State Tax Bad Debt Recovery Issues. Agenda
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1 2015 COST ANNUAL MEETING Chicago, Illinois State Tax Bad Debt Recovery Issues John Allan Partner, Jones Day Atlanta, Georgia Frank Julian Vice President, Macy s Cincinnati, Ohio David Otero Partner, Akerman LLP Jacksonville, Florida Agenda Administration of Receivables Collection by Third Parties Common State Tax Issues Related to Bad Debt Recoveries State Example (Statute Of Limitations Issue) Noteworthy Cases 2 1
2 Administration of Receivables Collection by Third Parties 3 Overview Lenders and their retailer partners have been litigating the issue of whether lenders or retailers are eligible to recover under the bad debt sales tax recovery statutes and regulations for quite some time. In most states, if sales tax was initially paid on a financed transaction and the debt was subsequently written off, a credit, deduction or refund is allowed. Historically, retailers (and then retailer captive financing sources in the 1990s) recovered sales tax related to bad debts incurred by the retailer or its captive lender. 4 2
3 Overview Retailers then started to contract with third party lenders to directly finance purchases. The lenders thought they should be able to recover under the bad debt sales tax recovery statutes as the party that bears the loss and charges off the bad debts on its income tax returns for non-recourse transactions. Some states have enacted favorable legislation regarding sales tax recovery for charged-off accounts financed by third parties: California, Florida, Illinois, Michigan, Pennsylvania, Texas & Wisconsin. 5 Overview Other states have legislatively repealed favorable Court decisions (Indiana, Michigan & Washington); or Statutes (New York). Retailers also have established precedent for recovering sales tax on accounts charged-off by third parties in numerous additional states, especially where recourse can be shown. Legal entitlement is still in dispute in numerous other states For example, Illinois (for lenders, prior to new retailer only statute) and Vermont. 6 3
4 Overview Retailers may file claims and take credits or deductions in their own name for accounts charged-off by lenders in certain states: California, Florida, Illinois (starting with January 1, 2016 charge-offs), Michigan, Pennsylvania (refund only), Texas (with assignment), and Wisconsin (effective for transactions on or after July 1, 2017). Lenders may file refund claims for bad debt sales tax recoveries in certain states (the retailer and lender may elect which party will claim the bad debt recovery): California, Michigan, Pennsylvania, and Texas. 7 Private Label Credit Cards Private label credit card: a card that can only be used at the retailer whose name or logo appears on the card, or at any of the retailer s affiliates. Many retailers issue private label credit cards for use exclusively in their stores. This trend has spread to multiple types of retailers (clothing, home improvement, general retail). Examples: Macy s Card, Lowe s Card, Target Card. Private label credit cards encourage cardholders to make more purchases with card issuers by extending credit and offering other incentives (such as discounts for purchases made with private label credit cards). 8 4
5 Administration of Private Label Cards When a retailer decides to issue a private label credit card, it generally enters into a program agreement with a third party bank to administer such functions as credit approval, billing and collection: The customer submits an application to the bank at the retailer s location. The bank reviews the application and makes the credit decision. If approved, the bank issues the card to the customer with the retailer s brand on the card. 9 Administration of Private Label Cards The customer purchases goods at the retailer s store using the private label credit card, with the bank extending credit to cover the purchase price and applicable taxes. The retailer reports a sale and remits sales tax. The customer is liable to the bank for the purchase price, taxes and any interest that accrues on the customer s account. Some customers default on their accounts, including amounts attributable to sales taxes that the retailer already remitted to the taxing jurisdiction. 10 5
6 Administration of Private Label Cards When the customer defaults, does the retailer have the right to take a bad debt deduction on its sales tax return? It depends: Who bears the risk of economic loss? The bank owns the account and is responsible for collection, but is the retailer required to indemnify the bank for bad debts? Sometimes, the bank is indemnified. The retailer s right to a bad debt deduction will often depend upon whether the retailer is the party ultimately bearing the economic loss of the default. 11 Policy Reasons For Legislative Change Permitting Recovery In PLCC Context State Retailer Associations are leading ongoing legislative efforts. The tax is imposed on the consumer in most states. The retailer is required to collect tax from the customer and remit to the state. In a credit sale, the retailer must remit the tax to the state before the consumer is required to pay his or her bill. In effect, the retailer is giving the state an interest free loan. If the consumer defaults, the state should not retain the tax, resulting in a windfall. 12 6
7 Common State Tax Issues 13 Eligibility Are bad debt recoveries limited to retailers or are financial institutions eligible? The majority of states preclude financial institutions from receiving a refund or taking the deductions. Some states will allow lenders to take the deduction. For example: o California: Retailer or lender may deduct; must file an election. (CAL REV. & TAX. CODE 6055 (b)) o Pennsylvania: Vendor or lender may elect who is eligible. 72 (P.S (a.2)) 14 7
