Archive for the ‘Income Tax’ category

Don’t Delay – Pennsylvania’s 2017 Tax Amnesty Program Starts Today

April 21, 2017

By Jennifer Weidler Karpchuk

As of today, April 21, 2017, Pennsylvania’s 2017 Tax Amnesty Program has officially commenced.  Those individuals with potential Pennsylvania tax liabilities should consider taking advantage of the program, which is slated to run through June 19, 2017.  During those sixty (60) days, the Pennsylvania Department of Revenue will waive all penalties and half of the interest for anyone who participates.  For more information, see our previous blog post hereContact us to find out if amnesty is the right choice for you.

Start of Pennsylvania 2017 Tax Amnesty Program Draws Near – Do You Qualify?

February 24, 2017

By Jennifer Weidler Karpchuk

In less than two (2) months, Pennsylvania’s 2017 Tax Amnesty Program will commence.  Those individuals with potential Pennsylvania tax liabilities should consider taking advantage of the program, which is slated to run from April 21, 2017 through June 19, 2017.  During those sixty (60) days, the Pennsylvania Department of Revenue (“Department”) will waive all penalties and half of the interest for anyone who participates.

The program applies to delinquencies existing as of December 31, 2015 – whether or not the delinquency is known to the Department.  The litany of taxes eligible for the program includes:

  • Agriculture Cooperative Tax;
  • Bank and Trust Company Shares Tax;
  • Capital Stock or Foreign Franchise Tax;
  • Cigarette Tax;
  • Corporate Loans Tax;
  • Electric Cooperative Tax;
  • Employer Withholding Tax;
  • Financial Institutions/Title Insurance Company Shares Tax;
  • Fuel Use Tax;
  • Gross Premiums Tax;
  • Gross Receipts Tax;
  • Hotel Occupancy Tax (including state administered 1% local Hotel Occupancy Tax for Philadelphia and Allegheny);
  • Inheritance and Estate Tax;
  • Liquid Fuels Tax;
  • Malt Beverage Tax;
  • Marine Underwriting Profits Tax;
  • Motor Carriers Road Tax, for IFTA vehicles, PA portion only;
  • Motor Vehicle Carriers Gross Receipts Tax;
  • Mutual Thrift Institutions Tax;
  • Oil Company Franchise Tax;
  • Parimutuel Wagering and Admissions Tax;
  • Personal Income Tax;
  • Public Transportation Assistance (“PTA”);
  • Public Utility Realty Tax;
  • Realty Transfer Tax, including Local Realty Transfer Tax;
  • Sales and Use Tax, including Local Sales and Use Tax for Philadelphia and Allegheny;
  • Surplus Lines Tax;
  • Unauthorized Insurance Tax; and
  • Vehicle Rental Tax.

Notably, the 2017 Tax Amnesty Program does not include Unemployment Compensation (which is administered by the Department of Labor and Industry), nor does it include any tax administered by another state, local government, or the Federal government.

Pursuant to the program, the taxpayer is responsible for paying the principal tax due, plus one-half interest.  The Department will, in turn, rescind any liens or other enforcement actions for that debt; waive all penalties associated with the debt; waive one-half interest; and waive any fees (ex. lien filing fees or collection agency fees).

Along with the payment for all taxes and one-half of the interest, all missing tax returns or reports must be filed no later than June 19, 2017.  However, a taxpayer with unknown liabilities reported and paid pursuant to the Tax Amnesty Program is eligible for a limited look-back period whereby the taxpayer will not be liable for any taxes of the same type due prior to January 1, 2011.

Those taxpayers who are eligible for the 2017 Tax Amnesty Program, but do not participate will be subject to a five-percent (5%) non-participation penalty.  Generally speaking, individuals, businesses and other entities with state tax delinquencies as of December 31, 2015 (whether known or unknown to the Department) are eligible to participate in the program.  However, any taxpayer who participated in the Department’s 2010 Tax Amnesty Program is ineligible to participate in the 2017 program.  Taxpayers who have entered into Voluntary Disclosure Agreements with the Department are likewise ineligible to participate.  Nevertheless, taxpayers who have entered into deferred payment agreements with the Department are eligible for the 2017 Tax Amnesty Program.  Notably, a taxpayer who applies for tax amnesty forfeits all future appeal rights for liabilities paid through the program.

