State and local tax advisor: September 2020 

The states covered in this issue of our monthly tax advisor include:

• California
• Colorado
• District of Columbia
• Georgia
• Illinois
• Indiana
• Massachusetts
• Michigan
• New Jersey
• South Carolina
• Texas
• Utah
• Virginia

California

Corporate, personal income taxes: Forgiven PPP loan amounts excluded from gross income

California will not tax forgiven Paycheck Protection Program (PPP) loan amounts. For tax years beginning on and after Jan. 1, 2020, California conforms to federal law excluding from income any covered loan amount forgiven pursuant to the:

• Section 1106 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136)
• Paycheck Protection Program and Health Care Enhancement Act (P.L. 116-139)
• Paycheck Protection Program Flexibility Act of 2020 (P.L. 116-142)

For California purposes, “covered loan” has the same meaning as in the CARES Act.

No credit or deduction for expenses paid using forgiven PPP funds

California will not allow a credit or deduction for any expenses paid for using forgiven PPP funds. Taxpayers must reduce any credit or deduction otherwise allowed for those expenses by the amount of the forgiven loan excluded from income.

A.B. 1577, Laws 2020, operative as noted.

Corporate income tax: Guidance provided on tax implications of employee teleworking in California due to “stay-at-home” order

California will not tax an out-of-state corporation whose only connection to California is an employee teleworking in California due to Executive Order N-33-20. This tax treatment will continue to apply until the order is no longer in effect.

Effect of Executive Order N-33-20

Governor Gavin Newsom issued the order on March 19, 2020, directing residents to stay at home to prevent the spread of COVID-19. As a result of the order, many individuals living in California who ordinarily did not telework from home began to do so. In some instances, the individuals living in California and now teleworking from home might be employed by corporations that previously had no connections with California.

Not doing business in the state

California will not treat an out-of-state corporation as doing business in the state if its only connection with California is an employee teleworking in California due to the order. California will not treat the corporation as actively engaging in a transaction for financial or pecuniary gain or profit in the state. California also will not include the compensation attributable to the employee in the computation of the payroll threshold for doing business in the state.

P.L. 86-272 protections

In addition, an employee teleworking in California due to the order will not cause an out-of-state corporation to exceed the protections of P.L. 86-272. P.L. 86-272 prohibits California from taxing the income that an out-of-state corporation generates from California if its only activities in the state pertain to the solicitation of sales. Further, even if an out-of-state corporation engages in activities in the state that exceed the solicitation of sales, it will not be subject to tax on income generated in the state if the activities are de minimis. California will treat the presence of an employee teleworking in California due to the order as engaging in de minimis activities for purposes of P.L. 86-272 protection.

COVID-19 Frequently Asked Questions for Tax Relief and Assistance, California Franchise Tax Board, Sept. 11, 2020.

Colorado

Corporate, personal income taxes: Permanent regulations defining “internal revenue code” adopted

The Colorado Department of Revenue has adopted permanent income tax regulations to clarify that the term “internal revenue code” incorporates changes to federal statutes on a prospective basis. The regulations had previously been adopted on a temporary, emergency basis. (TAXDAY, 2020/06/15, S.6)

Regulations Sections 39-22-103(5.3) and 39-22-303.6–1, Colorado Department of Revenue, effective Sept. 30, 2020.

District of Columbia

Corporate income tax: Work from home doesn’t create franchise tax nexus

The District of Columbia has stated it will not seek to impose corporation franchise tax or unincorporated business franchise tax nexus solely on the basis of employees or property used to allow employees to work from home in the District due to COVID-19.

Scope of exemption

The exemption will continue during the period of the declared public emergency and public health emergency. Further, the presence of employees will not cause a business to lose the protections of P.L. 86-272.

OTR Tax Notice 2020-07, District of Columbia Office of Tax and Revenue, Sept. 3, 2020.

Georgia

Corporate income tax: CARES Act guidance released

Georgia has updated its income tax guidance to address CARES Act changes made for qualified improvement property.

Federal change

The CARES Act included a technical correction for qualified improvement property. It changed the depreciable life of qualified improvement property (QIP) from 39 years to 15 years. Federally, qualified improvement property is now also eligible for 100% bonus depreciation.

