Summing It Up

The latest Freed Maxick State and Local Tax Update contains many must-read items from around the country.

Supreme Court to review Quill Corp v. North Dakota’s presence

On Jan. 12, the U.S. Supreme Court agreed to hear South Dakota v. Wayfair, Inc., South Dakota’s challenge to Quill Corp. v. North Dakota (1992), which ruled that retailers are not required to collect sales tax if they do not have a physical presence in the state.

The South Dakota Supreme Court in Wayfair, Inc. ruled against a state law that requires out-of-state retailers to collect and remit sales taxes on internet purchases because it conflicted with the U.S. Supreme Court ruling in Quill Corp.

The review could impact an issue under discussion in many states. Vermont has introduced legislation that would require remote vendors and marketplace facilitators to elect to collect sales tax or adhere to certain notice and reporting requirements. In Minnesota, legislation would require unregistered remote retailers or their marketplace providers to collect and remit sales and use tax when the marketplace provider has a physical presence in the state.

States looking to preserve SALT deductions for high-income taxpayers

High-tax states have started brainstorming how to circumvent the $10,000 SALT deduction cap under tax reform. California legislation has been filed to allow residents to make uncapped charitable contributions in lieu of taxes. New York is exploring implementing an additional employer-side payroll tax on W2 employees since employers can still deduct these taxes, while eliminating state income tax on employees.

Pennsylvania penalties for non-participants of tax amnesty

The Pennsylvania Department of Revenue will be mailing 5% penalty assessments to delinquent taxpayers who failed to participate in the state’s 2017 tax amnesty program.

March applications for California Competes Tax Credit

Applications will be taken March 5 through March 26 for the California Competes Tax Credit (CCTC) for businesses that want to locate or stay in the state. For fiscal 2017-2018, $230.4 million in credits is available for allocation during the application periods. Businesses with less than $2 million in worldwide gross receipts and taxpayers that plan to increase employee growth in areas of High Poverty or High Unemployment are given preferential treatment. The minimum credit is $20,000.

Texas announces state franchise and sales and use tax amnesty

The Texas amnesty program runs from May 1 to June 29. The program will apply to periods prior to Jan. 1, 2018, and only include state franchise and sales and use taxes. The program will not apply to taxpayers under audit, IFTA taxes, PUC Gross Receipts assessments, Local Motor Vehicle Tax and Unclaimed Property payments.

States’ business tax rates drops

Connecticut’s 7.5% corporate rate remains the same, but the large business surtax (total income exceeding $100 million or part of a combined unitary group) has been reduced to 10% from 20%; the net effect of this change is a reduction of the top marginal rate to 8.25%. New Mexico’s top corporate tax rate has also dropped, to 5.9% from 6.2%. New Hampshire’s Business Tax Profit will be decreased, to 7.9% from 8.2%, and the state’s Business Enterprise Tax will decrease to 0.675% from 0.72%, both for tax periods ending on or after Dec. 31, 2018.

Connect with the State and Local Tax Experts at Freed Maxick

If you have any questions, concerns or issues about your SALT situation, the SALT experts at Freed Maxick are standing by to help.

Download our SALT updates here or contact a member of the Freed Maxick State and Local Tax Services (SALT) Team for a no cost consultation.

Complex Qualification Rules and Calculations Lie Ahead

The Tax Cuts and Jobs Act has introduced into tax law the opportunity for an individual taxpayer to take a 20% deduction related to their qualified trade or business income from a partnership, S-corporation, or sole proprietorship. Determining this deduction is not as easy as just multiplying your qualified business income by 20% because there are limitations that must be considered when calculating your income deduction.

What’s Not Included in the Act’s Definition of a Qualified Trade or Business?

First, it is important to understand what is not included in the definition of a qualified trade or business.  

Qualified trades or businesses do not involve the performance of services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, and any trade or business where the principal asset of the business is the reputation or skill of one or more of its employees. The Tax Cuts and Job Act specifically includes engineering and architecture services as qualified trades or businesses.  

