Understanding Your State Tax Nexus Footprint

Transcription

1 Understanding Your State Tax Nexus Footprint Shannan Gilmartin Cuddy, J.D. Senior Tax Manager MFA Moody, Famiglietti & Andronico (978)

2 About MFA Moody, Famiglietti & Andronico Proactive CPA and consulting firm with national and global reach Founded in 1982 Nearly 100 professionals, including 14 partners Located in Tewksbury, Massachusetts

3 About MFA Moody, Famiglietti & Andronico Audit & Assurance Taxation Valuation Transaction Services Specialty GAAP Advisory Wealth Advisory Professional Staffing Corporate Governance/ Compliance Consulting Performance & Controls Consulting Fraud & Forensic Accounting Litigation Support IT Advisory

4 Agenda Nexus: General Rules/Distinctions Between Tax Types Tax Treatment of Revenue Streams Compliance Considerations Tax Examinations Considerations Mergers & Acquisitions/Due Diligence Considerations

5 Nexus: General Rules/Distinctions Between Tax Types

6 Nexus: General Rules General Definition Nexus is the level of contact that must exist between a taxpayer and a state before the state has the authority under the U.S. Constitution to assess a tax Federal Limitations U.S. Constitution Due Process Clause Test Requires a Minimum Connection between taxpayer s interstate activities and a state Generally easier standard to meet Dormant Commerce Clause Test Requires a Substantial Nexus between taxpayer s interstate activities and a state Generally requires physical presence Is generally the standard applied by the U.S. Supreme Court with regards to sales and use taxes

7 Nexus: General Rules Federal Limitations Complete Auto Four-Prong Test for determining state income tax nexus: Substantial nexus Fair Apportionment Cannot discriminate against interstate commerce Fairly related to services received (Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977) Case failed to adequately define Substantial Nexus Federal Limitations Quill Distinguished the Due Process and Commerce Clause standards An out-of-state seller has use tax nexus in a particular state if the seller has a physical presence in that state (Quill Corp. v. North Dakota, 504 U.S. 298 (1992) Supreme Court applied standard under the Dormant Commerce Clause Supreme Court left open the ability for Congress to legislatively apply a lesser standard (e.g., minimum contact under the Due Process clause)

8 Nexus: General Rules Federal Limitations - Public Law Enacted by Congress in 1959 Restricts a state from imposing an income tax when a seller s only business activities in a state are the solicitation of orders for tangible personal property in the state that are approved and filled from outside the state Protection afforded by Public Law does not extend to: Imposition of tax by state of incorporation Solicitation of services and intangibles Taxes other than income taxes Examples of activities generally protected by Public Law : Soliciting of orders by an in-state resident employee or representative of the company, so long as such person does not maintain or use any office or other place of business in the state other than in-home offices that are not publicly attributable to the company

9 Nexus: General Rules Examples of activities generally protected by Public Law (continued): Carrying samples/promotional materials only for display/distribution gratis Providing automobiles to sales personnel Passing orders, inquiries and complaints on to the home office Owning, leasing, using or maintaining personal property for use in the sales employee s home office Examples of activities generally not protected by Public Law : Making repairs or providing maintenance or service to the property sold or to be sold Installation or supervision of installation at or after shipment or delivery Conducting training courses, seminars or lectures for personnel other than personnel involved only in solicitation Providing any kind of technical assistance or service (e.g., engineering or design assistance) Approving or accepting orders

10 Nexus: General Rules Types of Nexus Physical Presence Nexus Having real or leased property in a state e.g., warehouse, storage unit, branch, store Having tangible personal property in a state e.g., laptops, inventory Having employees/independent contractors in a state e.g., engaging in solicitation, performing services, attending tradeshows Attributional Nexus (e.g., via in-state representatives) Out-of-state taxpayer has nexus based on the activities of a related or unrelated entity engaging in in-state activities on behalf of the out-of-state retailer Example of states that employ attributional nexus : Arkansas, California, Connecticut, Georgia, Illinois, New York, North Carolina, Pennsylvania, Rhode Island and Vermont

