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Maryland Enacts First Digital Advertising Services Gross Receipts Tax: Now What?

General Assembly Veto Override

On February 12, 2021, the Maryland General Assembly overrode Governor Larry Hogan’s veto of HB 732 (2020) (the Act), a bill enacting a first-of-its-kind digital advertising services tax on the annual gross receipts from the provision of digital advertising services in Maryland. The tax only applies to companies having annual gross revenues (without deduction of any expenses) from all sources of $100 million or more. The rate of the tax varies, depending on the level of global annual gross revenues, from 2.5% (for companies with $1 billion or less in global annual gross revenues) to 10% (for companies with more than $15 billion in global annual gross revenue). The rate applies to gross revenues from the performance of digital advertising services in Maryland. For instance, a company subject to the 10% rate having $100 million of revenue attributable to the performance of digital advertising services in Maryland would owe an annual tax of $10 million that will be reported and paid on a quarterly basis throughout the year.



Effective Date

Even though the legislation says the tax is effective July 1, 2020, under the Maryland Constitution, vetoed legislation becomes effective the later of the effective date in the bill or 30 days after the veto is overridden. Based on today’s veto override, the bill should become effective on or about March 14, 2021. However, because the legislation is “applicable to all taxable years beginning after December 31, 2020,” the digital advertising services tax will be retroactive to the beginning of this year.

Looming Compliance Deadlines

The digital advertising services tax applies on an annual basis with a return due on or before April 15 of the following year. However, the tax also requires quarterly filing and payment for certain taxpayers. On or before April 15 of the current year, persons subject to the tax are required to file a declaration of estimated tax showing how much Maryland digital advertising services tax they expect they will owe for the calendar year. As part of the declaration and quarterly with returns filed thereafter, the Act requires that they pay at least 25% of the estimated annual tax shown on the declaration. There is a penalty of up to 25% of the amount of any underestimate of the tax. The Act also creates a fine of up to $5,000 and criminal penalties of up to five years’ imprisonment for willfully failing to file the annual return.

Filing and Guidance TBD

At the time of writing, the Maryland Office of the Comptroller has not published any of the forms necessary for making the declaration of estimated tax or the return due on April 15 of the current year. The comptroller’s office also has not adopted regulations as required by the Act, providing guidance on when advertising revenue is derived in Maryland, likely a daunting and complicated task since this is a novel question that other states have not addressed. Many aspects of the Act are vague at best [...]

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Washington Department of Revenue Announces LendingTree Decision Does Not Prevent Sourcing of Services to Customer’s Customer Location

The Washington State Department of Revenue (the “Department”) recently announced its interpretation of the Washington Court of Appeals’ March 30, 2020, adverse ruling in LendingTree, LLC v. Dep’t of Revenue, no. 80637-8-I (Wash. App. Ct. Mar. 30, 2020). See here for our prior analysis of the LendingTree opinion. In its interpretation, the Department takes the view that the LendingTree opinion “does not represent a new legal framework,” but rather that the court simply followed the applicable business and occupation tax apportionment rules in sourcing service receipts to the customer’s location and rejecting the Department’s methodology sourcing to the customers’ customers’ location.

The Department’s response suggests that it intends to narrowly apply LendingTree‘s holding. The Department admits that the court agreed with LendingTree in designating the service at issue to be LendingTree’s referral services (lenders pay a fee to receive referrals of potential borrowers) and rejected the Department’s characterization of the service as marketing and outreach to potential borrowers. Under this characterization, the Department observes, in accordance with a Washington regulation sourcing services to where the customer’s related business activity occurs, the referral services are sourced to the lender’s location, where lenders evaluate the referrals received by LendingTree.

The response goes on to emphasize, however, that there are circumstances where the Department will continue to source service receipts to a customer’s customers’ location. The Department announced that one such circumstance would be for taxpayers who have revenues from the sale of marketing or advertising services to a customer engaged in the business of selling.

