The Problem

On September 23, 2014, the District of Columbia Council enacted market-based sourcing provisions for sales of intangibles and services as part of the 2015 Budget Support Act (BSA), as we previously discussed in more detail here.  Most notably the BSA adopts a single sales factor formula for the DC franchise tax, which is applicable for tax years beginning after December 31, 2014.  But the market-based sourcing provisions in the BSA did not align with the rest of the tax legislation.  Specifically, the BSA market-based sourcing provisions were made applicable as of October 1, 2014—creating instant tax implications on 2014 returns.  Absent a legislative fix, this seemingly minor discrepancy will trigger a giant compliance burden that will require a part-year calculation for both taxpayers and the Office of Tax and Revenue (OTR) before the 2014 franchise return deadline on March 15.  For example, taxpayers filing based on the new BSA provisions, as originally enacted in September, will have to use the cost-of-performance approach for the first nine months of the 2014 tax year and the new market-based sourcing approach for the remaining three.

The Fix

Citing to the unintended compliance burden, the Council recently enacted emergency legislation to temporarily fix the unintended compliance burden.  However they have not solved the problem going forward.  On December 17, 2014, Finance and Revenue Committee Chairman Jack Evans introduced identical pieces of legislation that included both a temporary and emergency amendment to quickly fix on the problem (both pieces of legislation share the name “The Market-Based Sourcing Inter Alia Clarification Act of 2014”).  These legislative amendments explicitly make the applicability of market-based sourcing provisions synonymous with the other provisions of the BSA, beginning for tax years after December 31, 2014.  In DC, “emergency” legislation may be enacted without the typical 30-day congressional review period required of all other legislation, but is limited to an effective period of no longer than 90 days.  Because the emergency market-based sourcing legislation was signed by Mayor Muriel Bowser on January 13, it will expire on April 13.  Important to DC franchise taxpayers, this date is before the September 15 deadline for extended filers.

The second piece of legislation was introduced on a “temporary” basis.  Unlike emergency legislation, temporary legislation simply bypasses assignment to a committee but must still undergo a second reading, mayoral review and the 30-day congressional review period.  The review period is 30 days that Congress is in session (not 30 calendar days).  Because the temporary Act is still awaiting Mayor Bowser’s approval at the moment, which is due by this Friday (February 6), it will not become effective until after the 2014 DC Franchise Tax regular filing deadline of March 15—even if it is approved by the Mayor and not subjected to a joint-resolution by Congress.  Neither the House nor Senate is in session the week of February 15, which pushes the 30-day review period to roughly April 1 (assuming it is immediately submitted to Congress).  However, once passed, temporary legislation in the District may remain in effect for up to 225 days.

Practice Note:  Given the apparent intent of the Council to fix this problem, we are confident that a more permanent solution is on the way to correct the disconnect within the BSA provisions.  The Council should act sooner rather than later to ensure taxpayers have a sense of clarity prior to the September filing deadline.  While the Council appears to have their bases temporarily covered, any mishap in the passage of the temporary Act will leave DC taxpayers and the OTR with a significant compliance burden beginning on April 13.  We are closely monitoring the temporary Act, the likely introduction of a permanent fix and the much-anticipated release of market-based sourcing regulations by the OTR (discussed below).  We will update readers with any significant development in this area.

Additional Developments – Regulations Pending

Legislative mishap aside, OTR is nearing completion on a set of market-based sourcing regulations that are modeled off of the recently finalized Massachusetts guidance, but with fewer examples.  The Multistate Tax Commission (MTC) Uniformity Committee is also working to develop model-market sourcing rules and is using the Massachusetts rules as its starting draft.  As with similar uniformity efforts in the past, it will be interesting to see how uniform the DC regulations and MTC model regulations turn out to be.  For example, if the final product in DC substantially conforms to the Massachusetts model, taxpayers may be able to cite to the extended examples provided in the Massachusetts or MTC regulations when taking a tax position.  If history holds true, the one thing that is certain is that the uniformity effort won’t be entirely uniform.

In Letter of Finding No. 02-20140306 (Dec. 31, 2014), the Indiana Department of Revenue (Department) determined that income from the sale of two operating divisions of a business pursuant to an order of the Federal Trade Commission (FTC) was non-business income under Indiana law. Following the reasoning of the Indiana Tax Court in May Department Stores Co. v. Ind. Dep’t of State Revenue, 749 N.E.2d 651 (2001), the Department held that the gain constituted non-business income because the forced divestiture was not an integral part of the taxpayer’s business. Taxpayers facing the consequences of forced divestitures should consider whether similar positions can be taken, both in Indiana and in other Uniform Division of Income for Tax Purposes Act (UDITPA) jurisdictions.

