Jurisdiction and Nexus: The latest interpretations by the states and the Multistate Tax Commission of what constitutes nexus for state income tax purposes. Efforts by the MTC to revise its Statement on Public Law 86-272. State tax treatment of passive investment companies, financial institutions, service companies, credit card and Internet activities. Effect of having employees work from home, officers residing in-state, deliveries in company and third-party trucks, leased or mobile property, in-state affiliates, and other in-state activities. Impact of voluntarily registering to do business in a state. The growing use of economic nexus standards and their application in the income tax arena. Potential effect of the Wayfair decision. Planning ideas for minimizing state income taxes.
The Unitary Concept: An analysis of current cases interpreting the extent of a state’s authority to apply the unitary concept in its many forms, e.g., domestic, worldwide, water’s edge combination. Unique statutory and regulatory definitions. The MTC approach. The latest states to adopt combined reporting. Application of the unitary concept to non-income taxes. Structuring business to best take advantage of unitary reporting.
Business and Nonbusiness Income: Recent interpretations of the business/nonbusiness distinction by UDITPA and non-UDITPA states before and after MeadWestvaco. Determining “operational significance.” Using the functional, transactional, and unitary tests to minimize state taxation of short and long-term investment income, dividends, capital gains, rents, royalties, 338(h)(10) income, and other intangibles. Effect of operating under centralized cash management, through divisions, partnerships, S corporations, LLCs and other special situations on a business/nonbusiness determination. Treatment of complete and partial liquidations. Legislative developments; update on MTC efforts to amend the UDITPA definition of business income.
Tax Base & Conformity Issues, including State Tax Consequences of Federal Tax Reform: Effect of the Tax Cuts and Jobs Act of 2017, the CARES Act of 2020, the Consolidated Appropriations Act, 2021 and the Inflation Reduction Act of 2022 on the state income tax base, including general IRC conformity considerations, application by states of federal transition tax, anti-deferral rules, interest expense limitation, immediate expensing, qualified business income deduction, qualified improvement property, paycheck protection program loan forgiveness and expense deductibility, and more. Planning opportunities and developments in state tax treatment of bonus depreciation, federal and state taxes, dividends, foreign source income, federal and municipal obligations, net operating losses, and related party expenses.
Cost of Performance Versus Market Sourcing and Other Apportionment Issues: Characterizing business activities for purposes of apportionment. Does the company sell tangibles, intangibles, services, mixed products, or a combination? Discussion of sourcing issues and methods, including cost of performance and market sourcing. Treatment of installment, intercompany, drop shipment and dock sales; investment activities, service providers and specialized industries. Recent challenges to throwback and throwout rules, including the latest in the Joyce/Finnigan controversy and the Pfizer/Whirlpool case. The increasing adoption of single factor sales formulas and what it means to multistate taxpayers. Proving distortion to obtain Section 18 alternative apportionment.
Pass-Through Entities and Their Owners: Nexus, unitary, apportionment, tax base, conformity issues as applied to pass-through entities and their owners. Hot topics in this area such as how to handle non-resident owner withholding and coping with the various state tax reforms designed to reach the income of pass-through entities.
Ethical and Procedural
Issues: Ethical and strategic dilemmas involved in conducting state income tax audits and running the state tax department, including application of ethical standards set by the AICPA, ABA, state CPA societies and bar associations. Determining the availability of refunds and the associated procedural requirements, such as payment under protest and “pay to play.” Writing a protest; alternative dispute resolution; the right to an administrative appeal. Statute of limitations issues, including the effect of RARs, waivers, settling with the IRS, and choosing the date from which the limitations period should be measured. Ethical issues related to working from home and the use of technology in managing the state income tax function.
Session: Practical application of the concepts