Georgia’s adoption

For taxable years beginning on or after Jan. 1, 2019, Georgia has adopted this correction as it relates to the 15-year life but has not adopted bonus depreciation. For previously filed federal tax returns, the IRS allows a taxpayer to either file an automatic accounting method change or amend the previously filed tax returns.

Examples

Below are two scenarios explaining what should be done for Georgia purposes if the taxpayer elects the option to file an automatic accounting method change:

• Assume the following: 1) the 2019 federal return and Georgia return were filed, and the taxpayer did not account for the CARES Act change (used 39 years, etc.); 2) the taxpayer will file federal Form 3115 with the IRS in 2020 to make the change at the federal level from 39 years to 15 years (they may also elect to take bonus depreciation at the same time); and 3) the taxpayer will make a one-time adjustment on the 2020 federal return. The taxpayer should attach the federal Form 3115 to the 2020 Georgia return. The change from 39 years to 15 years would then be automatically accepted and like the federal, no Georgia approval is necessary. Since the one-time federal adjustment flows through to the Georgia return, no separate adjustment is necessary on the 2020 Georgia return unless bonus depreciation was taken federally. In that case, the bonus depreciation would have to be adjusted accordingly.
• Assume the 2019 federal return was filed and the taxpayer did account for the CARES Act change on the federal return (used 15 years, etc.) but the 2019 Georgia return was filed using the 39-year life for QIP. In this case, the taxpayer should explain on the 2020 Georgia return what is happening in a footnote or attachment (no 3115 is required). Like the federal, no Georgia approval is necessary. The taxpayer should then make the one-time adjustment on the Georgia Form 4562 like it is done federally for assets placed in service in a prior year. This will then flow to the 2020 Georgia return with the other Georgia depreciation.

Income Tax Federal Tax Changes, Georgia Department of Revenue, updated July 8, 2020.

Illinois

Multiple taxes: Expanded audit fast track resolution discussed

The Audit Fast Track Resolution (FTR) program is now available for all Illinois sales and miscellaneous tax audits except for Motor Fuel Use Tax (IFTA).

The FTR program was established by the Illinois Department of Revenue (department) to provide a forum for the prompt resolution of disputed audit issues while the case is still under the jurisdiction of the Audit Bureau.

The department issued a bulletin to discuss the:

• FTR application process and information
• Advantages of participating in the program
• Conference process
• Withdrawals from the process

The bulletin clarifies that if a resolution is not reached through the audit process, taxpayers retain statutory review, protest, and appeal rights.

Informational Bulletin FY 2021-01, Illinois Department of Revenue, September 2020.

Indiana

Corporate income tax: Income tax apportionment protest denied as taxpayer didn’t share unitary business relationship with LLC

An out-of-state holding company was properly subject to Indiana corporate income tax as the taxpayer failed to establish that it had a “unitary relationship” with a business partner. In this matter, the taxpayer was an out-of-state holding company that owned a minority interest in two multimember LLCs. One of the LLCs owned and operated gas stations (Gas Station LLC), and the other LLC was yet another holding company. The taxpayer disposed of its interest in both LLCs but treated its interest in both LLCs as unitary for the tax years at issue. The taxpayer included the distributive shares of income/loss as apportionable income but did not include its eventual gain earned on the sale of the LLCs as apportionable income. During the audit, the Indiana Department of Revenue (department) concluded that the taxpayer did not share a unitary business relationship with either LLC. The taxpayer protested arguing that it has a “unitary relationship” with a business partner and that the Department's audit conclusion to the contrary is erroneous.

However, the department disagreed with the taxpayer’s argument that it shared a unitary business relationship with multistate Gas Station Company; although both the taxpayer and Gas Station Company participated in and were members of a joint operational arrangement, the taxpayer failed to establish that the parties were functionally integrated, shared centralized management, and that they benefitted from the economies of scale characterizing a unitary relationship. Specifically, it was noted that the taxpayer was an employee-less, officer-less, property-less holding company that owned a minority interest in the Gas Station LLC and earned money by that interest and that the taxpayer did not prove that it exercised “operational control” over the Gas Station LLC’s business.

Letter of Findings No. 02-20191221, Indiana Department of Revenue, June 3, 2020, released August 2020.