Like many states that base their income apportionment provisions on UDITPA, Indiana defines “non-business income” as all income that is not business income. Indiana employs both the “functional test” and the “transactional test” to determine if a particular item of income qualifies as “business income.” Income may qualify as business income under either test; it is not required that both tests be met.

The functional test considers whether the income derives from the acquisition, management or disposition of property constituting an integral part of the taxpayer’s regular trade or business. Simply put, if a piece of property is used in the taxpayer’s regular course of business, a transaction involving that property will often result in business income. The transactional test, meanwhile, considers whether the income derives from a transaction or activity in which the taxpayer regularly engages.

In the Letter of Finding, the Department considered a taxpayer that sought to acquire, by merger, one of its competitors (“Target”), which consisted of four primary business divisions. The taxpayer and Target were part of a concentrated industry with very few competitors, so the acquisition created antitrust concerns. The taxpayer and Target sought advice from the FTC, which ordered that two of Target’s divisions be sold to a competitor if the merger were to take place. The taxpayer and Target complied with the FTC’s order, and Target sold the divisions to a competitor in 2006, prior to the merger. It classified its resulting income as non-business income. On audit, the Department reclassified the Target’s gain as business income, reducing the taxpayer’s Indiana net operating losses available for use in 2008-2010. The taxpayer appealed.

In examining the transaction, the Department first noted that the income from the sale of the divisions could not meet the transactional test because Target did not engage in the regular sale of business divisions. The Department then turned to the functional test. Arguably, the sale of the two operational business divisions should have resulted in business income because the divisions were used in the regular course of Target’s business. However, the Department observed that this fact alone was not enough to meet the functional test—“[t]he disposition too must be an integral part of the taxpayer’s regular trade or business operations.” Relying on May Department Stores, which also involved a court-ordered disposition resulting from an antitrust case, the Department then determined that the sale of the business benefitted Target’s competitors rather than Target and did not result in business income under the functional test because that sale was not “an integral part” of Target’s business.

Taxpayers hoping to treat gain as non-business income should take note of this ruling. Both the recent Letter of Finding and the underlying May Department Stores decision were ultimately based on UDITPA language, so a similar result may apply in other states using UDITPA or similar provisions. Additionally, the reasoning of the forced disposition exception to the functional test could arguably extend outside of the antitrust context. For example, if a creditor forced the sale of an operating unit, a similar argument could be made that the sale was not an integral part of the taxpayer’s business.

On September 11, 2014, Michigan Governor Rick Snyder signed legislation (SB 156) retroactively repealing the Multistate Tax Compact (Compact, formerly codified at MCL § 205.581 et seq.) from the state statutes, effective January 1, 2008.  Among other things, the bill’s passage ostensibly supersedes the Michigan Supreme Court’s decision in Int’l Bus. Machines Corp. v. Dep’t of Treasury, 496 Mich. 642 (2014) (holding that (1) the enactment of a single sales factor under the Business Tax Act (codified at MCL § 208.1101 et seq.) did not repeal Compact by implication and (2) the state’s modified gross receipts tax fell within the scope of Compact’s definition of “income tax” which the taxpayer could calculate using Compact’s three-factor apportionment test) and relieves the Department of Treasury from having to pay an estimated $1.1. billion in refunds to taxpayers.  While many commentators have rightfully focused on the constitutional validity of retroactively repealing the Compact in Michigan in such a manner (including our own Mary Kay Martire in her recent blog post), we think it is equally as important to consider whether the repeal compromises the validity of prior interstate audit assessments authorized pursuant to the Compact.


Article VIII of the Compact provides the specific rules governing participation in interstate audits conducted by the Multistate Tax Commission (MTC) via their Joint Audit Program (Program).  Unlike other provisions of the Compact, Article VIII is “in force only in those party states that specifically provide therefore by statute.”  Section 8 of the Compact provides this authority, simply stating “Article VIII [of the Compact] shall be in force in and with respect to this state.” See MCL § 205.588 (repealed by SB 156).  This threshold matter must be satisfied before the MTC is authorized to audit and assess businesses and review their books and records on behalf of any particular state.

The MTC and its participating audit states have taken the controversial position that membership and participation in the Program is independent from a state’s Compact status (e.g. Massachusetts, Nebraska, Tennessee, and Wisconsin have not adopted the Compact, yet participate in the Program).  Further, even when authorized, states have the discretion to elect not to participate in the Program by simply opting out for one or both of the taxes audited (income and franchise, or sales and use).

