The Illinois Department of Revenue (Department) announced that it will grant abatement of late filing penalties for taxpayers that file their Illinois business income tax returns on or before November 15 and request penalty waivers for reasonable cause. The Department stated that it will waive late penalties due to the “complexity” of recent federal tax reform and possible taxpayer challenges in meeting the October 15 extended filing deadline for federal and state purposes.
In June 2018, just before the US Supreme Court ruling in Wayfair, Illinois enacted an economic nexus standard modeled after South Dakota’s law (see our prior coverage). The new Illinois standard takes effect on October 1, 2018. On September 11, the Illinois Department of Revenue (Department) issued an emergency rule (Regulation 150.803), together with other guidance found on its website, intended to assist remote retailers with compliance with the new law.
The Regulation was effective immediately. Retailers should note the following key features of the Regulation. Continue Reading Illinois Department of Revenue Issues Post-Wayfair Guidance Implementing October 1 Economic Nexus Law
On Wednesday, the Illinois Department of Revenue (Department) issued additional guidance concerning its treatment of the new deemed repatriated foreign earnings provisions found in Internal Revenue Code Section 965, enacted in the federal tax reform bill (known as the Tax Cuts and Jobs Act, or “TCJA”). The Department confirmed key aspects of Illinois’ treatment of the repatriation provisions, including:
- Both the income inclusion and deduction provided for in the deemed repatriated foreign earnings provisions will be taken into account in determining a taxpayer’s tax base, so that the inclusion in Illinois will be net. The Department’s guidance references the new federal IRC 965 Transition Tax Statement, which a taxpayer must file with its 2017 federal return when reporting deemed repatriated foreign earnings; that statement includes both income under IRC 965(a) and the corresponding participation deduction under IRC 965(c).
- Additionally, the Department’s guidance also confirms that the net amount included as deemed repatriated foreign earnings will be treated as a foreign dividend eligible for Illinois’ dividend-received deduction, which can be a 70 percent, 80 percent or 100 percent deduction depending on a taxpayer’s percentage share of ownership of the foreign subsidiary subject to the repatriation provisions. See 35 ILCS 5/203(b)(2)(O). (For tax periods beginning on or after January 1, 2018, 80 percent is reduced to 65 percent and 70 percent is reduced to 50 percent because this provision incorporates the federal dividend-received deduction rates found in IRC 243, which was amended as such by the TCJA.)
States are moving to advance different solutions in their efforts to address federal tax reform. Illinois recently introduced legislation to addback the new deduction for foreign-derived intangible income (a topic we’ve previously covered), and its Department of Revenue has issued its position on other aspects of federal reform. Oregon, after resolving a controversy between its senate and house, is about to pass legislation addressing deemed repatriation income and repealing its tax haven inclusion provisions.
Illinois Issues Guidance on Federal Tax Reform
On March 1, the Illinois Department of Revenue (Department) issued guidance explaining its position with respect to how various law changes made in the 2017 federal tax reform bill, known as the Tax Cuts and Jobs Act (Act), will impact taxpayers in Illinois.
While, for the most part, the pronouncement provides a cursory analysis of the provisions of the Act and a conclusory statement as to whether each provision will result in an increase or decrease in a taxpayer’s adjusted gross income (for individuals) or federal taxable income (for corporations), there are a few items that do warrant some specific mention.
With respect to Illinois’ treatment of the Act’s new international tax provisions, the Department provides some insight into treatment of deemed repatriated foreign earnings and global intangible low-taxed income (GILTI). For purposes of both the deemed repatriated foreign earnings and the GILTI, the Act provides that a taxpayer computes its taxable income by including an amount in income and taking a corresponding deduction to partially offset the inclusion. The Illinois guidance indicates that the inclusion in Illinois will be net, with both the income inclusion and the deduction taken into account in determining a taxpayer’s tax base. This is consistent with the provisions of the Illinois corporate income tax that provide that the Illinois tax base is a corporation’s “taxable income,” which is defined as the amount of “taxable income properly reportable for federal income tax purposes for the taxable year under the provisions of the Internal Revenue Code.” 35 ILCS 5/203(b)(1), (e).
Mitigating the tax impact of these provisions, the Department also takes the position that the amount included as deemed repatriated foreign earnings or as GILTI will be treated as a foreign dividend eligible for Illinois’ 100 percent dividend-received deduction. See 35 ILCS 5/203(b)(2)(O), (b)(2)(G). This rationale is in accordance with the provisions in the Illinois statute that provide a dividend-received deduction for dividends received or deemed received under Internal Revenue Code sections 951 through 965. Thus, because the deemed repatriated foreign earnings are included pursuant to section 965 and the new GILTI is included pursuant to section 951A, those amounts should both be dividends eligible for the dividend-received deduction.