Massachusetts

Sales and use tax: Small businesses get extension of tax relief due to COVID-19

Due to the COVID-19 pandemic, Massachusetts is extending sales tax relief for small businesses.

Small business extension

The extension includes taxes from small businesses due between March 2020 through April 2021 for

• Sales tax
• Meals tax
• Room occupancy tax

Businesses that collected less than $150,000 in regular sales plus meals taxes in the 12-month period ending Feb. 29, 2020, are eligible for relief for sales and meals taxes. Businesses that collected less than $150,000 in room occupancy taxes in the 12-month period ending Feb. 29, 2020, are eligible for relief with respect to room occupancy taxes.

Qualifying small businesses will have no penalties or interest accrue during the extension period. Businesses that don’t qualify as a small business will qualify to have late-file and late-pay penalties waived during the extension period. However, interest will still accrue.

The Department of Revenue will issue emergency regulation and a Technical Information Release regarding this tax extension relief.

Press Release, Office of Governor Charlie Baker, Sept. 15, 2020.

Michigan

Multiple taxes: Reminder issued to use digital signatures on tax forms

The Michigan Department of Treasury (Treasury) has reminded tax professionals and taxpayers that they can use digital signatures on tax forms, even forms that cannot be filed electronically because of the COVID-19 situation. The Treasury states that the use of digital signatures reduces in-person contact and lessens the risk to taxpayers and tax professionals during the COVID-19 pandemic, but does not specify which digital signature product or method tax professionals must use. Michigan’s personal income, corporate income, sales and use, and withholding tax returns already use an electronic signature when filed electronically.

For additional assistance or questions regarding the use of digital signatures on forms, taxpayers can contact the Treasury through the Treasury Self-Service website. Businesses with questions can inquire through self-service options using Michigan Treasury Online.

Press Release, Michigan Department of Treasury, Sept. 8, 2020.

New Jersey

Corporate income tax: Corporation with ownership in a limited partnership has nexus

A foreign corporation was subject to the corporation business tax (CBT) because it was not a mere passive investor in partnerships lacking nexus with New Jersey. Previously, the New Jersey Tax Court found that the taxpayer earned New Jersey-sourced income from its partnership interests.

Taxpayer’s business structure

CBT had been assessed on the taxpayer’s share of passed-through partnership income from two foreign limited partnerships (the partnerships). The taxpayer was a 99% limited partner in those partnerships. The taxpayer and the partnerships were 100% owned by the same parent. The general partners in the partnerships were foreign corporations that held a 1% interest.

All the entities were part of the same corporate family, a national residential real estate developer and builder based in Michigan, at the time of the audit. In the corporate parent’s structure, the taxpayer was a holding company investing in homebuilding. However, for tax reporting purposes, the taxpayer was placed in the homebuilding line of parent’s businesses. The taxpayer shared certain officers and directors with its general partners and with the corporate parent.

New Jersey law

In New Jersey, a partnership is not subject to taxation in New Jersey for its earnings. However, earnings are passed through to the partners who are taxable on their share of partnership gains.

The taxpayer argued that as a foreign limited partner, it was not subject to the CBT for passively receiving income from a New Jersey source. Further, the taxpayer argued that the tax court erred when it held the taxpayer had an automatic economic nexus to New Jersey upon its receipt of partnership income from New Jersey sources.

Tax court upheld

The taxpayer failed to offer a different interpretation of New Jersey statutes or the tax court’s finding that it derived receipts from New Jersey sources. The plain language of the statute suggests that a foreign corporation must pay the CBT for the privilege of deriving receipts from sources in New Jersey as long as the taxation falls within federal constitutional limits and no statutory exemption applies. No New Jersey exemption applied and the taxpayer did not challenge either the constitutionality of the tax or the tax court’s finding that it undisputedly derived receipts from New Jersey sources. Thus, the record supported the tax court’s finding that the taxpayer derived receipts from New Jersey sources and had sufficient nexus with New Jersey to subject it to the CBT for income it received from those partnerships.

Preserve III, Inc. v. Director, Division of Taxation, New Jersey Superior Court, Appellate Division, No. A-1331-17T3, Sept. 9, 2020.

