Tax Foundation taxfoundation_episode_21 Page 1 of 7 Chris Atkins and Arthur Rosen

Transcription

1 Tax Foundation taxfoundation_episode_21 Page 1 of 7 Hello. I m Chris Atkins, Staff Attorney at the Tax Foundation. Today s guest is Arthur Rosen. Art is a partner in the New York City office of the law firm of McDermott, Will & Emery, from where he chairs the firm s nationwide state and local tax practice. Formerly the Deputy Counsel of the New York State Department of Taxation and Finance, as well as counsel to the Governor s Temporary Sales Tax Commission. Mr. Rosen has held executive tax management positions at Xerox Corporation and AT&T. Art is widely recognized as a leading authority on state and local tax law, including constitutional limitations on state tax authority. Thanks for being on the show today with us Art. Thanks for the invitation Chris. You re welcome. I want to get started by talking about a recent case in the West Virginia Supreme Court. That court recently issued an important nexus ruling in the case of Tax Commissioner vs. MBNA America Bank. Art, can you give our listeners some background about this controversy and your involvement in the case? This case stems out of statutes that were enacted in, I think, seven states around the country during the early 1990s. And those statutes seek to impose direct taxes, income taxes or franchise taxes, on financial institutions such as credit card issuers or mortgage companies, or banks that merely have customers within a state s boundaries. And so this was a departure from what, I believe, and I think most people believe, was traditionally accepted as the law in this country that a state had the right to tax anything within its own borders, and not something outside its own borders. And so this case is one of several around the country where financial institutions are challenging tax impositions based on these statutes. This is the one that is in the lead as far as timing and the process goes, and I have been representing MBNA since the hearing at the administrative level in this matter. What was the State of West Virginia on what basis were they alleging that they could tax MBNA s income? Well, there were two. The statutory basis in West Virginia is that the financial institution has a certain level of business, a certain Page 1 of 7

2 Tax Foundation taxfoundation_episode_21 Page 2 of 7 amount of receipts over a threshold, then that institution is subject to the income and franchise taxes in the state. The State Supreme Court, however, in upholding the statute when it was challenged based on constitutional grounds said that because there was a lot of market exploitation, a substantial amount of market exploitation, the Commerce Clause, the potential nexus requirement, was met, and therefore, the statute and the imposition of the tax under the statute were valid. So basically West Virginia was saying, MBNA has customers in our state that have credit cards, that are using those credit cards, and since they are deriving income from those customers, we can tax their corporate income. Precisely. Precisely. Art, if this case is appealed to the U.S. Supreme Court, do you think the U.S. Supreme Court will agree to review the decision? I would hope so because this is a hot issue, if not the hottest issue in state taxation. This has been kicking around for about 40 years. The question of when a state can exercise its jurisdiction outside of its borders, and this case presents a very clean factual situation. There was a stipulation to all the relevant facts, including the most important one, that MBNA had neither tangible property nor any employees within the state. And notwithstanding that, the State Supreme Court upheld their position anyway. So, have any other state courts reached results similar to that that the West Virginia Supreme Court reached in the MBNA case? Well, the way that I see it anyway, there is one other decision that is directly on point, and the Tennessee Appellate Court in JC Penny/National Bank under almost identical facts as those that are present in the West Virginia case for MBNA, held the opposite than the West Virginia Supreme Court. The Tennessee Court found that without physical presence within the state, the entity, the corporation was not subject to that state s direct taxes. Well let s move for a moment from the details of the MBNA case and consider the larger policy implications here. As you know, Art, there are generally two competing views about nexus that is, when a state can impose its tax jurisdiction under the Commerce Clause. There is the view of economic presence, and then there is Page 2 of 7

3 Tax Foundation taxfoundation_episode_21 Page 3 of 7 a view of physical presence, which you have also mentioned. Could you briefly explain both of those points of view for our listeners? Sure. Economic nexus or economic presence means that the company has some economic benefit, earned some profit from its relationship with the state. The way I usually define it is having a customer in a state is having economic nexus with that jurisdiction. In contrast is physical presence, which means as I said earlier, that the business has either employees or tangible property within the state s borders. And those are really the competing views. It is fair to say that that s where the battle is, is between those two competing views. Correct? That s absolutely right, and I think that, with certain exceptions, this is really a philosophical, political argument between those states that have very little within their borders don t have their own infrastructure for good commercial activity, or industrial activity. So they are not generating any wealth or helping any company that s generating income, yet they want to grab some of the profit. It is no different then you will have in lesser-developed countries, I think, seeking foreign aid pretty much. And this is not a new debate, right? This goes back at least 50 or 60 years. Well I m not sure for direct taxes it s that old. I would think that you really see activity in this area after National Bellas Hess was decided in 1965 or 67, I m not sure. But, in the mid-1960s when National Bellas Hess was decided, this issue really came to the fore, and that s because prior to that everybody, I believe, assumed that physical presence was required. You read every nexus case, jurisdictional case, that the U.S. Supreme Court decided, and the entire focus is on the in-state activities of the putative taxpayer. Not since the mid-1960s when the U.S. Supreme Court decided National Bellas Hess did states start thinking, O h, well, maybe that s sales tax. We can start looking for other taxes to tax businesses when they are not within our border. And then the Quill decision in 1992 really accelerated the process because there the Supreme Court said that this physical presence idea was applicable in sales taxes, and that s all we re Page 3 of 7