Minnesota offers an example of a state that may have withdrawn from the Compact correctly while maintaining the State’s ability to participate in MTC audits.  In May 2013, the legislature enacted legislation repealing the Compact (H.F. 677, repealing Minn. Stat. § 290.171) (this legislation does not appear to be retroactive).  In doing so, the legislature included a separate provision authorizing continued participation in audits performed by the MTC. See Minn. Stat. § 270C.03 subd. 1(9), amended by H.F. 677.  While Minnesota ultimately opted not to participate in these audits, they have statutory authority if they so choose (but as noted above, the Compact itself may not allow for this).


Unlike Minnesota, the recent repeal in Michigan failed to reserve the right to participate in the Program and made the repeal retroactive to Jan. 1, 2008.  These significant differences likely mean that Michigan taxpayers audited pursuant to an interstate audit conducted by the MTC were subject to now-unauthorized audits.  The implications of this retroactive invalidity are not entirely clear, but there are several interesting issues.  For example, taxpayers audited by the MTC on behalf of Michigan may have a breach of taxpayer confidentiality claim based on the lack of audit authority during their audits conducted after 2007.  There may be refund opportunities based on due process or other procedural violations as well (subject to statute of limitations and similar hurdles).

If Michigan’s retroactive repeal of the Compact is declared to be invalid —which we firmly believe it should be—the interstate audit provision is itself elective for the State and not subject to the same due process and compact law restrictions.  As previously discussed, the status of the Compact in a state does not govern participation in the Program and the state can opt out (at any time, for any reason).  Thus, it is possible that by enacting SB 156 Michigan legislators failed to properly retroactively repeal the Compact itself (e.g. the three-factor election) due to constitutional and compact law limits on retroactivity, while manifesting an unambiguous election to not participate in the Program (retroactive to Jan. 1, 2008).  Therefore, Michigan taxpayers audited pursuant the MTC Joint Audit Program should be entitled to some type of relief—regardless of the outcome of the inevitable Compact litigation on the horizon.

It is difficult, but not impossible (and quite satisfactory), to find a silver lining for taxpayers in the alternative apportionment opinion Vodafone Americas Holdings Inc. v. Roberts, M2013-00947-COA-R3CV, 2014 WL 2895900 (Tenn. Ct. App. June 23, 2014).  In this much discussed case, the Tennessee Court of Appeals affirmed a variance from the statutory cost of performance sourcing method for the apportionment formula on the basis that this method failed to meet the higher goal of fairly representing the business Vodafone derives from Tennessee. As part of the rationale for the variance, the Commissioner and Court of Appeals relied on the need to avoid “nowhere income.”  As long as each state has independent sovereign authority to adopt the apportionment methodology of its choice, using the risk of nowhere income as a reason to support application of discretionary authority to vary from a statutory formula is contrary to the law and policy supporting alternative apportionment authority as well as basic concepts of our federal system.  However, until this case is overturned, looking to how other states tax income is relevant in Tennessee in determining whether Tennessee’s statutory formula should be applied.  The horse has left the hen house and taxpayers should take advantage of this.  Specifically, if a taxpayer finds that, based on the existing statutory formulas, its receipts are included in the numerator of both Tennessee and another state, the taxpayer should seek relief to remove these receipts from the Tennessee numerator.  This avoids the double taxation burden that is the flip side of Tennessee’s nowhere income fears.

It is useful to look specifically at what the court said.  In Vodafone, the court noted that:

“Because [the Commissioner’s authority to issue a variance] applies when the statutory formula does not ‘fairly represent the extent of the taxpayer’s business activities in this  state,’ the variance can apply where the state is entitled to receive more taxes as well as a situation where the taxpayer is entitled to pay less taxes. The fact that other states do not tax the Tennessee receipts indicates that it is not unfair for Tennessee to do so.” Id. at 23.

In the accompanying footnote, the Court of Appeals notes that the goal of UDITPA (the model statute which Tennessee’s variance statute is based) is to ensure that no more than 100 percent of a businesses’ corporate income is subject to tax in all jurisdictions and positing that “[t]axing otherwise untaxed income does not run afoul of this goal.” Id. at fn. 20.

Thus, in the same paragraph, the court both acknowledges that the variance should equally be used to reduce Tennessee taxes when appropriate and uses a reference to whether other states tax the Tennessee receipts as a relevant benchmark.

As of the drafting of this post, Vodafone is in the process of seeking review of the decision by the Tennessee Supreme Court. Assuming the decision of the Court of Appeals is precedential going forward, taxpayers in Tennessee should consider holding the Commissioner to his own argument in Vodafone.  If nowhere income creates a presumption of fairness, then somewhere income should create a presumption of unfairness and taxpayers should be entitled to a variance.

Practice Note: The authors unquestionably prefer that the Supreme Court reverse this fatally flawed ruling.  However, if the court of appeals’ reasoning stands, taxpayers should take every opportunity available to demonstrate why Tennessee’s results oriented approach could bite the State on its bum.