However, if your business is excluded under this provision, you still may qualify for benefits if your taxable income is below the thresholds defined below.

Limitations on the 20% Pass-Through Deduction

In general, you can deduct the lesser of: 20% of taxable income or 20% of the qualified business income (QBI), defined as the net amount of qualified items of income, gain, deduction, and loss with respect to the qualified trade or business. Qualifying items are those that were taken into account when determining taxable income for the year and relate to a trade or business within the United States.

Wage limitations on the qualified business income deduction will apply when your taxable income exceeds the threshold amount of $157,500 ($315,000 in the case of a joint return). The limitation is fully phased in when your taxable income is the threshold amount plus $50,000 ($100,000 in the case of the joint return).

The 20% deduction is limited to the greater of: 50% of the W-2 wages related to the qualified business or the sum of 25% of W-2 wages with respect to the qualified business plus 2.5% of the unadjusted basis of all qualified property related to the qualified business. These limitations only affect you if your taxable income is over the threshold amount. When the wage limitation is fully phased in, your qualified business income will be the lesser of: 20% of your qualified business income, 20% of taxable income, or the greater of (1) 50% of W-2 wages or (2) 25% of W-2 wages plus 2.5% of the unadjusted basis of qualified property with respect to the qualified trade or business.  

Three Examples of Calculating a Qualified Business Income Deduction

Example 1: assume you file a joint tax return, have taxable income of $420,000, and qualified business income of $75,000.  

Your share of W-2 wages related to the qualified business is $20,000. Taxable income has caused the wage limitation to fully phase in, as a result, the qualified business deduction will be the lesser of the following:

This calculation becomes slightly more complicated when your taxable income falls within the phase in limits of $157,500 - $207,500 ($315,000 - $415,000 in the case of a joint return). When 50% of the W-2 wages are greater than 20% of the qualified business income, there is excess qualified business income. In this case, a wage limit percentage will need to be calculated by reducing your taxable income by the threshold amount divided by $50,000 ($100,000 in the case of a joint return). The excess qualified business income is then multiplied by the wage limit percentage to determine the qualified business income limit. The qualified business income deduction is then found by reducing 20% of the qualified business income by the qualified business income limit.

Example 2: assume you file a joint tax return, have taxable income of $400,000, and  qualified business income of $75,000.  

Your share of W-2 wages related to the qualified business is $20,000.  Since taxable income is over the threshold amount you will be subject to a wage limitation. The qualified business deduction would be calculated as follows:

Calculation of the Wage Limit:

As stated above, the limitation based on W-2 wages and capital begins when your taxable income is above the threshold amount of $157,500 ($315,000 in the case of a joint return). This limitation is the greater of (1) 50% of W-2 wages related to the qualified business or (2) 25% of W-2 wages related to the qualified business plus 2.5% of the unadjusted basis of qualified property related to the qualified business. Qualified property is tangible property that is subject to depreciation.  

Example 3:  assume you are filing a joint return, have taxable income of $450,000, qualified business income of $80,000, your share of qualified property related to the qualified business is $100,000, and and there are no W-2 wages.  

Since taxable income is over the threshold amount you will be subject to the greater of the wage or wage and capital limitation.  

The wage limit is the greater of the following:

or

It is important to note that the qualified business income deduction is determined by looking at the facts of each entity separately. If you invest in more than one pass-through entity, the qualified business income deduction will be determined on an entity by entity basis.

Freed Maxick’s Tax Team Can Help You Cut Through Tax Reform Complications

Determining your qualified business income pass-through deduction can become very complicated.

Not only are you subject to various limitations, you must be sure your investment is included in the definition of qualified service trade or business. Although doing the analysis and calculating your QBI deduction can be tricky, our tax professionals are available for a no cost review of your situation.