11 Nexus: General Rules Types of Nexus - Continued Click-Through Nexus the Amazon Law Nexus is asserted on an out-of-state retailer due to the relationship that outof-state retailer has with an entity doing business in the state Presumed to exist if the out-of-state retailer contractually refers potential customers to the in-state retailer, directly or indirectly, through a link on an Internet website or otherwise, in exchange for compensation Presumption applies only if out-of-state retailer has gross receipts from sales to in-state customers greater than $10,0000 during the preceding 4 quarterly periods Affiliate Nexus (e.g., related entities) Common ownership or control between an in-state taxpayer and an out-ofstate company creates nexus for the out-of-state company

12 Nexus: General Rules Types of Nexus Continued Economic Nexus Nexus is asserted on an out-of-state company that does business in a state and derives revenues from those activities, but does not have an actual physical presence within the state Examples of activities that may trigger economic nexus: Licensing intangibles Earning franchise fees Earning credit card fees Pass-through Nexus Nexus is asserted on an out-of-state company by virtue of the ownership by the out-of-state company in a pass-through entity (i.e., a partnership, S corporation, limited liability, trust) that conducts business activities within the state

13 Nexus: General Rules Types of Nexus Continued Factor Presence Nexus An out-of-state company will have nexus in a particular state if one of the company s apportionment factors (property, payroll or sales) exceeds the state s statutory threshold, even where the out-of-state company does not have a physical presence in the state Typical factor presence standard: $500,000 of receipts in a state $50,000 of property in a state $50,000 of payroll in a state At any time during the calendar year within the state at least 2% of the company s total property, total payroll or total gross receipts May not apply if the out-of-state taxpayers activities in factor presence nexus state fall under the parameters of Public Law

14 Nexus: Distinctions Between Tax Types Depending on the State, the Following Nexus Rules may Apply: State Income Tax Physical Presence Nexus Public Law Economic Nexus Affiliate (Unitary) Nexus Factor Presence Nexus State Franchise Tax Physical Presence Nexus State Gross Receipts Tax Physical Presence Nexus Factor Presence Nexus

15 Nexus: Distinctions Between Tax Types Depending on the State, the Following Nexus Rules may Apply: State Income Tax Withholding Physical Presence Nexus threshold may be based on days in state and/or compensation earned State Sales and Use Tax Physical Presence Nexus Attributional Nexus Affiliate Nexus Click-Through Nexus Potential Legislative Change - Marketplace Fairness Act of 2013 Would authorize a state (that satisfied certain requirements) to impose sales and use collection duties on remote sellers if the out-of-state seller has gross annual receipts in total remote sales in the United States in the preceding calendar year exceeding $1 million

16 Tax Treatment of Revenue Streams

17 Tax Treatment of Revenue Streams State Income/Franchise Taxes State Income/Franchise Taxes Statutory apportionment factors imposed by states are typically utilized to apportion income among states where the company has nexus Many states employ an apportionment rule that relies equally on three different factors, including: The percentage of a company s nationwide property that is located in a state The percentage of a company s nationwide payroll paid in a state The percentage of a company s nationwide sales made to residents of a state States vary in the weights they assign to the factors (e.g., double weighting the sales factor) Some states require company s to utilize solely the sale factor to apportion their income (e.g., Georgia, New York and Texas)

18 Tax Treatment of Revenue Streams State Income/Franchise Taxes Property and Payroll Factors Rules regarding the amounts properly includable in each state s property and payroll factors generally do not vary too much by state For property factor purposes, the amount generally included in the company s property factor numerator includes the average value of the company s real and tangible personal property owned or rented in the state during the year for the production of apportionable income For payroll factor purposes, the amount generally included in the company s payroll factor numerator is the compensation paid to employees in the state during the year by the company for compensation Generally limited to compensation paid to employees (not independent contractors)

19 Tax Treatment of Revenue Streams State Income/Franchise Taxes Sales Factor For sales factor purposes, the amount generally included in the company s sales factor numerator includes all gross receipts derived from a taxpayer from transactions and activities in the state Sales are generally bifurcated into two types of sales: Sales of Tangible Personal Property Generally included in the state where the item is shipped May be required to be included in the sales factor numerator of the state where the item is shipped/negotiated from if the company is not taxable in the state where the item is shipped (throwback rule) May be required to excluded from the denominator of the state where the item is shipped/negotiated from if the company is not taxable/has an office in the state where the item is shipped (throw out rule) Definition of tangible personal property varies by state