The full slip opinion is available here.

In recent days, the state tax world has focused on the State of Michigan’s retroactive repeal of the Multistate Tax Compact (Compact).  Last week, the Michigan Legislature passed and Governor Snyder signed into law a bill (P.A. 282) that nullifies the effect of the state Supreme Court’s July 14, 2014 decision in International Business Machines v. Dep’t of Treasury, Dkt.  No. 146440.  In IBM, the state Supreme Court held that IBM may apportion its business income tax base and modified gross receipts tax base under the Michigan Business Tax (MBT) using the three-factor apportionment formula provided in the Compact, rather than the sales-factor apportionment formula provided by the MBT. Reflective of the urgency with which he views the situation, Michigan’s Governor Snyder signed the bill into law within twenty-four hours after its passage, with a statement that the state’s actions were an effort to ensure that “Michigan businesses are not penalized for investing in the State.”  The Michigan Department of Treasury (MDOT) made no attempt to sugar coat its statements in language that would reflect support for Michigan business interests.  Rather, it loudly proclaimed that the Legislature must act because the revenue impact to the State of the IBM decision was $1.1 billion.

The new law repeals L. 1969, P.A. 343, which enacted the Compact, retroactive to January 1, 2008, allegedly in order to express the original intent of the legislature regarding the application of M.C.L.A. §208.1403 of the MBT.  (Section 208.1403 specifies that a multistate taxpayer must apportion its tax base to Michigan using the sales factor.)  The law goes on to provide that the Legislature’s original “intended effect” of §208.1403 was to eliminate the ability for taxpayers to use the  Compact’s three factor apportionment election provision in computing their MBT, and to “clarify” that the election provision included in the Compact is not available to the Michigan Income Tax Act, which replaced the MBT in 2012.

The actions of the state are perhaps not surprising, given MDOT’s revenue estimate and the number of related claims (more than 130) that are reported to be pending before MDOT and/or the Michigan courts on this issue.  Earlier this week, the Michigan Court of Appeals issued an unpublished decision holding that the IBM ruling was dispositive on the issue of whether Lorillard Tobacco Company could elect to use a three-factor apportionment formula in computing its MBT for 2008 and 2009.  Lorillard Tobacco Co. v. Dep’t of Treasury, No. 313256 (Sept. 16, 2014).  Critics of the new law make strong arguments about the unfairness of the state’s recent actions, and tax pundits predict that the retroactivity of the law will soon be the subject of a court challenge.  What do Michigan court’s prior rulings on retroactivity teach us about how the Michigan courts are likely to address this issue?

This is not the first time in recent memory that the state has acted to retroactively repeal legislation with the potential for large, negative implications to Michigan’s revenue stream.  In General Motors Co. v. Dep’t of Treasury, 803 N.W.2d 698 (2010), the Michigan Court of Appeals upheld the constitutionality of a retroactive amendment to the state’s use tax law.  The amendment was enacted in response to a Michigan Supreme Court ruling that new car dealers and vehicle manufacturers were exempt from use tax liability under the state’s sale for resale exemption, despite any interim use to which the vehicles were put pending resale.  Betten Auto Center v. Dep’t of Treasury, 731 N.W.2d 424 (2007).  While the Betten appeals were pending, GM filed use tax claims with the state in excess of $100 million for time periods going back eleven years to 1996.  Following the Betten ruling, the state promptly amended the Use Tax Act to clarify that the interim use of a new vehicle was a “qualifying use” which eliminated the right to claim a resale exemption (Amendment).  The Amendment was made effective beginning September 30, 2002 (seven years before the enactment of the Amendment), and for all tax periods not barred by the statute of limitations.  The Amendment effectively eliminated GM’s refund claims.

In its legal challenge to the Amendment, GM argued that the Amendment was unconstitutional on several fronts, including the Due Process Clause of Fourteenth Amendment, the Taking Clause and the Title-Object Clause.  GM also argued that the Amendment violated the Constitution’s Separation of Powers Clause by interfering with the province of the State judiciary, and that the Amendment was special purpose legislation designed to eliminate GM’s refund claim.  All of these arguments were rejected by the Appellate Court.