8 Documentation What type of documentation is required to substantiate entitlement to the bad debt deduction? Many states do not provide specific documentation requirements. Others provide very detailed requirements: o California: The taxpayer must keep records that contain: (1) the date of the original sale;(2) the name/address of the purchaser;(3) amount purchaser contracted to pay; (4) amount on which retailer paid tax; (5) jurisdiction where taxes were paid;(6) payments applied to purchaser s account;(7) evidence the debt has been legally charged off; and (8) calculable percentage of amount taxable compared to entire debt owed. (CAL. CODE REGS. tit (e)) 15 Documentation o Maine: Retailers must maintain the: (1) Date of the original sale; (2)Name and address of the purchaser; (3) Amount the purchaser contracted to pay; (4) Amount on which the retailer paid tax to the State; (5) All payments and other credits applied to the account of the purchaser; (6) Evidence that the uncollectible amount on which tax was paid to the State actually has been charged off. Sales and Use Tax Instructional Bulletin No
9 Documentation The trend in many states is to provide more flexible criteria to establish the entitlement to a bad debt recovery. Florida HB 5601 (d) A dealer must use one of the following methods to determine the amount of the credit or refund: 1. An apportionment method to substantiate the amount of tax imposed under this chapter which is included in the bad debt to which the credit or refund applies. The method must use the dealer's Florida and non-florida sales, the dealer's taxable and nontaxable sales, and the amount of tax the dealer remitted to this state; or 2. A specified percentage of the accounts or receivables giving rise to the credit or refund, which is derived from a sampling of the dealer's or lender's records in accordance with a methodology agreed upon by the department and the dealer. 17 Documentation Texas Tax Code (f) A person whose volume and character of uncollectible accounts warrants an alternative method of substantiating the reimbursement or credit may: (1)maintain records other than the records specified in Subsection (e) if: (A) the records fairly and equitably apportion taxable and nontaxable elements of a bad debt and compute the amount of sales tax imposed and remitted with respect to the taxable charges remaining unpaid on the debt; and (B) the comptroller approves the procedures used; or (2) implement a system to report its future tax responsibilities based on a historical percentage calculated from a sample of transactions if: (A) the system utilizes records provided by the person claiming the credit or reimbursement; and (B) the comptroller approves the procedures used. 18 9
10 Definition of Bad Debt How is bad debt defined under state law? Often tied to Federal Income Tax deduction pursuant to Internal Revenue Code 166 and the regulations thereunder. For example: o Worthless and actually written off as uncollectible for federal income tax purposes. o Eligible to be claimed as a deduction pursuant IRC Statute of Limitations What is the statute of limitations for taking the bad debt deduction? 3 to 4 years from enumerated event is common. Time frame can be shorter: o Florida: Dealers must apply for refunds within 12 months of the month in which the bad debt was charged off for federal tax purposes. (F.S.A (3)) What is the enumerated event that starts clock? o Charge-off on books for federal income tax purposes o Filing of the sales tax return on which deduction could first be claimed o Date the tax is remitted 20 10
11 State Example: Statute of Limitations Problem 21 Statute of Limitations Example Pennsylvania Vendors allowed bad debt deduction if: o Purchaser fails to pay total purchase price; o Purchase price is written off (in whole or in part) on books and records; and o Debt has been deducted for federal income tax purposes on the federal tax return under IRC 166. (72 PA. STAT. ANN ) 22 11
12 Noteworthy Cases 23 Bangor Car Care Bangor Car Care, Inc. v. State Tax Assessor, No. BCD-AP-11-12, 2013 Me. Super. LEXIS 29 (Me. Super. Ct. Mar. 11, 2013). Taxpayer was a retailer of motor vehicles that entered into installment sales contracts and then assigned the contract on a recourse basis to third party lenders. The substance of the agreement required the taxpayer to reimburse the lender if a customer defaulted on the loan. Eligibility of recourse-debt losses for bad debt credit not disputed. Here, taxpayer could not provide adequate documentation
13 Linnehan Leasing Linnehan Leasing v. State Tax Assessor, 898 A.2d 408 (Me. 2006). 25 The taxpayer assigned the right to receive payment to a related party in exchange for a discounted price that reflected the risk of default. For accounts that became uncollectible, the related party (and not the taxpayer) charged the accounts off on its books and records and deducted the amounts for income tax purposes. The taxpayer was not required to indemnify related party for the worthless accounts and was thus not entitled to bad debt credit. Followed in Sears, Roebuck. Home Depot Home Depot USA, Inc. v. Oklahoma Tax Commission, 198 P.3d 902 (Okla. Civ. App. 2008) Third party finance company with which taxpayer had contracted owned the accounts and deducted the uncollectible portions for federal income tax purposes. Taxpayer contended that it bore the risk of loss because it paid the finance company a service fee, which included a bad debt component. Oklahoma law required the taxpayer to be eligible to claim the deduction under IRC
14 Home Depot Home Depot USA, Inc. v. Oklahoma Tax Commission, 198 P.3d 902 (Okla. Civ. App. 2008) OTC denied Home Depot s sales tax deduction for PLCC bad debts because there was no evidence that Home Depot could deduct the Service Fee... pursuant to Section Home Depot had to have been eligible to take a deduction pursuant to 1366 [the Oklahoma counterpart to IRC 166] and it was not. That was the choice it made when it fashioned the agreement with the private credit card issuers. After the initial transfer of the accounts, Home Depot could suffer no further benefit nor detriment with regard to the credit card accounts. Questions?
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