Corporate income tax: Sourcing rule for sales of services adopted

New Jersey issued corporation business tax regulations addressing apportionment of receipts from service transactions. Sales are apportioned to New Jersey if the benefit of the service is received by a customer at a location in New Jersey. New Jersey requires market-based sourcing for privilege periods ending on and after July 31, 2019.

Is the benefit received in New Jersey?

A customer is in New Jersey if:

• The recipient is engaged in a trade or business and maintains a regular place of business in New Jersey.
• is an individual who is not a sole proprietor, who is located in New Jersey.

If the location of the individual cannot be determined, the benefit of the services will be deemed to be received at the individual’s billing address.

A billing address is the location indicated in the pertinent customer order or records of the taxpayer as the address of record where notices, statements, or bills relating to the customer's account are mailed, or the location where services are provided to the customer.

What if a recipient is located in more than one state?

If the service is provided to a business for use in a trade or business located in New Jersey and another state, the taxpayer includes the sales in the numerator of the sales fraction based on the percentage of the total value of the benefit of the service received in all locations in and outside of New Jersey. The sales are included as follows:

• The receipts are attributable to New Jersey if the recipient of the service receives all of the benefit of the service in New Jersey.
• If the recipient of the service receives some of the benefit of the service in New Jersey, receipts arising from the service are in New Jersey in proportion to the extent the recipient receives the benefit of the service in New Jersey.
• In determining the “proportion to the extent to which the recipient receives the benefit of the service(s) in this State,” a taxpayer may use the terms of a contract, the taxpayer’s books and records kept in the normal course of business, or the nature of the taxpayer’s or recipient’s business and/or the service at issue, to determine how much of the benefit of the service is received in New Jersey.
• In determining the “proportion to the extent to which the recipient receives the benefit of the service(s) in this State,” a taxpayer may use a reasonable approximation to attribute the location of receipts if none of the items listed above provide the information necessary to determine how much of the benefit of the service is received in New Jersey.

Are subcontractor receipts allocable?

All taxpayer receipts for payment of services provided in the regular course of business are allocable, even if the services were performed by employees or agents of the taxpayer, by subcontractors, or by any other persons. It does not matter if the taxpayer reports the receipt as an item of income or a reduction in expense.

It’s immaterial where the receipts from the sales of services were payable or where they were actually received.

How are airlines receipts allocated?

Transportation revenues of an airline are from services in New Jersey based on the ratio of an airline's revenue miles in New Jersey divided by an airline’s total revenue miles. When the airline is engaged in the transportation of passengers, the transportation of freight, or the rental of aircraft, the ratio is an average of a passenger revenue mile fraction, freight revenue mile fraction, and rental revenue mile fraction weighted to reflect the taxpayer’s relative gross receipts from passenger transportation, freight transportation, and rentals.

How are revenues from transporting freight determine?

Trucking companies transporting freight calculate their receipts fraction using mileage. The taxpayer’s receipts are multiplied by a fraction, the numerator is the number of miles in New Jersey, and the denominator is the mileage in all jurisdictions. Taxpayers required to maintain mileage records in compliance with the International Fuel Tax Agreement make calculations using those records.

For the property fraction, movable property, such as tractors and trailers, are allocated to New Jersey by adding it to the fraction formed by nonmovable property in New Jersey over nonmovable property everywhere to arrive at the property fraction. For the payroll fraction, wages of mobile employees, such as drivers, are allocated to New Jersey by adding it to the fraction formed by nonmobile employee wages in New Jersey over nonmobile wages everywhere to arrive at the taxpayer’s overall payroll fraction.

How are receipts from services and materials apportioned?

If a taxpayer receives a lump sum in payment for services and for materials or other property, the sum received must be apportioned on a reasonable basis by providing:

• The part apportioned to services is includible in receipts from services.
• The part apportioned to materials or other property is includible in receipts from sales.
• Full details must be submitted with the taxpayer's return.

How are asset management service receipts allocated?

Asset management services directly or indirectly provided to individuals are allocated to New Jersey if the domicile of the individual is in New Jersey.

Asset management services directly or indirectly provided to a pension plan, retirement account, or institutional investor, such as private banks, national and private investors, international traders, or insurance companies, receipts are allocated to New Jersey to the extent the domicile of the beneficiaries is in New Jersey.