In addition, the Department has specified that the new provision limiting the use of federal net operating losses (NOLs) in an amount equal to 80 percent of the taxpayer’s taxable income is a change that could provide an increased tax base or increased tax revenue to Illinois. Corporate taxpayers should not get confused, however. Illinois allows use of the federal NOL only for individuals. Corporate taxpayers, however, have to add back any federal NOL and then compute a separate NOL for purposes of the Illinois corporate income tax. Thus, neither the 80 percent limitation nor the change to unlimited carryforwards will impact the ability of a corporate taxpayer to use its NOL for purposes of the Illinois corporate income tax.
Nail Biting Success in Oregon on Tax Haven Repeal Following Federal Tax Reform
While drama surrounded Oregon’s legislation addressing aspects of federal tax reform, the end result provides clarity and relief for taxpayers with international affiliates. Oregon has now addressed the repatriation provisions of federal tax reform and is in the process of repealing its (hated) tax haven inclusion provision.
Oregon Senate Bill 1529-A addresses several elements of how the state will conform to federal tax reform. Oregon decided it needed to address reform rapidly because of the risk of a perceived windfall to taxpayers if the state did not change its existing dividend-received deduction statute. Absent the legislation, Oregon would have included both the repatriation addition and the deduction in its tax base and allowed its 80 percent dividend-received deduction against the gross, not the net. The adopted legislation changes this calculation. The legislation requires that amounts deducted for income repatriated under section 965 must be added back in calculating Oregon taxable income. This provision is added to ORS 317.267, the provision decoupling from the federal dividend-received deduction. The tax on the remaining amount would be due in year one, as there is no provision in the bill similar to the federal 8-year payment allowance. It is estimated that the state will receive approximately $160 million from the one-time deemed repatriation. Absent the change, the state would have lost $100 million.
The legislation provides additional relief from the tax on repatriated income. Oregon is one of the states that had adopted tax haven legislation, requiring income of the taxpayer’s affiliates incorporated in certain listed countries to be included in the taxpayer’s taxable income. ORS 317.716. As a result, Oregon may have already taxed some of the income now deemed repatriated. To alleviate any double taxation, new Section 33 in the bill allows a credit for taxes attributable to this income. The credit is limited to the lesser of the tax attributed to the repatriated income or the tax on the income included under ORS 317.716. Unused credits may be carried over five years.
The drama over passage of the bill revolved around a provision that repealed the tax haven inclusion provisions of ORS 317.716. The bill that passed the senate unanimously included the repeal of the tax haven provision. When it reached the house, however, Amendment –A9 removed the repeal. A hearing on the bill included testimony both for and against the repeal. Proponents argued that it was too soon to determine whether repeal was necessary and the tax haven provision should be maintained until the Department of Revenue completed a study to determine whether there was truly overlap between the tax haven inclusion and the GILTI provisions. McDermott provided written comments explaining why maintaining the tax haven provision was duplicative of the policy behind the new GILTI provision and would require complex computations to avoid double taxation when a taxpayer was subject to both GILTI and the tax haven inclusion. COST and the Tax Foundation also provided comments supporting the bill as passed by the senate that included the tax haven repeal language. The house ultimately passed a bill repealing the tax haven provisions, and the senate agreed in conference. The bill is awaiting the governor’s signature.
Under amendments to the bill, the Department of Revenue will have an opportunity to evaluate the efficacy of GILTI, but it is not clear whether the pending budget bill will provide funding for this study.
Please contact us to join McDermott’s multi-state coalition, the STAR Partnership, which will address state business tax ramifications raised by federal tax reform. Further information is available here.