20 Tax Treatment of Revenue Streams State Income/Franchise Taxes Sales Other Than Sales of Tangible Personal Property Generally includes receipts from services and intangibles (i.e., licenses, trademarks, tradenames, etc.) States generally assign receipts from services utilizing one of 3 methods: Cost of Performance Receipts sourced to the state where the majority of the costs of performing the income producing activities associated with those receipts occurs Examples AZ, DC, MA, NH, UT, VA, VT, WV Service Performance Receipts sourced to the state where the services are performed Examples CT, FL, NJ, NY, RI, TX Service Benefit Receipts sourced to the state where the service recipient benefits from the service Examples CA, GA, ME, WI States generally assign receipts from intangibles based on: Place of Use Cost of Performance

21 Tax Treatment of Revenue Streams State Income/Franchise Taxes Sales Other Than Sales of Tangible Personal Property Variances in the methods for sourcing receipts from services may result in: Greater than 100% of a taxpayer s sales being apportioned to states Example Taxpayer performs 51% of income-producing activities for its customer located in GA in MA MA is a cost of performance state Taxpayer performs 49% of income-producing activities for its customer located in GA in NH NH is a cost of performance state Taxpayer has nexus in GA GA is a market-based state Taxpayer must include 100% of its receipts associated with these services in both its MA and GA sales factor numerators

22 Tax Treatment of Revenue Streams State Income/Franchise Taxes Sales Other Than Sales of Tangible Personal Property No where sales Example Taxpayer performs 49% of income-producing activities for its customer located in GA in MA MA is a cost of performance state Taxpayer performs 51% of income-producing activities for its customer located in GA in RI Taxpayer does not have nexus in GA Taxpayer does not include any of its receipts associated with these services in either its MA sales factor numerator or GA sales factor numerator Taxpayer includes 51% of its receipts associated with these services in its RI sales factor numerator 49% of its receipts associated with these services are no where sales

23 Tax Treatment of Revenue Streams Sales and Use Taxes Sales and Use Taxes Generally required to be imposed on the sale of: Tangible personal property The definition of tangible personal property varies from state to state but generally consists of items that can be seen and held An example of an item that may be treated as tangible personal property in certain jurisdictions, but treated as either a service or an intangible in another jurisdiction sales of software Treatment generally varies based the method (e.g., delivered on a tangible medium, delivered electronically or accessed remotely) that the software is delivered or offered Example Texas Software delivered electronically in Texas is generally subject to sales and use tax Software accessed remotely in Texas, however, is generally treated as a taxable service and is taxed at 80% of the purchase price

24 Tax Treatment of Revenue Streams Sales and Use Taxes Services are generally exempt from sales and use taxes, however, certain states have selected certain services that they specifically subject to sales tax by statutes or regulation Examples Advertising services (e.g., CT, HI, MD, NM and WV) Information services (e.g., CT, DC, NY, NJ, OH, OK, TX and WA) Repair services (e.g., CT, DC, FL, IA, KS, LA, MS, NE, NJ, NM and PA) Telecommunications services (most states) Nontaxable services may be come taxable services if sold as part of a bundled transaction with a taxable item Consider separately contracting for and billing each revenue stream

25 Tax Treatment of Revenue Streams Sales and Use Taxes Four General Types of Exemptions from Sales Tax Tangible personal property exempt by statute or regulation e.g., food, coffee, certain items of clothing Services not specifically enumerated as taxable Use-based exemptions usually require an exemption certificate to be provided e.g., items used in the manufacturing process e.g., sales for resale Entity-based exemptions usually require an exemption certificate to be provided e.g., nonprofit entities and government agencies

26 Compliance Considerations

27 Compliance Obligations Sales and Use Taxes Nexus is established and taxable sales have transpired. What next? The business will be required to register as a vendor with the state This will result in the business getting a tax identification number in the state that they can then use to file sales and use tax returns and remit payment Filing obligations (e.g., annual, quarterly or monthly) will often vary based upon sales figures in a state Certain states may require that filings/payments be filed/remitted online Vendors will want to maintain all exempt certificates/required forms that they receive in order to verify exempt sales Vendors will want to review all exempt certificates received to determine validity of exemption being relied upon Massachusetts link:

28 Compliance Obligations Sales and Use Taxes Direct Pay Permits A majority of states will allow businesses to obtain a Direct Pay Permit, which allows the business to purchase taxable goods and services without paying tax to the vendor, and instead remit the correct use tax directly to the applicable taxing jurisdiction. Note direct pay permits are generally only available to the following types of purchasers: Those that operate a business that regularly requires tangible personal property or taxable services; and Those that reasonably expects and demonstrates that their purchases that are subject to sales and use tax are of a sufficient volume (e.g., $1million of taxable purchases in Massachusetts)

29 Compliance Obligations Income/Franchise Taxes Nexus is established and you have income/net worth apportionable to a state The business will be required to register as a taxpayer with the state This will result in the business getting a tax identification number in the state Filing obligations are generally annual in nature Tax payments may be required during the year (estimates) Due dates for annual filings may vary based on Entity type State (e.g., Texas Franchise Tax Reports are due May 15) Tax year end of the taxpayer Calendar/fiscal year end Transaction resulting in a short period Taxpayer will want to review property, payroll and sales information in the state and apply applicable rules to determine the apportionment factor

30 Compliance Obligations Income/Franchise Taxes Taxpayers will want to understand impact of filings on affiliates/owners For C corporations, what type of filing may be required Separate Unitary Combined Consolidated For flow-through entities (e.g., S corporations, partnerships and limited liability companies), will the filing of entity-level returns (if applicable) require Filings by the owners by way of Non-resident returns Composite filings Additional entity filings

31 Compliance Considerations Withholding Taxes Determine whether you have employees working in multiple jurisdictions Does the state apply certain thresholds for withholding Time Threshold e.g., AZ has a threshold of 60 days and CT has a threshold of 14 days Wage Threshold e.g., ID has a threshold of $1,000 and OK has a threshold of $300 in a calendar quarter Many states do not apply a threshold for withholding Withholding may be required the instant an employee begins performing services in a state (e.g., AR, AZ, IL, IN, MA, MN and RI) States with reciprocal agreements in place may withhold either where the service is performed or home base state

32 Compliance Considerations Withholding Taxes Mobile Workforce State Income Tax Simplification Act Would establish a threshold of thirty days for tax liability and employer withholding Has passed the House and is still in the Senate Where withholding is required, the employer may be required to Register for withholding purposes with the applicable state agency Have employees execute the state version of federal Form W-4 Withhold wages based on state tables Remit filings and payments (including annual reconciliations) either annually, quarterly, monthly or other frequency set by the state Filing frequency generally dependent on amount required to be withheld Example Massachusetts Annual (less than $100 withhold for calendar year) Quarterly (more then $100, but less than $1,200 for calendar year) Monthly (more than $1,200, but not more than $25,000 for calendar year)

33 Tax Examinations Considerations

34 Tax Examinations Considerations - Generally State Audits Generally Take proactive steps prior to an audit to: Understand your/your client s nexus profile in states Understand the taxability of your/your client s revenue streams in the jurisdictions where it has nexus Understand the method for sourcing your/your client s revenue streams for sales factor apportionment purposes Understand the taxability of your/your client s purchases and identify transactions where you/your client may be required to self-assess and remit use taxes Ensure that receipts are available for large purchases Document your/your client s policies and procedures related to each tax type Quantify any tax exposure that may exist

35 Tax Examinations Considerations Sales and Use Taxes State Audits Sales and Use Taxes If you/your client is audited, take the following strategic steps: Call your tax advisor they will be your/your client s advocate Review your/your client s depreciable asset purchases Make sure you have any required invoices Where invoices are not available, make sure you do your due diligence to either retrieve the applicable invoice from the retailer or document your understanding of the transaction for the auditor Know what your exposure may and provide your findings to the auditor Review your/your client s purchases/expenses Work with the auditor to determine if they may be able to do a statistical sample to audit these items Review all purchases/expenses during that sample period and collect required invoices for the auditor Prepare summary exposure and provide findings to the auditor

36 Tax Examinations Considerations Sales and Use Taxes Common purchases where sales tax may not have been imposed and where your client may have been required to self-assess use tax: Software purchases In Massachusetts, software is subject to sales and use tax regardless of the method of delivery Tangible personal property that was shipped to your client by an out-of-state seller e.g., Amazon sales Marketing materials (e.g., signage, business cards) e.g., Signage, business cards, hard copies of presentations Sales of services that may also indirectly included the sale of tangible personal property e.g., installation services, repairs/maintenance