Taxpayers should be forewarned that despite the LendingTree ruling, they may still have to battle Department efforts to source service receipts based on the location of their customers’ customers (particularly if they are engaged in the sale of marketing or advertising services), despite a Washington statute requiring service receipts to be sourced to the customer and federal constitutional principles requiring that an apportionment method reflect a taxpayer’s in-state activity. (See: e.g., Oklahoma Tax Commission v. Jefferson Lines, 514 U.S. 175 (1995); Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983).) Unfortunately, it appears that “look through” sourcing disputes between taxpayers and the Department will continue.




Washington Surtax on “Big Banks” Struck Down as Unconstitutional

On May 8, Washington’s 1.2% surtax on “specified financial institutions” (banks with at least $1 billion a year in net revenue) was struck down by a King County Superior Court judge. Judge Marshall Ferguson ruled that the tax, which is imposed on top of all other taxes, violates the Commerce Clause of the US Constitution by discriminating against out-of-state banks in both purpose and effect.

In their briefs, attorneys for the Washington Bankers Association and American Bankers Association explained that an out-of-state bank would pay a much higher tax rate (and be at a competitive disadvantage) compared to an in-state bank because its global revenue is sufficient to trigger owing the surtax. The associations presented evidence that every bank meeting the definition of “specified financial institution” was an out-of-state bank, and that no in-state bank met the definition. Further, they pointed to statements by legislators appearing to show an intent to promote “local banks” and address a national wealth disparity and regressive taxation.

The state responded that the surtax is neutral on its face, applying to all businesses with $1 billion regardless of their headquarters location, and that none of the funds were used to subsidize or reduce tax burdens on in-state banks. They also argued that the tax should be presumed constitutional and rejected the plaintiffs’ standing to sue as associations. The actual effect of discrimination seemed especially persuasive to Judge Ferguson, who asked counsel for the state, “If the tax so clearly falls on non-Washington businesses, is that not a discriminatory effect?”

The state may appeal the case, Washington Bankers Association et al. v. State of Washington et al., No. 19-2-29262-8, to the Washington Supreme Court.

Practice Note: The structure of the tax struck down in this case, a surtax imposed only if the company’s global income exceeds a high threshold, has been on the rise. San Francisco’s gross receipts tax on businesses with over $50 million in receipts, Portland’s clean energy surcharge on businesses with over $1 billion in national gross revenue, and Maryland’s proposed digital advertising tax based on a sliding scale of global revenue all come to mind. This ruling may be the first sign that judges will not be afraid to subject such taxes to scrutiny under Commerce Clause analysis.




Washington Appellate Court Rejects Department’s B&O Tax Apportionment Method

In a recently issued taxpayer-favorable opinion, the Washington Appellate Court rejected the apportionment methodology used by the Department of Revenue, which sourced service receipts to the location of a taxpayer’s customers’ customers. The Court then affirmed the taxpayer’s methodology, which sourced the receipts to the location of its customers. LendingTree, LLC v. State of Wash. Dep’t of Revenue, no. 80637-8-I (Wash. App. Ct. Mar. 30, 2020) (“LendingTree Op.”).

The dispute concerned the receipts LendingTree, LLC (“LendingTree”) earned from operating its online loan marketplace for purposes of Washington’s Business and Occupation Tax. LendingTree’s business sought to match prospective borrowers and lenders though its website. Prospective borrowers provided LendingTree with requested financial information for no charge, and LendingTree analyzed this data to make referrals to lenders. Lenders paid fees to LendingTree related to its referral services. On audit, the Washington Department of Revenue (“Department”) took the position that LendingTree should have apportioned its service receipts based on the location of potential borrowers rather than its lenders’ locations. Both the Administrative Review and Hearings Division and trial court found for the Department, and LendingTree appealed.

Washington law, like the law of other states, requires multi-state taxpayers earning income from the performance of services to apportion the income to Washington if a customer receives the benefit of the taxpayer’s services in Washington (see Wash. Rev. Code § 82.04.462(3)(b)(i)). A related Washington regulation clarifies where a customer engaged in business receives the benefit of a taxpayer’s service: If the service relates to a customer’s business activities (and the service does not relate to real or tangible property), then the benefit is received where the customer’s related business activities occur. See Wash. Admin. Code 458-20-19402(303)(c). Citing this regulation, the Appellate Court concluded that “taxes are attributed to the state where the lenders conduct their business activity that most closely or directly relates to the services performed by LendingTree” (LendingTree Op. at 5).