On December 29, 2017, the Illinois Appellate Court issued a ruling reversing the decision of the Illinois Independent Tax Tribunal (Tribunal) in Waste Management of Ill., Inc. v. Ill. Independent Tax Tribunal, 2017 IL App (1st) 162830-U. This is the second appellate court to consider a Tax Tribunal ruling, and the first to overturn a decision of the Tribunal. The appellate court overturned the Tribunal’s grant of summary judgment in favor of the Illinois Department of Revenue (Department) and held that for the time periods at issue, the Motor Fuel Tax Law (Tax) (35 ILCS 505/1 et seq.) did not impose tax on compressed natural gas (CNG). In this case, Waste Management filed monthly returns reporting and paying the Tax on its usage of CNG. Following an amendment to a Department regulation that explicitly provided that CNG was subject to the Tax (see 86 Ill. Admin. Code § 500.200(c)), Waste Management amended its returns and sought a refund of Tax paid on CNG-powered vehicles for time periods prior to the amendment. The Department denied the refund claims, and Waste Management appealed the Department’s denial to the Tribunal. On the parties’ cross motions for summary judgement, the Tribunal found in the Department’s favor, on the basis that CNG was a taxable “motor fuel” under the Tax statutes. A copy of the Tribunal’s Order (Order) is linked here. Continue Reading Illinois Appellate Court Overturns Tax Tribunal Ruling for the First Time
The Illinois Department of Revenue (Department) has issued a proposed new administrative rule addressing the nexus implications for out-of-state retailers attending trade shows in Illinois. The proposed rule, linked here, reaffirms the Department’s long-standing position that all sales made at an Illinois trade show are subject to Illinois Retailers Occupation Tax and any applicable local taxes. In a move welcomed by taxpayers, the proposed rule goes on to delineate a “safe harbor” of activities that will not create nexus for out-of-state retailers with respect to their other Illinois sales.
Under the safe harbor provision, an out-of-state retailer’s presence at an Illinois trade show will not create nexus for its other Illinois sales if each of the following conditions is met:
- The retailer attends no more than two trade shows per calendar year;
- The retailer is physically present at the two trade shows for an aggregate total of no more than eight days during any calendar year; and
- Combined gross receipts from sales made at the two trade shows during any single calendar year do not exceed $10,000.
Yesterday afternoon, after months of wrangling and a marathon 4th of July weekend session, the Illinois House of Representatives voted to override Governor Bruce Rauner’s veto of Senate Bill (SB) 9, the revenue bill supporting the State’s Fiscal Year (FY) 2017-2018 Budget. The vote ended Illinois’ two year budget impasse and may avoid a threatened downgrade of Illinois bonds to junk status. The key tax components of the bill as enacted Public Act 100-0022 (Act) are as follows:
Rate increase. Income tax rates are increased, effective July 1, 2017, to 4.95 percent for individuals, trusts and estates, and 7 percent for corporations.
Income allocation. The Act contains a number of provisions intended to resolve questions regarding how income should be allocated between the two rates in effect for 2017.
- Illinois Income Tax Act (IITA) 5/202.5(a) provides a default rule, a proration based on the days in each period (181/184), for purposes of allocating income between pre-July 1 segments and periods after the end of June when rates increase. Alternatively, IITA 5/202.5(b) provides that a taxpayer may elect to determine net income on a specific accounting basis for the two portions of their taxable year, from the beginning of the taxable year through the last day of the apportionment period, and from the first day of the next apportionment period through the end of the taxable year.
Wrapping Up May – and Looking Forward to June
Our May 2017 blog posts are available on our Inside SALT blog, or read each article by clicking on the titles below. To receive the latest on state and local tax news and commentary directly in your inbox as they are posted, fill out the form on the right to subscribe to our email list.
In two recent General Information Letters (GILs), the Illinois Department of Revenue (Department) reaffirmed that computer software provided through a cloud-based delivery system is not subject to tax in Illinois. The Department announced that while it continues to review cloud-based arrangements and may determine they are taxable at some point, any decision to tax cloud-based services will be applied prospectively only.
May 24, 2017: Illinois Bills to Watch
Just days away from the May 31 close of its regular legislative session, the Illinois General Assembly has yet to enact the comprehensive series of tax and budget reforms that were first proposed by the Illinois Senate leadership late last year. On May 23, the Senate passed a modified version of Senate Bill (SB) 9, the tax proposal we described in a previous post, without any Republican support, but it seems likely that Illinois’ Republican Governor will veto the legislation.
Looking forward to June:
June 8, 2017: Chicago – Tax in the City®: A Women’s Tax Roundtable
McDermott Will & Emery’s Tax in the City® network will host a CLE/CPE discussion focusing on current developments in professional responsibility and ethics, including a discussion focused on ethical issues arising out of our increasing access to connectivity.
McDermott Will & Emery’s New York State and Local Tax group presents a half-day program that will discuss a wide range of topics, including New York developments such as false claims and budget provisions, Nexus updates and developments in digital taxation, and new developments in apportionment, transfer pricing and unclaimed property.
In two recent General Information Letters (GILs), the Illinois Department of Revenue (Department) reaffirmed that computer software provided through a cloud-based delivery system is not subject to tax in Illinois. The Department announced that while it continues to review cloud-based arrangements and may determine they are taxable at some point, any decision to tax cloud-based services will be applied prospectively only. The GILs also recognize Quill’s physical presence requirement for Commerce Clause nexus. Continue Reading Illinois Department of Revenue Reaffirms Cloud-Based Services Not Taxable
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.