Business taxpayers may request a statement of account that shows all liabilities by visiting e-TIDES at http://www.etides.state.pa.us.  Individual taxpayers may review account information, including all liabilities, by visiting the Personal Income Tax e-Services Center at http://www.doreservices.state.pa.us.  Please contact us if you need assistance in determining whether you qualify for the 2017 Tax Amnesty Program and whether participation in the program is the right choice for you.

U.S. Supreme Court Extends Time to File Petitions for Certiorari in Ohio Commercial Activity Tax Case

February 22, 2017

By Jennifer Weidler Karpchuk

By Order dated January 31, 2017, the United States Supreme Court granted Crutchfield Corporation (“Crutchfield”) an extension of time until April 16, 2017 to file a petition for certiorari for what could be a precedential decision if the Court decides to grant it. See Crutchfield Corp. v. Joseph W. Testa, Tax Commissioner of Ohio (U.S. Supreme Court Docket No. 16A774).  During November 2016, the Ohio Supreme Court ruled for the State, upholding its commercial activity tax (“CAT”). See Crutchfield Corp. v. Joseph W. Testa, Tax Commissioner of Ohio, 2016 WL 6775765 (2016). The CAT is a gross receipts tax that replaced Ohio’s corporate income tax. Pursuant to the CAT, a company with more than $500,000 of Ohio sales has nexus with the state such that it is subject to the tax.

Crutchfield appealed from imposition of the CAT upon revenue it earned from sales of electronic products within Ohio. Crutchfield is based outside of Ohio, maintains no employees in Ohio, and maintains no facilities in Ohio. The sole business that Crutchfield conducts in Ohio is via the shipment of goods from outside the state to consumers within the state using the United States Postal Service or common-carrier delivery services. Crutchfield contested the issuance of CAT assessments contending that substantial nexus within a state is a necessary prerequisite to imposing the tax pursuant to the United States Constitution’s dormant Commerce Clause and that Crutchfield lacked substantial nexus with Ohio since it did not maintain a “physical presence” within the state.

Responding, the State advanced two (2) arguments. First, it argued that the Commerce Clause does not impose a physical presence requirement and, thus, the $500,000 sales-receipts threshold set forth by the statute satisfies the Commerce Clause’s requirement of substantial nexus. Second, the State argued that assuming arguendo the Commerce Clause does impose a physical presence standard, Crutchfield’s computerized connections with Ohio consumers involves the presence of tangible personal property in Ohio and the presence of that property on computers located in the state constitutes physical presence. The Ohio Supreme Court found in favor of the State based upon its first argument and therefore it did not address the State’s secondary argument.

At first glance, the Ohio Supreme Court’s decision stands in stark contradiction to the United States Supreme Court’s decision in Quill v. North Dakota, 504 U.S. 298 (1992), which held that for a state to subject a company to a use tax collection obligation, it must have a physical presence in the taxing state. However, the Ohio Supreme Court distinguished Quill in a number of ways. Primarily, the tax at issue in Quill was a sales and use tax, whereas the tax at issue in Crutchfield was a business privilege tax. The Ohio Supreme Court found that Quill’s holding does not apply to business privilege taxes. This is not the first time a court has drawn such a distinction. See Couchot v. State Lottery Comm., 659 N.E.2d 1225 (Ohio 1996) (“There is no indication in Quill that the Supreme Court will extend the physical-presence requirement to cases involving taxation measured by income derived from the state”); Capital One Bank v. Commr. of Revenue, 899 N.E.2d 76 (Mass. 2009) (declining to “expand the [United States Supreme] Court’s reasoning [in Quill] beyond its articulated boundaries” and upholding imposition of tax on out-of-state banks in relation to in-state servicing of credit cards based on the volume of business conducted and profits realized); MBNA Am. Bank, N.A. v. Indiana Dept. of State Revenue, 895 N.E.2d 140 (Ind. Tax 2008) (“Based on [Quill] and a thorough review of relevant case law, this Court finds that the Supreme Court has not extended the physical presence requirement beyond the realm of sales and use taxes”); KFC Corp. v. Iowa Dept. of Revenue, 792 N.W.2d 308 (Iowa 2010) (“We * * * doubt that the United States Supreme Court would extend the ‘physical presence’ rule outside the sales and use context of Quill ”).