The Appellate Court went on to conclude that the services at issue were LendingTree’s referrals of prospective borrowers to lenders, and that the lenders’ related business activities were their receipt and evaluation of the referrals at lender business locations. The Court rejected the Department’s argument that lenders received the benefit of LendingTree’s services where the borrowers (LendingTree’s customers’ customers) were located, reasoning that lenders received no benefit from LendingTree’s services until LendingTree made referrals to lenders identifying prospective borrowers. In support of its conclusion, the Court noted that lenders did not even know the identity of potential borrowers at the onset of the referral evaluation process. (LendingTree Op. at 7).

In reaching its conclusion that service receipts must be apportioned based on where the customers received the benefit of the taxpayer’s services, rather than where the customers’ customers were located, the court relied on its recently published opinion in ARUP Laboratories, Inc. v. State of Washington Department of Revenue, no. 52349-3-II (Wash. App. Ct. Feb. 11, 2020) (“ARUP Op.”). Interpreting the same rules at issue in [...]

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Washington Legislature Introduces Revised Uniform Unclaimed Property Act

On January 10, 2018, a bill was introduced in the Washington State Legislature that would substantially enact the Revised Uniform Unclaimed Property Act (RUUPA) finalized by the Uniform Law Commission (ULC) in late 2016. The bill, House Bill (HB) 2486, is sponsored by Representative Paul Graves at the request of the ULC and would be effective beginning January 1, 2019. The House Committee on Finance conducted a public hearing on the bill on January 16, 2018, but only the sponsor testified and the bill was held for further consideration. While similar (or identical) to RUUPA in most respects, the bill contains a number of significant deviations. Below is a brief summary of several provisions that we flagged in our initial review and the potential impact on Washington holders. (more…)




SCOTUS Asked to Hear Appeal Involving Constitutionality of Retroactive Tax Legislation

The Supreme Court of the United States has been asked to hear an appeal in a case involving the circumstances in which retroactive tax legislation will be constitutional.

In Dot Foods, Inc. v. State of Washington Department of Revenue, 372 P.3d 747 (Wash. 2016), the Washington State Supreme Court upheld legislation retroactively removing a corporate income tax exemption.  Although the legislature, in justifying its action, said that the retroactive legislation was intended to reflect the legislature’s initial intent, the facts did not bear that out.  The exemption was consciously adopted by the legislature and, indeed, upheld by the Washington Supreme Court when the Department of Revenue attacked Dot Foods’ use of it in an earlier case.  (more…)




Washington ALJ Upholds B&O Assessment on German Company’s Royalty Income

On May 31, 2016, the Washington Department of Revenue (DOR) Appeals Division released a Determination (No. 15-0251, 35 WTD 230) denying a German pharmaceutical company’s business and occupation tax (B&O) protest. The administrative law judge (ALJ) ruled that while the nondiscrimination provisions contained in Article 24 of the US-Germany Income tax Treaty (Treaty) “may apply,” the B&O does not discriminate against non-US businesses because it is imposed on any business deriving royalty income from Washington sources and applies equally to foreign and US companies. The ALJ also found that the company could avoid double taxation of the royalty income by excluding income taxed by Washington from its German tax base. While the company also challenged the constitutionality of the 2010 B&O economic nexus law, the ALJ declined to entertain it—citing a lack of authority to rule on the constitutionality of Washington statutes.

(more…)




Focus on Tax Controversy – December 2015

McDermott Will & Emery has released the December 2015 issue of Focus on Tax Controversy, which provides insight into the complex issues surrounding U.S. federal, international, and state and local tax controversies, including Internal Revenue Service audits and appeals, competent authority matters and trial and appellate litigation.

Mark Yopp authored an article entitled “Waiting for Relief from Retroactivity,” which discusses how courts are expanding the ability of state legislatures to retroactively change taxpayer liability going back many years.

View the full issue (PDF).




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