INSIDE SALT
INSIDE SALT
In-Depth Coverage of Issues Surrounding State and Local Tax
INSIDE SALT
In-Depth Coverage of Issues Surrounding State and Local Tax

Vermont Considers Imposing Mandatory Worldwide Combined Reporting

by , and | Feb 2, 2024 | , , , , , ,

The Vermont House Committee on Ways and Means is actively exploring a proposal to become the first state to enact mandatory worldwide combined reporting for corporate income tax purposes. While legislation has not been formally proposed, the Committee has examined a working draft that could be embedded into a broader tax legislation package.

In Committee testimony supporting the adoption of mandatory worldwide combined reporting, Don Griswold, a senior fellow at the Center on Budget and Policy Priorities, argued that multinational corporations “pay huge fees to sophisticated advisers to develop an endless variety of complex schemes that shift their profits offshore.” According to him, mandatory worldwide combined reporting would be “the complete solution” to stopping what he perceives as a “loophole for massive tax avoidance.” He also intimated that several companies are among those he believes are currently engaging in “tax avoidance,” even though he freely acknowledged that he worked in a “Big 4 accounting firm’s 600-person ‘state tax minimization’ group” for most of his career.

On the other hand, at least one representative from the Vermont Department of Taxes has suggested that worldwide mandatory combined reporting is not the panacea that Griswold claims it would be. In Committee testimony, Will Baker, assistant attorney general and general counsel at the Department of Taxes, pointed out that a corporation’s Vermont taxable income could increase or decrease under worldwide combined reporting depending on the profitability of the corporation’s domestic and overseas subsidiaries and the locations of the corporate unitary group’s sales throughout the world. Baker also suggested that the Department of Taxes would face practical challenges calculating the income of subsidiaries that are not part of a corporate filing at the US federal level. Finally, he added that “small states” should generally “have the same rules that other states have” to make it easier for taxpayers to comply with Vermont law.

The McDermott state & local tax team will be closely monitoring this legislative proposal to see whether the Vermont General Assembly takes heed of the advice of its own officials at the Department of Taxes.



Following Maryland’s Lead? We Guess Everyone Wants to Go to Court. Icy Challenges to Nebraska’s Advertising Services Tax Act Start to Emerge

by , and | Jan 18, 2024 | , , , ,

Nebraska Governor Jim Pillen’s ambitious plan to provide $2 billion in property tax relief via an increase in the sales tax rate and an expansion of the sales tax base is stirring significant debate. Part of his proposal is embodied in the newly introduced Legislative Bills 1310 and 1354, known as the “Advertising Services Tax Act” (the Act), which aims to finance this tax relief by imposing a 7.5% gross revenue tax on advertising services. However, this initiative faces a wall of voter opposition. A recent Battleground Connect survey revealed that 70% of likely voters disapproved of increasing the sales tax rate to offset property taxes. It should come as no surprise that Nebraska voters would not want to follow Maryland’s lead. What is surprising is that Nebraska legislators are willing to tie the fate of their new tax to a law that is currently being challenged in court in Maryland after the state adopted a similar tax in 2021.

The heart of the controversy lies in the new advertising tax’s specifics. The tax only targets firms with US gross advertising receipts exceeding $1 billion, a threshold that effectively discriminates against out-of-state advertising service providers and implicates constitutional and federal laws governing interstate commerce.

The proposed law specifically excludes “news media entities” and targets out-of-state digital advertising platforms. “Advertising services” incorporates a range of services, including digital advertising services, related to advertisement creation and dissemination. The term also includes “online referrals, search engine marketing and lead generation optimization, web campaign planning, the acquisition of advertising space in the Internet media, and the monitoring and evaluation of website traffic for purposes of determining the effectiveness of an advertising campaign.” Advertising services does not include services provided by entities “engaged primarily in the business of news gathering, reporting, or publishing articles or commentary about news, current events, culture, or other matters of public interest.” A news media entity does not include “an entity that is primarily an aggregator or republisher of third-party content.” Taxing publishers of one type of content and not taxing others raises profound First Amendment concerns.

While facially the Act applies to all advertising, its real focus is on digital and internet advertising and this targeting raises multiple legal and policy concerns:

  • Impact on Nebraska Businesses and Consumers. The tax, though imposed largely on out-of-state service providers, will be passed through directly to local businesses when they buy advertising. Much like a sales tax, service providers can and will add a line-item charge of 7.5% on each invoice to the local business placing the advertisement, driving up the cost of advertising services for Nebraska businesses. These higher costs will be reflected in the prices of goods and services sold to Nebraska consumers or the profits of local businesses.
  • Potential for Litigation. Drawing parallels with Maryland’s digital advertising tax, which faced legal challenges and has already once been ruled unconstitutional and barred by federal law, Nebraska’s legislation would also lead to costly and [...]

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New York Formally Adopts Corporate Tax Reform Regulations

by , , and | Dec 28, 2023 |

On December 27, 2023, the New York State Department of Taxation and Finance (Department) adopted corporate tax reform regulations addressing New York’s corporate tax reform effective in 2015. The adopted regulations are consistent with the proposed regulations released in August 2023 and only include what the Department has called “minor clarifying and technical changes.”

Although public comments submitted in response to the proposed regulations expressed various concerns over the possibility that the regulations would be applied retroactive to their formal adoption, the Department announced that the regulations will “generally apply to taxable years beginning on or after January 1, 2015.” However, the Department announced that, “based on a totality of the circumstances,” it “may choose not to apply penalties in cases where taxpayers took a position in their tax filings prior to adoption of the proposed rule in reliance upon prior [adopted corporate tax] regulations or prior drafts of the proposed” regulations.



Action Required: Maryland Denies All Ad Tax Refund Claims

by , and | Oct 27, 2023 | , ,

The Maryland Comptroller appears to have denied all refund claims for the 2022 digital advertising gross revenues (DAGR) tax! The denial notices were seemingly dated on or around October 11, 2023, and were sent via certified mail two weeks ago. The denial notices require immediate action by taxpayers.

Read more here.



Massachusetts Adopts Single-Sales-Factor Apportionment; Manufacturing Classification Becomes Less Controversial

by , and | Oct 11, 2023 | ,

On October 4, 2023, Massachusetts Governor Maura Healey signed House Bill 4104 into law. The most significant change it introduces is the adoption of single-sales-factor apportionment (SSF) for all corporate taxpayers, not just manufacturers and mutual fund service corporations. Massachusetts joins more than 30 other states that have adopted either mandatory or elective SSF. The law applies to tax years beginning on or after January 1, 2025.

In addition to the anticipated reduction in taxes for corporations with a relatively large Massachusetts property and payroll base, the change will end the relevance of the manufacturing and mutual fund service corporation classifications.

During the 20th century, Massachusetts was synonymous with three-factor apportionment. In fact, many called three-factor apportionment the “Massachusetts formula,” especially in the context of manufacturing. Then, in the 1990s, the state adopted SSF for manufacturers and mutual fund service corporations.

Generally speaking, under SSF, companies with a relatively large out-of-state presence had a lower apportionment percentage if they were not considered manufacturers. By contrast, companies with a large in-state presence generally had a lower apportionment percentage if they were manufacturers. Naturally, there were years of audits and litigation regarding these classifications. A company’s classification could even change from year to year depending on what ratio of its business fell within a classification. Thus, “winning” in one year did not mean that the issue would not be reexamined during the next audit cycle.

The broad adoption of SSF means that these classifications will no longer be relevant in this context, although the classifications still matter for other aspects of corporate income tax (like credits), as well as property and sales tax.



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