The United States Supreme Court has not addressed the physical presence nexus standard issue since its landmark decision in Quill twenty-five (25) years ago. Many argue that the Supreme Court in Quill could not and did not anticipate the internet boom and, with it, the vastly different way that business would be conducted. Since then, the Court has denied certiorari for every case since Quill where nexus was at issue, e.g., Tax Com’r of State v. MBNA America Bank, N.A. 640 S.E.2d 226 (W. Va. 2006), cert. denied, 551 U.S. 1141 (2007); Capital One Bank v. Commissioner of Revenue, 9 N.E.2d 76 (Mass. 2009), cert. denied, 557 U.S. 919 (2009); Geoffrey, Inc. v. South Carolina Tax Com’n, 37 S.E.2d 13 (S.C. 1993), cert. denied, 510 U.S. 992 (1993); Lanco, Inc. v. Director, Div. of Taxation, 908 A.2d 176  (2006), cert. denied, 551 U.S. 1131 (2007); see also, Direct Marketing Ass’n v. Brohl, 135 S.Ct. 1124, 1134-1135 (2015) (Kennedy, J., concurring) (“The Internet has caused far-reaching systemic and structural changes in the economy, and, indeed, in many other societal dimensions. Although online businesses may not have a physical presence in some States, the Web has, in many ways, brought the average American closer to most major retailers. A connection to a shopper’s favorite store is a click away—regardless of how close or far the nearest storefront…Today buyers have almost instant access to most retailers via cell phones, tablets, and laptops. As a result, a business may be present in a State in a meaningful way without that presence being physical in the traditional sense of the term. Given these changes in technology and consumer sophistication, it is unwise to delay any longer a reconsideration of the Court’s holding in Quill.”). If the United States Supreme Court grants Crutchfield’s petition for certiorari, we might finally receive an answer to Quill’s application in the age of the internet.

Weekly Update for 3/16

March 19, 2012

 by Jennifer Weidler

ARIZONA

Arizona Court Holds that Cooperative Direct Mail Advertising is Not Subject to Use Tax

The Arizona Appeals Court held that cooperative direct mail advertising was not subject to the state’s use tax, since the dominant purpose of the taxpayer’s business was to obtain nontaxable design, mailing and printing services, and not tangible personal property.

INDIANA

Indiana Legislature Passes Bill to Phase Out Inheritance Tax

The Indiana General Assembly has passed legislation, SB 293, which will phase out the state’s inheritance tax, gradually reducing the rate until it hits zero during 2022.   The phase out would be retroactive to January 1st.

KANSAS

Kansas House Approves Bill to Alter State Income Tax Structure

The Kansas House approved legislation, SB 177, which would make several modifications to the state’s income tax structure.  The legislation includes changes to the state’s sales tax exemption and business income exemption provisions, formulaic individual income tax rate reductions, Rural Opportunity Zone expansions, tax credits and more.

MARYLAND

Maryland Senate Approves “Amazon” Law

The Maryland Senate has approved legislation, SB 523, which includes an “Amazon” law and an income tax increase.  The bill would add three additional tax brackets and rates and would impose a flat tax on those filers making more than $500,000.  The bill also contains affiliate nexus/”Amazon” language.

MICHIGAN

Michigan Court of Appeals Finds Taxpayer Could Not Collaterally Attack Underlying Assessment

The Michigan Court of Appeals held that a taxpayer could not appeal a use tax assessment, as the sole shareholder and responsible corporate officer of a retailer, where the taxpayer’s appeal was untimely and where he was statutorily precluded from collaterally attacking the underlying assessment.

NEW JERSEY

New Jersey Legislature Passes “Amazon” Law

The New Jersey Assembly has passed legislation, A 2608, which would give Amazon.com a temporary sales tax collection exemption in exchange for job creation.  Pursuant to the bill, those retailers that make capital investments of at least $130 million and create at least 1,500 full-time jobs in the state would not have nexus until July 1, 2013.