In the case of asset management services directly or indirectly provided to a regulated investment company, receipts are allocated to New Jersey to the extent that shareholders of the regulated investment company are domiciled in New Jersey. The portion of receipts deemed to arise from services in New Jersey is determined by multiplying the total of the receipts from the sale of those services by a fraction. The numerator is the average of the sum of the beginning of the year and the end of year balance of shares owned by the regulated investment company shareholders domiciled in New Jersey for the regulated investment company's taxable year for federal income tax purposes that ends in the taxable year of the taxpayer. The denominator of the fraction is the average sum of the beginning of the year and end of year balance of shares owned by the regulated investment company shareholders. A separate computation is made to determine the allocation of receipts from each regulated investment company.

How are broadcaster receipts sourced?

Receipts from a broadcaster’s licensing of film programming to a broadcast customer are sourced to New Jersey based on the broadcast customer’s viewing audience in New Jersey in proportion to the viewing audience in all jurisdictions in which the broadcast customer has viewers. If the information is indeterminable, a broadcast customer shall be deemed to receive the benefit of the license in New Jersey and the receipts from the licensing of the film programming are sourced based on the ratio of the population of New Jersey over the population of the other jurisdictions with viewers. However, if a broadcaster can prove to New Jersey that the broadcast customer does not have any viewers in New Jersey, the receipts from licensing of film programming to the broadcast customer is sourced to the commercial domicile of the broadcast customer.

N.J.A.C. 18:7-8.10A, New Jersey Division of Taxation, effective Sept.8, 2020.

South Carolina

Multiple taxes: Nexus relief for COVID-19 telecommuting extended

Through Dec. 31, 2020, South Carolina has extended relief that it previously announced regarding the establishment of income and sales tax nexus solely because an employee is temporarily working in a different work location due to COVID-19. (TAXDAY, 2020/05/21, S.17)

Under the relief provisions, which previously applied through Sept. 30, 2020, South Carolina will not use changes solely in an employee’s temporary work location due to the remote work requirements arising from, or during, the COVID-19 relief period as a basis for establishing nexus or altering apportionment of income. The extension also covers related guidance that was issued on employer withholding requirements.

Information Letter 20-24, South Carolina Department of Revenue, Aug. 26, 2020.

Texas

Corporate income, sales and use taxes: Tax treatment of remote seller discussed

Texas issued a letter ruling outlining the franchise tax and sales and use tax treatment of the remote sellers after the U.S. Supreme Courts’ decision in South Dakota v. Wayfair.

Remote sellers are out-of-state sellers whose only activity in Texas is the remote solicitation of sales. Remote sellers have Texas tax collection and reporting obligations if they have economic nexus in this state. Corporations with physical presence in the state are not a remote seller.

Remote sellers

• Remote sellers with total Texas revenue of less than $500,000 in the preceding 12 calendar months are not required to obtain a tax permit or collect, report, and remit sales and use tax. Total Texas revenue is based on gross revenue from taxable and nontaxable sales of tangible personal property and services into Texas.
• The amount includes separately stated handling, transportation, installation, and other similar fees the taxpayer collect. It also includes sales for resale and sales to exempt entities.
• As a remote seller, if a taxpayer exceeds the $500,000 safe harbor amount, taxpayers are required to obtain a permit and begin collecting and remitting use tax on sales to customers in Texas beginning no later than the first day of the fourth month after the month that a remote seller exceeds the $500,00 safe harbor amount.
• A remote seller who only sells through a marketplace provider that certifies they are collecting and reporting sales and use tax on the remote seller’s behalf is not required to hold a Texas tax permit.
• All sellers must keep required records of all marketplace sales for at least four years.