37 Tax Examinations Considerations Income/Franchise Taxes State Audits Income/Franchise Taxes If your client is audited, take the following strategic steps: Call your tax advisor they will be your/your client s advocate Understand your nexus profile in the state where you are being audited Have available any nexus studies that may have been prepared Review any returns that have been filed to ensure accuracy Review the apportionment to determine whether revenue streams have been captured properly Consider what services are properly reporting to that jurisdiction (e.g., review where services where performed, where the customers are and what the applicable rules are) Consider what tangible personal property are properly reportable to that jurisdiction (e.g., state-based customers, throwback, government sales) Review W-2 information to understand where the employee withholding occurred Review property information

38 Tax Examinations Considerations Income/Franchise Taxes Have documentation to support filings that occurred in other jurisdictions Have copies of trial balances, balance sheets and federal tax returns available for the auditor Understand any related exposure and discuss findings with the auditor Where exposure may exist, work with your/your client s auditor to determine whether there may be any offsets to the additional tax in other states State Audits Withholding Taxes Review W-2 information to determine where withholding occurred Review employee travel information to determine where additional withholding may have been required Interview employees to understand the nature of their travel/activities Quantify any exposure and discuss findings with the auditor

39 Mergers and Acquisitions/Due Diligence Considerations

40 Due Diligence Review General Common questions asked during a due diligence Whether the Target has defined policies and procedures in place for: Registering for taxes Collecting and remitting sales and use taxes Filing and reporting income, franchise, gross receipts and withholding taxes Whether the Target has performed a nexus study for all applicable tax types Consider which nexus rules may apply by tax type Whether the Target has been remitting all applicable taxes in states where the taxpayer has nexus Consider actions of employees, independent contractors, affiliates Consider where the Target has inventory, locations (leased or owned) Consider taxability of revenue streams Understand nature of exposure, if any

41 Due Diligence Review General Common questions asked during a due diligence Whether the Target s sales are exempt from sales tax Qualify as a sales for resale Qualify as a sales to an exempt organizations (e.g., government, 501(c)(3) entities) Qualify as a sales to be incorporated into a manufactured product Whether exempt sales are properly documented (i.e., Target maintains required exemption certificates on file) Whether the Target has been self-assessing use tax on its taxable purchases where its vendors did not impose sales tax? Review fixed asset schedule/common items audited Ensure that proper documentation exists to support that applicable sales and use taxes were paid Understand nature of exposure, if any

42 Due Diligence Review General Common questions asked during a due diligence Whether the Target has performed a sales factor sourcing study to determine the proper methodology for sourcing its sales for each of its revenue streams? Consider each of the Target s revenue streams Variances between treatment of tangibles, intangibles and services Consider impact of throwback sales Understand where the Target has sales offices Consider impact of throwout sales How is the entity treated for federal and state tax purposes? Consider impact on state taxes if differences exist Determine if applicable state elections have been completed (i.e., S Corporation elections)

43 Due Diligence Review Sales/Use Taxes Common sales tax fact patterns on due diligence Scenario 1 Target sells widgets and has employees soliciting sales of the widgets in multiple states. Based on Target s activities in these states, Target should have been collecting and remitting sales tax in these states. Exposure is total sales of the widgets in these states (for all years when the Target has the requisite nexus) multiplied by the applicable sales tax rate, plus interest and failure to file and pay penalties. Scenario 2 Same fact pattern as Scenario 1, but sales are being made to a distributor who will sell the widget to the end-user. Such sale generally qualifies as a sale for resale. In such instances, the Target is generally not required to collect sales tax as long as the distributor gives the Target a Resale Certificate. In this scenario, however, Target does not collect resale certificates. Without the required resale certificates, such sales to the distributor are subject to sales tax and the exposure is the same as identified in Scenario 1. Scenario 3 Same fact patterns as Scenarios 1 and 2, however, the Target collects required resale certificates from the distributor, but does not register as a vendor in the state where the sale occurs. Depending on the state, if the Target is not registered as a vendor in the state where the sale is made, the resale certificates may not be valid. Such sales would then be subject to sales tax and the exposure is the same as identified in Scenario 1.

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