To set up an appointment with the Freed Maxick tax team, call us at 716.847.2651 or click here to schedule an appointment, today.

For more insight, observations and guidance on the new Tax Cuts and Jobs Act, visit our Tax Reform webpage.

Connecticut announced it is launching the CT Fresh Start, an amnesty program for all eligible taxes administered by the Department of Revenue Services (DRS).  The program started on October 31, 2017 and runs through through November 30, 2018. 

Connecticut is allowing eligible taxpayers to enter into a CT Fresh Start Agreement during this time by completing a simple online application.  Taxpayers will only have to pay the tax due and ½ the interest at the time of the application filing.  The state will waive all penalties and the other half of the interest that is due. 

And the best part about the program?  No returns are actually required to be filed!

Connecticut Tax Amnesty for Both Personal and Business Tax Delinquencies

• All qualifying delinquent taxes due and payable as of December 31, 2016 that are unreported or underreported are eligible. The qualifying taxes may be either personal or business taxes and include all taxes administered by the DRS (except for the taxes imposed under chapter 222 (IFTA), such as:
• Income tax,
• Business entity tax,
• Sales and use tax,
• Withholding tax,
• Corporation business tax, and
• Gift tax

Note that the amnesty program  does not apply to local property taxes, payroll taxes administered by the CT Department of Labor, fees imposed by the Secretary of State, or taxes owed to the federal government.

What’s Not Eligible for Amnesty

Taxpayers who have received prior communications from the Department of Revenue Services for any tax type and period, such as a bill, are currently under audit, are party to a closing agreement with DRS, have made an offer of compromise that has been accepted by DRS, have protested a determination of an audit, or who are a party to litigation against the Commissioner, are not eligible under this program for that particular tax liability.  However, taxpayers may be eligible to resolve other tax liabilities through the program.

More Good News: Limited Look Back Period

Another  great feature of the CT Fresh Start program is that it offers a limited look-back period.  

That means that while normally, there is no limit to how many years the DRS can go back to assess tax, penalties and interest on any return that was not filed, under the CT Fresh Start, the taxpayer will only be required to “look-back” and report the tax on just three years of unfiled returns.  If the taxpayer complies with the terms of their agreement, all liabilities for the applicable taxes prior to the three year look-back will be abated.

In order to qualify for the limited look-back period, the taxpayer must have never been registered or filed a return for that tax type. Any taxpayer that believes they qualify for a limited look-back period, must call DRS prior to applying for CT Fresh Start.

Following the CT Fresh Start program, the taxpayer is required to be compliant with any tax return and payment for the three-year period after the date of the CT Fresh Start application. If the taxpayer does not comply with the CT Fresh Start agreement, the DRS may reinstate all applicable penalties and interest for the taxable periods covered by the CT Fresh Start agreement.  

Freed Maxick Can Help You with the Connecticut State Tax CT Fresh Start Program

So if you are looking for a “fresh start”, our state and local tax professionals can assist you with getting started with the application and help you navigate through the process towards becoming compliant with Connecticut taxes.

The latest Freed Maxick State and Local Tax Update contains a number of must-read items from around the country.

Mississippi economic nexus standard: The Mississippi Department of Revenue has adopted an economic nexus standard for sales and use tax purposes, effective Dec. 1, 2017. Sellers who lack a physical presence in the state will be required to collect and remit use tax on sales of tangible personal property and digital goods if those sellers have a substantial economic presence in in the state. Substantial economic presence exists if a remote seller “purposefully or systematically exploits the Mississippi market” and made sales into the state exceeding $250,000 during the prior twelve months.

California sales factor throwback rule: The state’s Franchise Tax Board has provided guidance with an example of how the state’s sales factor “throwback” rule is applied to a California located taxpayer selling tangible personal property in multiple states, including states the company is filing gross receipts or franchise tax returns. Sales are subject to throwback if the property is shipped from a location in California and the purchaser is the U.S. government or the taxpayer is not taxable in the purchaser’s state. A taxpayer is considered taxable in another state if subject to net income tax, franchise tax measured by net income, franchise tax for the privilege of doing business or a corporate stock tax. 