New Jersey Legislature Passes Bill Expanding State’s Nexus Rules

The New Jersey Assembly passed legislation, A 2608, which would expand the state’s nexus rules by creating nexus for sellers that use in-state affiliates to perform activities to aid in business development or to maintain a New Jersey business market.  Moreover, the bill would create nexus for out-of-state businesses with distribution centers or subsidiaries in the state.

PENNSYLVANIA

Philadelphia DOR Releases 2012 KOZ Booklet

The Philadelphia Department of Revenue has released its 2012 Philadelphia Keystone Opportunity Zone Programs Booklet, which provides guidance on calculations, credits, two-factor apportionment formula, and more.

TENNESSEE

Tennessee General Assembly Approves Bill to Exempt Amazon from Tax

The Tennessee General Assembly passed legislation, HB 2370, which would temporarily exempt Amazon.com from collecting state sales tax.  Pursuant to the legislation, Amazon.com will build new facilities in the state and create thousands of jobs, in exchange for sales tax exemption through January 1, 2014.  The bill is now awaiting the Governor’s signature.

TEXAS

Texas Announces Amnesty Program Slated for June 2012

Texas has announced that it will offer a tax amnesty program for businesses, during which it will waive all interest and penalties for taxpayers that file or amend delinquent tax reports and pay all taxes due.  Reports originally due prior to April 1, 2012 are eligible, and the amnesty program will run from June 12 through August 17, 2012.

2011 Year-End SALT Update

January 6, 2012

 by Jennifer Weidler

ARIZONA

Arizona DOR Finds Nexus for Sales Representatives Providing Customer Support and Training

Of course it had nexus: Arizona DOR rules that corporation has substantial nexus due to presence of sales representatives who provide customer support and training.

(more…)

Weekly SALT Update Nov. 7, 2011

November 7, 2011

 By Paul Masters with contributions by Jennifer Weidler in Chamberlain’s Philadelphia office.

State Regulations and Public Notices

California Board of Equalization issues a proposal to amend the definition of “retailers engaged in business in this state,” in conformance with AB 155. It will take effect either September 15, 2012 or January 2013. The effect of this change would be to expand the requirement for retailers to register with the Board and remit California use taxes, or to be subject to payment of these use taxes on such failure to remit.

Utah State Tax Commission notifies public of proposed rule change implementing three-factor formula for apportionment It also requires services to be “inUtah” if the benefit inUtah exceeds that received in any other state, and sets forth rules for the apportionment of income from intangible property.

Indiana Department of Revenue issues information bulletin on application of sales tax to restaurants, and a dealer must pay sales tax on the value of cars not used by sales staff, services to setup rented property are included as taxable as part of the rental receipts, cleaning agents do not qualify for manufacturing exemption, and no public transportation exemption for company that did not document sale of trucking services for hire – listed wrong on invoice. And in an expanded discussion, the DOR rules a manufacturer must pay use tax on HVAC equipment essential for manufacturing operations.

And then there were seven: Ohio revises its requirement for Ohio car dealers to collect Ohio sales tax on non-resident purchases of cars to be taken out of state, with collection required for seven states.

Colorado DOR revises FYI detailing responsibility of taxpayer to pay sales tax on vending machine receipts. Colorado DOR revises FYI 62 regarding rules on collecting local sales tax to be remitted to the state. (more…)

Weekly SALT Update – Nov. 3, 2011

November 3, 2011

 By Paul Masters with contributions by Jennifer Weidler in Chamberlain’s Philadelphia office.

State DOR Letters and Policy Rulings

But where’s your paper … New Mexico hearings officer rules that a taxpayer does not qualify for a gross receipts tax deduction merely because the taxpayer did not possess any nontaxable transaction certificates as required by NMSA 1978, Section 7-9-43 (2001). Other states have similar requirements for certificates, but merely because they are “required” does not necessarily mean the courts agree.

