expansive interpretation of its taxing powers.

The tax at issue is the City’s Personal Property Lease Transaction Tax (Lease Tax), which is imposed upon “(1) the lease or rental in the city of personal property or (2) the privilege of using in the city personal property that is leased or rented outside of the city.” Mun. Code of Chi. § 3-32-030(A). While the Lease Tax is imposed upon and must be paid by the lessee, the lessor is obligated to collect it at the time the lessee makes a lease payment and remit it to the City. Mun. Code of Chi. §§ 3-32-030(A), 3-32-070(A).

The subject of this litigation is the City’s application of the Tax in its Personal Property Lease Transaction Tax Second Amended Ruling No. 11 (eff. May 1, 2011) (Ruling 11). The plaintiffs argued that Ruling 11 extends the reach of the tax ordinance beyond Chicago’s borders in violation of the home rule provision of the Illinois Constitution and violates the federal due process and commerce clauses. The Ruling “concerns [short-term] vehicle rentals to Chicago residents, on or after July 1, 2011, from suburban locations within 3 miles of Chicago’s border … [excluding locations within O’Hare International Airport] by motor vehicle rental companies doing business in the City.” Ruling 11 § 1.  The Ruling explains that “‘doing business’ in the City includes, for example, having a location in the City or regularly renting vehicles that are used in the City, such that the company is subject to audit by the [City of Chicago Department of Finance] under state and federal law.” Ruling 11 § 3. As for taxability of leased property, the Ruling cites the primary use exemption, exempting from Tax “[t]he use in the city of personal property leased or rented outside the city if the property is primarily used (more than 50 percent) outside the city” and stating the taxpayer or tax collector has the burden of proving where the use occurs.  Ruling 11 § 2(c) (quoting Mun. Code of Chi. § 3-32-050(A)(1)).

Ruling 11 contains a rebuttable presumption that motor vehicles rented to customers who are Chicago residents from the suburban locations of rental companies that are otherwise doing business in Chicago are subject to the Lease Tax. The Ruling applies to companies with suburban addresses located within three miles of the City. The presumption may be rebutted by any writing disputing the conclusion that the vehicle is used more than 50 percent of the time in the City. The opposite is assumed for non-Chicago residents. Ruling 11 § 3. The Ruling provides that such a writing can be as simple as a customer’s initialing a statement that the vehicle will be used more than 50 percent outside the City (Ruling 11 § 3), but it must be part of the lease agreement or otherwise kept in the company’s business records. Companies that do not wish to comply with the record keeping requirements may opt to pay tax on 25 percent of its rental charges from Chicago customers.

Plaintiffs Hertz Corporation and Enterprise Leasing Company of Chicago LLC, filed separate actions against the City seeking declaratory and injunctive relief from the application of Ruling 11. The cases proceeded in tandem in circuit court and the court granted summary judgment to the companies. The circuit court declared Ruling 11 facially unconstitutional and permanently enjoined the City from enforcing the ordinance with respect to vehicle rental transactions occurring outside the City. The appellate court reversed and held that there is a sufficient nexus between the plaintiffs and the taxable activity (the use of the cars in the City) to permit the tax to be imposed and collection duties placed on plaintiffs. The Supreme Court granted leave to appeal and allowed the Illinois Chamber of Commerce and the Taxpayers’ Federation of Illinois to file amicus briefs on behalf of the car rental companies.

The Supreme Court held that the imposition of the Lease Tax on rentals of cars taking place outside the City limits has an extraterritorial effect and is therefore an improper exercise of the City’s home rule powers. The court was seemingly troubled by the fact that the Lease Tax is imposed not on the actual use within the City’s borders but on the lessee’s stated intent to use the property in Chicago or, failing any statement of intent, on presumed used based on the lessee’s home address. The court noted that at the time of the lease transactions, the use of the vehicle has not yet taken place and may, in fact, never take place within Chicago’s borders. The court said that “unrestrained extraterritorial exercise of home rule powers in zoning, taxation, and other areas could create serious problems, given the number of home rule units in Illinois, particularly in the Chicago area.” 2017 IL 119945 at ¶ 30.  Thus, the court held that Ruling 11 exceeds the scope of the City’s home rule authority. In light of its holding that the ruling violates the Illinois Constitution, the court did not address the plaintiffs’ arguments that it also violates the federal due process and commerce clauses.

Hopefully, the court’s ruling will invite further challenges to the City’s expansive imposition of the Lease Tax. The City’s recent extension of the Lease Tax to cloud computing in Lease Tax Ruling #12 is now particularly susceptible to challenge given that the providers of those services are often located outside Chicago’s borders.

NCSL Task Force on SALT Meets in Anticipation of Active Legislative Sessions

On Saturday, January 14, the National Conference of State Legislatures (NCSL) Task Force on State and Local Taxation (Task Force) met in Scottsdale, Arizona to discuss many of the key legislative issues that are likely to be considered by states in 2017. The Task Force consists of state legislators and staff from 33 states and serves as an open forum to discuss tax policy issues and trends with legislators and staff from other states, tax practitioners and industry representatives.

Below is a short summary of the key sessions and takeaways from the first Task Force meeting of 2017. PowerPoints from all sessions are available on the Task Force website.

Nexus Expansion Legislation Expected to Continue

With lawsuits pending in South Dakota and Alabama over actions taken by states in 2016, MultiState Associate’s Joe Crosby provided an overview of 2016 nexus expansion legislation (as well as legislation introduced thus far in 2017), with NCSL’s Max Behlke pointing out that he expects a lot of states to act on this trend this year.