Texas tax permit

As a seller, taxpayers may apply for a tax permit:

• Online
• By mailing in Form AP 201, Texas Application
• Remote seller outside the United States can register to collect and remit Texas by emailing Form AP 201 or faxing it to (512)-936-0010

The single local use tax rate

The single local use tax rate is an alternative local tax rate that remote sellers can use instead of collecting and remitting the total local tax in effect at the destination address. The current single local use tax rate is 1.75%, and the rate is published in the Texas Register by Jan. 1, 2020, of each year

Franchise tax

A foreign taxable entity with annual gross receipts of $500,000 or more from business in Texas has economic nexus even if the entity has no physical presence in this state; this economic nexus provision applies to reports due on or after Jan. 1, 2020. Prior to Jan. 1, 2019, a foreign taxable entity’s nexus begins on the date the taxable entity has physical presence in Texas. On or after Jan. 1, 2019, a taxable entity’s nexus begins on the earliest of:

• The date the entity has physical presence.
• Jan. 1, 2019, if the entity obtained a use tax permit prior to that date;
• The date the entity obtains a Texas use tax permit if obtained on or after Jan. 1, 2019.
• The first day of the federal income tax accounting period in which the taxable entity had gross receipts from business done in Texas of $500,000 or more.

Letter Nos. 202008001L and 202008002L, Texas Comptroller of Public Accounts, Aug. 17, 2020.

Utah

Corporate income tax: Net loss carryforward limitation suspended

For the 2018 through 2020 tax years, Utah removes the 80% limitation on net loss carryforwards for corporate franchise and income tax return filers. This conforms to the federal suspension of the limitation by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Ch. 10 (H.B. 6013), Laws 2020, Sixth Special Session, operative as noted.

Virginia

Corporate income tax: Pass-through entity properly claimed deductions under Tax Cuts and Jobs Act

A limited liability partnership, pass-through entity domiciled in another state and a partner in C corporation (corporation) with Virginia source income during the 2017 taxable year was eligible to claim two corporate income tax deductions in accordance with the provisions of the Tax Cuts and Jobs Act (TCJA) that would result in the abatement of the assessment.

In this matter, due to special allocations, 100% of the taxpayer’s income and deductions were allocated to the corporation and the corporation filed a 2017 Virginia corporate income tax return but reported no liability because of a net operating loss (NOL) carryforward from prior taxable years.

The taxpayer filed a pass-through entity return of income and return of nonresident withholding tax on which it reported a withholding tax liability but remitted no payment. As such, the Department of Revenue (department) issued an assessment for the withholding tax liability reported on the return. However, the taxpayer protested, contending that it was eligible to claim two deductions in accordance with the provisions of the TCJA that would result in the abatement of the assessment.

Generally, a pass-through entity that has taxable income for the taxable year derived from or connected with Virginia sources, any portion of which is allocable to a nonresident owner must pay withholding tax. The amount of tax that must be withheld is equal to 5% of the nonresident owner’s share of income from Virginia sources of all nonresident owners that may lawfully be taxed by Virginia and which is allocable to a nonresident owner.

IRC 965 deduction

Multinational companies and individual investors have been keeping some of their foreign profits untaxed by holding such profits abroad in foreign corporations for many years. The TCJA forces the domestic parent corporation (or United States individual shareholder) to pay a one-time income tax, known as “repatriation,” at reduced rates on all their untaxed foreign profits in the 2017 taxable year. The repatriation inclusion under IRC 965 consists of two parts. In the first part, the gross inclusion of post-1986 accumulated, untaxed earnings and profits (E&P) is calculated, which is prescribed as additional subpart F income. Under the second part, a deduction is permitted to account for the lowered effective tax rate on E&P Virginia’s fixed-date conformity legislation has not provided an exception for the IRC 965(c) deduction.

IRC 754 deduction

IRC 754 generally allows a partnership to make an election to adjust the basis of its property when a partnership interest is sold. This basis adjustment is governed by IRC 743. Under IRC 743, when one taxpayer sells his partnership interest to another taxpayer for a profit, the partnership is allowed to increase the basis of its property. The increase in basis is beneficial because, when the partnership property is ultimately sold by the partnership for a profit, it results in less gain realized.

Determination

Under Virginia’s fixed-date conformity provisions, taxpayers are permitted to claim an IRC 965(c) deduction, but cannot deduct excess depreciation as provided under IRC 754 when calculating its pass-through withholding tax liability for the 2017 taxable year. In this matter, since the amount of the IRC 965(c) deduction offset the taxpayer’s net income, the assessment of pass-through entity withholding tax for the taxable period of January through December 2017 was abated.

Ruling of Commissioner, P.D. 20-79, Virginia Department of Taxation, May 12, 2020, released August 2020.