Virginia Tax Commissioner rules that an egg tray washer was not “processing” as defined by Virginia Code § 58.1-609.3(2)(iii) as it was used between the processing to maintain cleanliness. Even though the equipment was necessary to operate the actual processing, the equipment itself was not involved in the processing of the eggs for sale. Similarly, a “honey wagon” that was used to collect the bird droppings and then spray the droppings as fertilizer on fields was not part of the processing, even though the droppings came from the waste resulting from the cleaning of the eggs. Finally, the Commissioner rules that pit fans used to dry bird droppings that are then sold to farmers as fertilizer are not processing, but do qualify for the agricultural exemption at Virginia Code § 58.1-609.2(1). Different result should apply in Texas, as drying an item is a physical change, thus processing.

State Regulations and Public Notices

North Carolina updates its taxability matrix for the SSUTA.

The New Jersey Division of Taxation has published answers to frequently asked questions relating to the NJ-1040 e-filing mandate. For the 2011 taxable year forward, tax preparers expecting to prepare eleven (11) or more New Jersey individual income tax returns must electronically file those returns for which an electronic filing option is available.  Those returns not included in the e-filing mandate are New Jersey nonresident, part-year resident, amended and prior year returns.

The Connecticut Department of Revenue issued an Informational Publication (IP 2011(15)) answering frequently asked questions regarding the Connecticut individual use tax.  The Informational Publication addresses changes in legislation affecting Connecticut use tax filing and payment obligations, which occurred during 2011.

Starting January 1, 2011, those tax preparers filing more than five (5) returns per year with New York are now required to e-file.  The New York Department of Taxation may impose a penalty on both the preparer and the taxpayer for a failure to electronically file returns.  Additionally, beginning with the return due on March 20, 2012, sales tax returns for annual filers must be filed electronically.

State Legislative Affairs

Economic nexus comes into play again. Michigan signs into law SB 650 which defines nexus for a financial institution as any of the following: (i) physical presence, (ii) Michigan source receipts of at least $350,000 or (iii) has an ownership interest in a flow through entity.

Judicial and Administrative Decisions and Pleadings

A coalition of public school districts in Texas files suit against the State of Texas on constitutional grounds, arguing that the state tax system funding public schools is unfair, and does not provide the schools with sufficient funding to provide a free education to students.

In another school funding case, a federal district court rules against Lynch, who argued that Alabama’s property tax rates, among the lowest in the country, violate the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. How? The tax scheme limits the ability of rural counties to tax wealthy white landowners. The opinion is looooong – really long. In the end, the court focused on its view that the tax structure was based on economics, not race, and therefore passed muster under the rational basis standard.

On further thought … Washington Court of Appeals reverses its decision on remand and finds that a hospital was not entitled to an exemption for amounts collected and paid to a third-party service provider. In its initial decision, the Court of Appeals determined that the payments did not qualify as gross income subject to business and occupation (B&O) tax. But the Supreme Court reversed the Court of Appeals’ ruling in Washington Imaging Services, LLC v. Wash. Dept. of Rev., 252 P3d 885 (Wash. 2011). Because there was no independent obligation for its patients to pay the third-party service provider for services rendered, the hospital did not make payments on behalf of its patients as their agent, the payments made constituted gross income. The exemption under Wash. Admin. Code § 458-20-111 did not apply as they payments were not customary reimbursements or advances made in the ordinary course of business.

NY Division of Tax Appeals rules against the estimated assessment made by an auditor for sales tax. While the taxpayer lacked the records necessary to avoid an estimated audit, the auditor made assumptions not based on reality, used information limited to only one quarter and extrapolated over a multi-year period. Thus the assessment was arbitrary.

Illinois Court of Appeals affirms decision to use income valuation approach because the sales comparison method provided unreliable. The government had used comparisons that included sales resulting from Department of Justice divestiture orders. Such sales necessarily are not defined as arm’s length transactions.

The Texas Court of Appeals for the 14th District (Houston) rules that Hotels.com and other similar online companies need not remit occupancy tax on the full amount received by online customers for the purchase of hotel space through the web site. Rather, the hotel occupancy tax is levied solely on the amount received by the hotel.

Other Documents

None noted.