In particular, it was pointed out that the US Supreme Court’s denial of cert in DMA v. Brohl (upholding the decision of the 10th Circuit) should give states confidence about their ability to constitutionally adopt similar notice and reporting laws. Last month, Alabama Revenue Commissioner Julie Magee publicly stated that Alabama plans to introduce notice and reporting legislation similar to Colorado, along with at least two other states.

Economic nexus laws directly challenging Quill, similar to South Dakota SB 106 passed last year, are also expected to be prevalent in 2017—with five states (Mississippi, Nebraska, New Mexico, Utah and Wyoming) already introducing bills or formal bill requests that include an economic nexus threshold for sales and use tax purposes. Notably, the Wyoming bill (HB 19) has already advanced through the House Revenue Committee and its first reading by the Committee of the Whole and is expected to receive a final vote in the House this week. The Nebraska bill (LB 44) takes a unique approach in that it would impose Colorado-style notice and reporting requirements on remote sellers that refuse to comply with the economic nexus standard.

Behlke pointed out that he doesn’t see Congress acting on the remote sales tax issue in early 2017 due to other priorities—including federal tax reform. With a final resolution of the kill-Quill efforts by the US Supreme Court most likely not possible until late 2017 (or later), state legislatures are likely to feel the need to take matters into their own hands. From an industry perspective, this presents a host of compliance concerns and requires companies currently not collecting based on Quill to closely monitor state legislation. This is especially true given the fact that many of the bills take effect immediately upon adoption.

Continue Reading

Breaking News: Delaware Unclaimed Property Legislation – Lipstick on a Pig?

The Delaware General Assembly has introduced legislation that would significantly rewrite the Delaware unclaimed property statute by repealing the three current subchapters and replacing them with a single unclaimed property subchapter. This article highlights key proposed changes in the bill.

Read the full article.

California FTB Schedules Interested Parties Meeting on Short Notice to Discuss Issues in the Regulations on Sourcing Income from Services and Intangibles

The California Franchise Tax Board has scheduled an Interested Parties Meeting to discuss proposed changes to its apportionment regulations. Several years ago, when the statute called for sourcing receipts from services and intangibles at the location of income producing activity, based on cost of performance, the FTB, after a series on interested parties meetings, adopted new regulation 25137-14 sourcing receipts for mutual fund service providers and asset management service providers not at the location of the service provider, but at location of customers.  That was good news for California service providers and bad news for out-of-state service providers.

The FTB scheduled on December 22, 2016 an Interested Parties Meeting for January 20, 2017 to discuss a series of issues arising under the new market- based sourcing regulations. A Discussion Topic Paper (attached) was issued on January 3, 2017, and included (1) draft examples of souring income from asset management fees, (2) a discussion of “reasonable approximation”, including who makes that reasonable approximation, (3) clarification of the term “benefit of a service” in several contexts, including timing, government contracts, R&D contracts and patent sales, (4) dividend assignment, (5) a freight forwarding example, (6) interest received from a business entity borrower and (7) marketing intangibles.

The FTB takes these Interested Parties Meetings seriously.  Taxpayers should pay immediate attention to whether any of these issues are of significance to them, and consider participating.

BREAKING NEWS: US Supreme Court Denies Cert in Direct Marketing Association v. Brohl

This morning, the US Supreme Court announced that it denied certiorari in Direct Marketing Association v. Brohl, which was on appeal from the US Court of Appeals for the Tenth Circuit. The denied petitions were filed this fall by both the Direct Marketing Association (DMA) and Colorado, with the Colorado cross-petition explicitly asking the Court to broadly reconsider Quill. In light of this, many viewed this case a potential vehicle to judicially overturn the Quill physical presence standard.

Practice Note:  Going forward, the Tenth Circuit decision upholding the constitutionality of Colorado’s notice and reporting law stands, and is binding in the Tenth Circuit (which includes Wyoming, Utah, New Mexico, Kansas and Oklahoma as well). While this development puts an end to this particular kill-Quill movement, there are a number of other challenges in the pipeline that continue to move forward.

In particular, the Ohio Supreme Court recently decided that the Ohio Commercial Activity Tax, a gross-receipts tax, is not subject to the Quill physical presence standard. A cert petition is expected in this case, and could provide another opportunity for the US Supreme Court to speak on the remote sales tax issue. In addition, litigation is pending in South Dakota and Alabama over economic nexus laws implemented earlier this year. A motion hearing took place before the US District Court for the District of South Dakota last week on whether the Wayfair case should be remanded back to state court. If so, the litigation would be subject to the expedited appeal procedures implemented by SB 106 (2016), and would be fast tracked for US Supreme Court review. Tennessee also recently adopted a regulation implementing an economic nexus standard for sales and use tax purposes that directly conflicts with Quill that is expected to be implemented (and challenged) in 2017. While Governor Bill Haslam has praised the effort, state legislators have been outspoken against the attempt to circumvent the legislature and impose a new tax. Notably, the Joint Committee on Government Operations still needs to approve the regulation for it to take effect, with the economic nexus regulation included in the rule packet scheduled for review by the committee this Thursday, December 15, 2016.

All this action comes at a time when states are gearing up to begin their 2017 legislative sessions, with many rumored to be preparing South Dakota-style economic nexus legislation for introduction. While DMA is dead as an option, the movement to overturn Quill continues and the next few months are expected to be extremely active in this area. Stay tuned to Inside SALT for the most up-to-date developments.

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