Pennsylvania NOL carryovers, remote seller rules, nonresident withholding:

Pennsylvania removed the $5 million cap on net operating loss (NOL) deductions and increased the percentage to 35% of taxable income in 2018 and 40% for 2019 and beyond. The state also made a rule effective March 1 that marketplace sellers, facilitators or referrers and certain remote sellers with aggregate Pennsylvania sales of $10,000 or more in the previous calendar year must elect to collect and remit Pennsylvania sales tax or comply with new notice and reporting requirements. Finally, effective Jan. 1, 2018, the state requires entities making rent and royalty payments on Pennsylvania property to nonresidents and payments to out-of-state independent contractors working in Pennsylvania which exceed $5,000 to withhold personal income tax on those payments.

New York MTA surcharge rate: New York Business Corporation Franchise Tax Regulations were amended to set the Article 9-A Metropolitan Transportation Business Tax Surcharge (MTA surcharge) rate for tax years beginning on or after Jan. 1, 2018, and before Jan. 1, 2019. The rate has increased to 28.6%. 

California sale of a business: A corporation could exclude the sale of its U.S. business in the California sales apportionment factor of its California return. If a sale is deemed to be substantial and occasional in nature, a corporation generally does not include asset sales in its apportionment factor.

Montana apportionment rules: The Montana Department of Revenue has adjusted their rules regarding the calculation of apportionment for unitary combined groups. The new Finnigan Rule states that a taxpayer must include the payroll, property and receipts from all unitary group members if one member has nexus.

Connecticut Fresh Start: The CT Fresh Start program, which runs from Oct. 31, 2017, through Nov. 30, 2018, allows eligible taxpayers to pay only the tax due and half the interest at the time of the application filing. All remaining interest and penalties will be waived, and no returns are actually required to be filed.

Amnesty reminders: Ohio and Rhode Island tax amnesty programs end Feb. 15. Both programs waive all filing penalties; participants will only be required to pay 50% (Ohio) or 75% (Rhode Island) of the interest accrued on late filings.

Download our SALT updates here or contact a member of the Freed Maxick State and Local Tax Services (SALT) Team for a no cost consultation.

Aside from the sales incentives, other charges and fees such as transportation costs and returns and allowances and bad debt can be easily overlooked by companies computing the taxable base of a transaction. And as with discounts (discussed in part 1), when dealing with multiple jurisdictions, the rules are not uniform.

Transportation

The majority of states tax transportation charges to the purchaser. Transportation charges can be defined differently state to state and could include in the definition: handling, packing, mailing/delivery, shipping, and postage costs. If an exclusion is allowed for transportation charges, the invoice must separately state the charges or it will default as being taxable.

Among the states, New York and Nebraska state that delivery charges are taxable when (1) the transaction with the retailer is taxable, and (2) the purchaser pays the delivery charge to the retailer. Note that the delivery charges in addition to the sale of the product are part of the retailer’s taxable sales base. If the transaction is nontaxable, any charge to the customer for shipping or delivery would not be subject to tax. Colorado and Illinois generally will not tax transportation costs if the amounts are agreed by the buyer and seller to be separately stated on the invoice.

Bad debt

As part of the normal process of doing business, companies often incur bad debt. Businesses may or may not know that sales tax reductions are generally allowed for taxes that have been paid to a jurisdiction on accounts deemed to be worthless. A state will normally allow the deduction for sales tax if the account is taken as a bad debt deduction for income tax purposes. If a recovery of bad debt occurs after the deduction was taken, the amount is subject to sales tax. Pursuant to the uniform provisions under the Streamlined Sales & Use Tax Agreement, bad debt does not include finance charges, interest and expenses incurred in the collection activity.