With respect to the Due Process Clause, citing United States v. Carlton, 512 U.S. 26 (1994), the Appellate Court held that it “has almost universally been recognized” that a legislature’s action to “mend a leak” in the public treasury as a result of a judicial decision is rationally related to a legitimate legislative purpose.  Addressing the question whether the legislature achieved its legitimate purpose by rational means, the court held that the period of retroactivity was “modest” for four reasons: (1) the Amendment served only to “confirm the application of a tax previously imposed;” (2) GM had not relied to its detriment on the prior language of the Use Tax law (evidenced by the fact that GM was filing claims for refund, not supporting an original return position); (3) the Michigan Legislature had acted promptly to enact the Amendment after the Betten ruling; and (4) there were many other cases affirming similar periods of retroactivity (which the court chose to characterize as seven years, not the eleven years claims by GM).  The Michigan Supreme Court and the U.S. Supreme Court denied GM’s requests for higher court review.

The GM ruling underscores the difficulties that taxpayers face in bringing a constitutional challenge to a taxing statute, even one with a period of retroactivity widely criticized as unfair to taxpayers.  The state tax world will watch with interest to see if a successful legal challenge can be raised to the retroactive application of P.A. 282.

Member states of the Multistate Tax Commission (MTC) voted to adopt proposed amendments to Article IV of the Multistate Tax Compact during their annual meeting in late July.  The proposed amendments likely to have the most widespread impact on taxpayers are the amendments to the Uniform Division of Income for Tax Purposes Act (UDITPA) Article IV section 17 sourcing rules that change the sales factor sourcing methodology for services and intangibles from a costs of performance (COP) method to a market-based sourcing method. 

The MTC’s recommended market approach provides that sales of services and intangibles “are in [the] State if the taxpayer’s market for the sales is in [the] state.”  In the case of services, a taxpayer’s market for sales is in the state “if and to the extent the service is delivered to a location in the state.”  The proposed amendments also provide that if the state of delivery cannot be determined, taxpayers are permitted to use a reasonable approximation.  At this point, there is no additional guidance from the MTC on the meaning of “delivered,” how to determine the location of delivery in the event that a service is delivered to multiple jurisdictions, or what constitutes a reasonable approximation.

While the proposed amendments may be touted by some as the death knell of COP sourcing, for these changes to take effect, they will still need to be adopted individually by legislatures in Compact member states or in any other states that may choose to adopt them.  As we have seen over the last several years, many states have already forged their own paths in this area.  (See our article discussing the wide variety of market-based sourcing rules.)  Moreover, while many states have enacted market-based sourcing provisions with respect to the sale of services, certain states, unlike the MTC proposed amendments, have declined to convert to market-based sourcing for intangibles (e.g., Pennsylvania).

The proposed amendments leave taxpayers with many unanswered questions.  For example, assume a corporate taxpayer (Corporation A) is in the business of offering a payroll processing service.  Corporation A provides this service to Corporation B.  Corporation B’s management of the contractual arrangement with Corporation A occurs in Massachusetts, which is also the location of Corporation B’s human resources function.  Corporation B has 10,000 employees, 2,000 of whom are located in a jurisdiction that has adopted the MTC’s market-based sourcing recommendation (State X).  What portion of Corporation A’s receipts from the performance of its payroll processing service for Corporation B should be sourced to State X?

One can reasonably argue that the service is delivered to Corporation B as a corporation (i.e., that the human resources function is the true beneficiary) and not individually to Corporation B’s employees—leaving State X with nothing.  However, does the MTC’s language “if and to the extent the service is delivered” create an opportunity for State X to argue that it should receive 1/5 (2,000 employees/10,000 employees) of Corporation A’s receipts?

In late August, the MTC launched a project to draft market-based sourcing regulations that are expected to answer some of these questions.  Since Massachusetts adopted market-based sourcing language identical to the MTC amendments, there is some concern that the draft MTC regulations could bear a striking resemblance to the overly complex Massachusetts draft regulations.  Under the Massachusetts draft regulations, Corporation A’s receipts in the above-example, would likely be sourced entirely to Massachusetts under the provisions applicable to professional services.

It remains to be seen whether all current COP states will view the MTC’s recommendations on market-based sourcing as a call to action.  Since 19 states have already forged their own market-based sourcing paths, it seems likely that uniformity will be an impossible task to achieve—leaving taxpayers in a position of both uncertainty and opportunity.

On July 14, 2014, the Fiscal Year 2015 Budget Support Emergency Act of 2014 (2015 BSEA) was enacted after the D.C. Council voted to override Mayor Vincent Gray’s veto.  The act includes a tax relief package recommended by the D.C. Tax Revision Commission, and includes a change to D.C.’s apportionment formula, moving the city to single sales factor apportionment.

Since January 1, 2011, D.C. has required taxpayers to apportion their business income by the property-payroll double-weighted sales factor formula.  D.C. Code Ann. § 47-1810.02(d-1).  Among the provisions enacted in the 2015 BSEA, the District will require the apportionment of business income via a single sales factor formula, starting with tax years beginning after December 31, 2014.  D.C. Act 20-0377, § 7012(c)(10) (2014).  While the 2015 BSEA has only a temporary effect and expires on October 12, 2014, it serves as a stopgap until the process of enacting the permanent version, the Fiscal Year 2015 Budget Support Act of 2014 (2015 BSA) is completed.  (See the single sales factor apportionment provision at D.C. Bill 20-0750, § 7012(a)(10) (2014).)  The 2015 BSA has not yet been enrolled and transmitted to the mayor.  After the mayor signs the 2015 BSA or the D.C. Council overrides his veto, the 2015 BSA will be sent to Congress for review.  If Congress and the President do not enact a joint resolution disapproving of the 2015 BSA, the 2015 BSA will become law, and the switch to single sales factor apportionment will be effective as of January 1, 2015. 

Even with this legislative change, D.C. taxpayers may have an argument for apportioning their business income under the three-factor apportionment formula.  In 1981, the District adopted the Multistate Tax Compact (Compact) as 1981 D.C. Law 4-17.  The Compact provides for the use of the evenly weighted three-factor sales-property-payroll formula.  Multistate Tax Compact, art. IV, sec. 9.  The Compact permits the taxpayer to elect to apportion his business income under the city’s apportionment formula or under the Compact’s three-factor formula.  Multistate Tax Compact, art. III, sec. 1.  In 2013, D.C. repealed and reenacted the statute codifying the Compact, D.C. Code § 47-441.  However, D.C. did not re-enact Article III, Elements of Income Tax Laws, and Article IV, Division of Income.  The repeal of the two articles was effective as of July 30, 2013.  D.C. Act 20-130, §§ 7342(a), (b) (2013); D.C. Act 20-204, §§ 7342(a), (b) (2013); D.C. Law 20-61, §§ 7342(a), (b) (2013).

D.C. repealed and reenacted the Compact in reaction to litigation involving taxpayers that elected to use the three-factor apportionment formula under the Compact instead of the state-mandated apportionment formulas.  See Gillette Co. et al. v. Franchise Tax Bd., 209 Cal.App. 4th 938 (2012); Int’l Bus. Mach. Corp. v. Dep’t of Treasury, No. 146440 (Mich. Jul. 14, 2014); Health Net, Inc. v. Dep’t of Revenue, No. TC 5127 (Or. T.C. 2014).  The California Court of Appeal and Michigan Supreme Court have upheld the taxpayers’ use of the Compact election.

Following the theories being advanced in the above mentioned litigation, while D.C. is switching to the single sales factor formula, taxpayers may have the opportunity to apportion their business income under the Compact’s three-factor apportionment formula.  An argument exists that the three-factor Compact apportionment formula election is still available even though D.C. repealed and partly reenacted the Compact in 2013.  Article X of the Compact permits a party state to withdraw from the Compact “by enacting a statute repealing the same.”  An argument can be made that the partial repeal was impermissible under article X of the Compact and that the three-factor formula election is still available to D.C. taxpayers.  Once a member of the Compact, always a member?!?

Practice Note:  D.C. taxpayers should keep in mind that the Compact apportionment formula election may be available when they file their returns for the 2015 taxable year.  Because out-of-state taxpayers typically do not have significant property or payroll in D.C., they will likely benefit from electing to use the three-factor apportionment formula.

Taxpayers resisting audit requests for tax returns filed in other states, or requests for details about the treatment of an item in another state, now have another quill in their arsenal besides the 2010 Oregon Tax Court decision in Oracle Corp. v. Dep’t of Rev., 2010 Ore. Tax LEXIS 32 (Or. T.C. 2-11-10).  The New Jersey Tax Court recently issued a letter opinion in Elan Pharmaceuticals, Inc. v. Director, Division of Taxation, Tax Court Dkt. 010589-2010 (May 1, 2014), reiterating that a taxpayer is not required to treat an item in exactly the same way it treats it in another state.

Like Oracle, Elan Pharmaceuticals involves the business/non-business distinction (called the operational/non-operational distinction in New Jersey vernacular).  Apparently, the company reported its gain from the sale of certain operations as business (i.e., “operational”) income on its California Franchise Tax Return, but reported the same gain as nonbusiness (i.e., “nonoperational”) income on its New Jersey Corporation Business Tax Return.  These facts largely mirror those in Oracle, except that the state involved was Oregon, not New Jersey.

During the Division of Taxation’s audit of the company, the gain was recharacterized as business income, which resulted in a substantial deficiency.  While the Division’s position was based on a number of factors, including its determination that the company never ceased conducting the line of business it purportedly disposed of, the Division was clearly influenced by the company’s treatment of the gain in California.  In fact, the Division asserted that because the company treated the gain as apportionable business income in California, it could not treat it as non-apportionable nonbusiness income elsewhere.