Most states allow a taxpayer to take a deduction against the current period’s tax base. Returns and allowances and defective products are treated similarly in that vendors are generally allowed a credit for the tax paid and remitted on taxable goods returned to the vendor.

Note that for defective merchandise, the deduction is limited to the sales price less the allowance. If the purchaser exchanges a defective product for a new one at equal value, no deduction is allowed by the vendor and no sales tax charged on the exchange.

Interest and Borrowing Fees

Most states do not tax finance charges or interest and carrying charges to sales made on credit as long as the amounts are separately stated.

Understanding and applying sales and use tax rules can be quite cumbersome for many business operating in multiple states. Determining the correct taxable base and deductions for sales and use tax reporting could be highly material to your business if done incorrectly. Are you confident in the accuracy of your sales and use tax compliance?

Contact our State and Local Tax team by clicking here or calling 716-847-2651 to get in touch with a member of the Freed Maxick SALT Team for a no cost consultation.

Many business practices can contribute to determining a company’s base for sales tax. For instance, companies will often utilize incentives to sell their product to customers by offering discounts, rebates, loyalty programs, gift certificates and so on. Changes to the ultimate sale price may or may not influence the tax base subject to sales tax.

Discounts can occur in many forms. Vendors may offer a discount on a sale if a specified quantity is purchased. Some may offer an incentive discount for customers to prepay. In other cases, a vendor may offer a retroactive discount.

When dealing with multiple jurisdictions, the rules are not uniform. Some states have guidance on whether the discounted sales price is the taxable base to charge sales tax. The general concept with discounts in sales and use tax is whether the discount is applied in the present or future.

Colorado, for example, states that discounts not determined by future events are taxable at the discounted amount but a cash discount that is contingent on a date that a future payment is made does not reduce the selling price because the discount is contingent upon a future event. Also, a quantity discount or discount card that reduces the selling price which is not contingent on any other event would be taxed at the discounted price. Regarding discounts offered after the sale, a New York case ruled that retroactively granted discounts based on volume were not exempt from tax, likely because there was a contingency on the discount being honored at the time of the transaction.

It’s important, therefore, to be aware of how the discount is being applied to the customer and how the jurisdiction treats such discount.

Coupons are generally structured in two different forms: (1) as a manufacturer coupon for which the retailer is reimbursed on the sale, or (2) a retailer coupon for which the retailer incurs the cost of the discount on the sale. Generally, the taxable base of a sale with the use of a retailer coupon would be at the discounted sale price. Manufacturer coupons, however, are   generally excluded from the taxable base because the retailer is being compensated by the manufacturer for the sale.

Stored value cards or Groupons are becoming increasingly popular and few states have provided guidance on the tax base. For New York, the amount subject to sale depends if the voucher is for a “specific product or service” or a “stated face value voucher.” If it’s for a specific product or service, the taxable base is the price the customer paid for the voucher. For a stated face value voucher, tax is calculated on the selling price of the items before the value of the voucher – that is, the full value of the voucher is subject to sales tax, not just the amount paid by the customer.

Understanding and applying sales and use tax rules can be quite cumbersome for many business operating in multiple states. Determining the correct taxable base and deductions for sales and use tax reporting could be highly material to your business if done incorrectly.

(In part 2 we’ll discuss how transportation charges and bad debts affect calculating a company’s sale tax base.)

Are you confident in the accuracy of your sales and use tax compliance? Contact our State and Local Tax team by clicking here or calling 716-847-2651 to get in touch with a member of the Freed Maxick SALT Team for a no cost consultation on your sales and use tax accounting issues.

Freed Maxick’s latest SALT Update newsletter will have you turning pages at your desk almost as fast as the leaves turn outside your window. 