Like the Oregon Tax Court, the New Jersey Tax Court rejected such a purported duty of consistency.  The Court stated that a requirement of consistency, while “appealing under pure common sense, and in light of the purpose of the UDIPTA, . . . does not mean that [the company] is barred from seeking application of New Jersey law when challenging a New Jersey tax assessment.”  The Court continued:  “this court should be guided by N.J.S.A. 54:10A-6.1(a), New Jersey’s basis for taxing operational income, and the binding law construing that statute, not the consequent result of such treatment in another State.”

Ultimately, the Tax Court agreed with the Division of Taxation that the company’s gain was apportionable business income, relying largely on the unitary business principle (an aspect of the matter that appears not to have been fully developed on the record or addressed by the parties during briefing).  Still, the Court’s mandate that the actual treatment of an item in another state not be binding for New Jersey purposes is important.  It’s also entirely consistent with another recent Tax Court decision—Lorillard Licensing Co., LLC v. Director, Division of Taxation, N.J. Tax Ct. Dkt. A-2033-13T1 (Jan. 14, 2014), in which the Tax Court determined that whether or not another state actually imposes income tax on receipts is irrelevant for purposes of computing New Jersey’s now-defunct “throw out rule” so long as the other state would have had the authority to impose an income tax based on New Jersey’s own economic nexus standards.

How can decisions like Oracle, Elan Pharmaceuticals, and even Lorillard, help taxpayers during audits and when establishing reserves for contingent positions?  As a practical matter, these are terrific cases to provide to auditors when the auditor asks how items are treated in other states.  For example, it is quite common for auditors to request a company’s 50-state apportionment worksheet.  Taxpayers often dread this request because it raises precisely the situation addressed in Oracle and Elan Pharmaceutical—that a department of revenue will undermine any favorable positions taken by a taxpayer if the taxpayer took an apparently inconsistent position elsewhere, regardless of the legal or factual basis for the apparent inconsistency.  Of course, a reasonable response is refusal to provide the document on the basis that other states’ treatment of items is entirely irrelevant—and these cases support that defense.  Another approach is to complete the form as if every state imposed the same laws as the requesting state and administered them the same way, being sure to include a statement on the form indicating the approach used.  This method has been effective in a number of state audits.

The cases are also helpful to reference in tax reserve memos and opinions, both when inconsistent positions were actually taken in states and when a liability or benefit being booked relates to an inconsistent position.

Oracle, Elan Pharmaceuticals, and Lorillard are good reminder that companies can—and should—explore all of their options before automatically treating items identically on returns filed throughout the country.  This is true, of course, with the business/non-business distinction as addressed in Oracle and Elan Pharmaceuticals.  But it is also true with respect to other portions of a tax return, such as apportionment.  It is not unusual to find that a slight wording difference in a statute or regulation, or a department of revenue or state court’s interpretations of a statute, provide sufficient basis for taking seemingly contradictory favorable positions.

The FY 2015 District of Columbia Budget Request Act (BRA, Bill 20-749) is currently being reviewed by the D.C. Council after being introduced on April 3 at the request of Mayor Vincent Gray. This year’s Budget Support Act (BSA, Bill 20-750), the supplementary bill implementing changes based on the BRA, contains several significant modifications to the tax provisions of the D.C. Code. The changes include provisions recently recommended by the D.C. Tax Revision Commission (TRC), an independent body created by the Council to evaluate possible changes to tax policy in the District with a focus on broadening the tax base and providing “fairness in tax apportionment.” In particular, the BSA proposes to adopt a single sales factor formula for the apportionment of business income and to reduce business income tax rates (both corporate and unincorporated) from nearly 10 to 9.4 percent. Two additional amendments are pulled directly from the Multistate Tax Commission (MTC) rewrite of the Uniform Division of Income for Tax Purposes Act (UDITPA), including a change to the District’s definition of “sale” and the elimination of cost-of-performance sourcing.

Under the District’s existing apportionment statute, all businesses must apportion business income using a four factor formula consisting of property, payroll and double weighted sales factors. If the BSA is enacted, the statute would be amended to also apportion all business income using a single sales factor. While it is clear that the intent of the BSA provision is to adopt a single sales factor in D.C. going forward, a major ambiguity exists in drafting that would require apportionment using both a single sales and double weighted sales factor formula for taxable years starting after December 31, 2014—which of course is impossible. Thus, without a legislative amendments by the D.C. Council prior to passage on May 28, it is unclear whether the single sales factor formula will be optional or mandatory (as recommended by the TRC) for FY 2015. The budget projection released by Mayor Gray in conjunction with the legislation suggests that the single sales factor would be mandatory, since it is projected that this change would raise an additional $20 million in tax revenue for the District for FY 2015. If the single sales factor were optional, it is unlikely the provision would raise that much revenue.