With 50 states, 1 district, and assorted territories, it’s a constant challenge to stay on top of new developments in all of the states, much less the countless counties, cities, boroughs and other taxing authorities within those states. That’s why we prepare the SALT Update--to boil recent developments down to a quick highlight list of tax changes you may want to learn more about.  Here’s a look at a few of the topics covered in our latest update:

Income & Franchise Taxes Update

• California and Massachusetts have both changed some filing dates that affect businesses.
• Taxpayers in New Hampshire may not quite be able to “live free” of its business profits tax or business enterprise tax, but they can live a little less expensively. The rates are scheduled to decrease in several steps, starting with tax periods that end on or after December 31, 2018, with the last reduction going into effect for tax periods beginning on or after December 31, 2021.
• Ohio will offer a tax amnesty program from January 1, 2018, to February 15, 2018. All qualifying unreported and underreported taxes due and payable as of May 1, 2017 can be settled by paying the full amount of tax due and half of the interest due. The state will waive penalties and the other half of the interest for taxpayers who come forward voluntarily during the program. 

Sales & Use Taxes Update

• From August 17, 2017, until October 17, 2017, the Multistate Tax Commission (MTC) will offer a limited-time voluntary disclosure initiative in 19 states. The program provides relief from sales and use tax, income/franchise tax, or both. The details on eligibility and available states are in the alert. The key things to remember are that the program ends as of October 17, 2017, and the filing must be done through the MTC.
• New York authorities took several actions recently, including an advisory opinion on the applicability of sales and use tax to the sale of fractional aircraft shares, guidance for applying sales and use tax to certain sales between related parties, and a use tax exclusion for nonresident businesses in New York.

We hope that you’ll find that this Freed Maxick SALT Update delivers information to help you focus your state and local tax planning. You can also follow us on Twitter or LinkedIn to receive announcements when new alerts are posted, or subscribe to receive notices by e-mail.

Download our 2017 SALT updates here or contact a member of the Freed Maxick State and Local Tax Services (SALT) Team for a no cost consultation. 

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Freed Maxick CPAs, P.C. is Western and Upstate New York’s largest public accounting firm and a Top 100 firm in the United States. Freed Maxick’s reputation and experience with cross-border business and tax issues has made us a go-to firm for businesses and individuals from all over the U.S. and Canada and around the world.

Freed Maxick will be starting a new State and Local Tax newsletter this month. Here are a few highlights of what you can expect in our first issue.

We’re proud to announce that Freed Maxick will be sharing a new State and Local Tax newsletter, “SALT Updates.” Our team of professionals who focus on tax issues at the state and local level will provide summaries of significant developments in the field from around the country. The update will provide information sorted by the type of tax involved as well as the states affected.

Here’s a look at a few of the topics that will be covered in our first update:

• A new law in California will strip the State Board of Equalization of its powers and create 2 new agencies: The “Department of Tax and Fee Administration” and the “Office of Tax Appeals.”
• New York’s power of attorney form, Form POA-1, has been condensed to one page and now requires only the taxpayer’s signature.
• Also in New York, the state’s Supreme Court held that the suspension of a taxpayer’s driver’s license for unpaid personal income taxes is constitutional.

• If you have any familiarity with this type of tax, you won’t be surprised to learn that the bulk of the discussion in our first issue focuses on new laws requiring out-of-state sellers to collect sales tax or report sales. We note 5 states with new laws in effect on this topic.
• Another common sales & use topic is a remote seller’s economic nexus. This month, we discuss court challenges to nexus laws in Wyoming and Indiana.

• In keeping with the economic nexus theme, a new Washington law will extend nexus for the state’s business and occupation tax to retail sellers who meet certain criteria.

The topics and the states covered will vary from issue to issue as developments warrant, but we hope that you’ll find that this new Freed Maxick alert service delivers value in every alert. You can read the entire alert here. You can also follow us on Twitter or LinkedIn to receive announcements when new alerts are posted, or subscribe to receive notices by e-mail.

Download our Summer 2017 SALT updates here or contact a member of the Freed Maxick SALT Team for a no cost consultation.