In addition to statutory modifications to the apportionment formula, the BSA also would reduce the tax rate imposed on corporate and unincorporated businesses from 9.975 percent to 9.4 percent.  This is still higher than Maryland (8.25 percent) and Virginia (6 percent).

Picking up where the MTC left off with its ongoing UDITPA rewrite, the District would adopt the MTC draft definition of “sale” to explicitly exclude receipts from hedging transactions and other investment related activity (including the sale, exchange or other disposition of cash or securities).

In addition, BSA would adopt market-based sourcing for sales of intangibles and services, using the language of the MTC draft to do so.  The BSA does not pick up the remaining provisions of the MTC draft UDITPA rewrite.

The full text of the BSA is available here.

Practice Note: Since the vast majority of large multistate businesses making sales in the District do not have significant property or payroll in D.C., most corporations will likely be subject to greater tax liability under a single sales factor approach.  The expected legislative timetable for adoption of the BSA is below:

FY 2015 Budget Timeline:

  • April 3, 2014: Mayor Gray submits FY 2015 Proposed Budget to D.C. Council
  • April 7, 2014: Committee of the Whole Briefing on Mayor’s proposed budget
  • May 9, 2014: Committee of the Whole Public Hearing on BRA and BSA
  • May 13-15, 2014: Council Committee Mark-Ups
  • May 19-27, 2014: Council closed door markup and negotiation
  • May 28, 2014: Council will conduct its first reading and vote on the BRA and BSA (only one reading of the BRA is required since it must be sent to Congress for approval under the D.C. Home Rule Act)
  • June 11, 2014: Council second vote on the BSA. Shortly after both the BRA and BSA are approved by the Council, they will be submitted to Congress for approval. Congress approves the D.C. Budget in conjunction with their federal appropriations legislation (which may take months)
  • October 2014: Fiscal Year 2015 begins

On April 15, 2014, the Supreme Court of Missouri held that income from a trust used to fund an executive deferred compensation plan (a “rabbi trust”) was apportionable business income.  MINACT, Inc. v. Director of Revenue, No. SC93162 (Mo. Apr. 15, 2014).  The taxpayer, MINACT, Inc., is a Mississippi-based corporation that contracts with the federal government to manage its education and job training programs.

MINACT reported the trust income as nonbusiness income on its 2007 Missouri corporate income tax return, allocating all the income to Mississippi.  The Missouri director of revenue disagreed with the taxpayer and determined that the trust income was business income.  MINACT appealed to the Administrative Hearing Commission, which overturned the director’s decision, finding that the trust income was nonbusiness income “because it was ‘not attributable to the acquisition, management, and disposition of property constituting an integral part of MINACT’s regular business. …’”  (Opinion at 3.)  The director appealed the decision to the Missouri Supreme Court.

The Missouri Supreme Court analyzed whether the trust income was business income under the state’s statutory UDITPA definition of “business income,” which Missouri interprets to include both a transactional and a functional test.  (Opinion at 4-5.)  See, e.g., ABB C-E Nuclear Power Inc. v. Dir. of Revenue, 215 S.W.3d 85 (Mo. 2007) (income must fail to satisfy both tests to be nonbusiness income).  The Supreme Court agreed with the Commission that the trust income was not business income under the transactional test (MINACT earned the income from investing, not from its regular business of managing job training programs), but it found that the income was business income under the functional test because MINACT established its executive deferred compensation plan to attract and retain key employees who were engaged in MINACT’s regular business operations.  (Opinion at 5.)  The Court cited California and United States Tax Court cases for the notion that “attracting and retaining key employees is an important business purpose” and found that the employees who benefitted from the rabbi trust furthered MINACT’s business by providing capable leadership. (Opinion at 5, 7.)  Using this same reasoning, the Court also rejected MINACT’s constitutional challenges.

This is the third ruling of which we are aware finding that income earned from investments in employee-related funds meet the functional test for business income.  In Va. Tax Comm’r Ruling, No. 03-60 (Aug. 8, 2003), the Virginia Tax Commissioner held that rabbi trust income as nonbusiness income because “attracting and retaining quality corporate officers is an integral part of the operations of any business . . .”  Similarly, in Hoechst Celanese Corp. v. Franchise Tax Bd., 106 Cal. Rptr. 2d 548, 570-71 (Cal. 2001), the California Supreme Court held that income from an employer’s reversion of pension plan assets was business income under the functional test because the employer created the plan to retain and attract employees, which the court found integral to the employer’s business operations.