4 Tax Foundation taxfoundation_episode_21 Page 4 of 7 going to say in that case. And a number of states took that as a sign that physical presence was not necessary for other taxes, which the Supreme Court never said, and started enacting a lot of statutes and taking administrative positions supporting economic nexus. And those cases you mentioned are National Bellas Hess and Quill. In those cases by and large the Supreme Court was wrestling with the question of what limitations the federal Commerce Clause puts on the right of states to tax companies with activity within their borders. When I was in college one of my economic professors said that the Commerce Clause was basically intended to set up a 50-state free trade zone, which would encourage economic growth. Do you think a physical presence or economic presence rule best represents this goal of the Commerce Clause? Well if in fact that is the correct goal, to me your professor might have been a little bit overly broad. I think Spector Motors, Complete Auto, and all those cases, we know interstate commerce itself is not exempt from tax and has to bear its fair share of the burden. But I think it clearly hurts the free flow of commerce across state lines if merely having a customer means a business can be subject to tax in the jurisdiction, which means there are tens of thousands of localities in this country that impose license taxes. Now just think about those also, not just the state income taxes. And if this approach, economic nexus approach, is upheld, we are going to be faced with every business having to consider paying taxes in every little jurisdiction where it happens to have a customer. We think that really is an undue burden. Interstate commerce is really going to hurt the American economy. And secondly, we think that is contrary to the concept of taxation that only those jurisdictions that provide benefits and protections to a business should be able to impose tax on that business. And if a company has no employees in a state, has no property in the state, that state government is not really providing direct protections or benefits to the out-of-state company, and therefore, that out-ofstate company should not have to pay tax to that jurisdiction. We are really seeing this becoming part of the policy debate in the states. We are seeing states embark on historic efforts to reform their business tax systems right now. In many of those states, gross receipts taxes are a part of the debate. In fact, Ohio two Page 4 of 7

5 Tax Foundation taxfoundation_episode_21 Page 5 of 7 years ago enacted a new gross receipts tax that used the economic presence theory. In other words, if you have sales in Ohio, you owe us gross receipts tax regardless of how much property or payroll you have in our state, or even if you have no property or payroll. Several other states, as I said, are currently looking at adopting these types of taxes. Do you think business taxpayers are going to challenge gross receipts taxes on nexus grounds? I d like to separate those two discussions. One is gross receipts taxes, and the other is the nexus inquiry. You can have a nexus provision as Ohio enacted in its commercial activity tax in an income tax context. And so those are two really different debates. The gross receipts taxes that have been struck down around the country have been done so because they were not apportioned appropriately. So I think the question is, is an economic nexus approach such as enacted by Ohio a wave of the future? And I m not sure because I think you see some companies, to answer your direct question. Some companies I ve heard in Ohio are saying, This is great because we are not going to have to pay any Ohio tax now, very little. All the tax or offers for benefits are being paid by out-ofstate companies. This is wonderful because of the new nexus rules. However, sooner or later these businesses are going to realize, O h, if every other state does this, I m going to have pay tax all around the country. Everywhere except where I m located. Exactly. So I think as soon as people learn that and realize the implications of economic nexus that the policymakers will start listening. That s my hope anyway. Last question, Art. Last year, as you know, there was a bill in Congress, HR1956, that would have restricted, among other things, would have restricted a state from taxing companies with no in-state physical presence. Do you think a similar bill will be introduced in the new Congress, and how do you rate its chance of passage? I m pretty sure that a similar bill will be introduced and I would hope in both houses of Congress, and I think the chances are very Page 5 of 7

6 Tax Foundation taxfoundation_episode_21 Page 6 of 7 reasonable. I am not going to say that it is a done deal. It s far from that, and it s clearly not dead on arrival. And so it is someplace in between, like everything in Congress. What I have learned in my many years of life is that you never know what is going to happen in politics. And I think the fact that you have Democratic leadership in both houses this year caused some people to think immediately that any, I call it pro-jobs or pro-business legislation is dead on arrival. But you remember that the bill you are talking about in the Senate, the BATSA Bill was introduced by Senator Chuck Schumer, a very powerful Democrat. And in the House there was bipartisan sponsorship, Democrats and Republicans. So I don t think the change in majority in the two houses will have necessarily direct effect on the fate of that legislation. Well, do you think this was an issue Congress should ultimately decide, or should we let the courts sort of percolate the issue? Well I think there is very little question that somebody in Congress should decide, and I think the West Virginia Supreme Court admitted or confessed that it was making up new law. It said that we need an elastic test, the test around for 200 years is no longer good. So here is a new way of doing it, this idea of substantial economic nexus, you have a lot of customers. And I think, I would hope the Supreme Court, for example, would say that s not for a state to decide. If there is going to be a change in the law that is what we have Congress for. Congress has the power, the authority, responsibility for ruling under the Commerce Clause. And so this affects interstate commerce to a huge degree, as well as foreign commerce actually. And therefore, it s Congress s job to change the law. So I am very hopeful that Congress will do that. All right, well unfortunately we are out of time. As you know, you and I could talk about this all day, but we really appreciate you being on the show and I know this issue that we ve talked about today has potentially huge implications on the tax policy debate. So thanks for helping our listeners understand this issue and I hope to have you back sometime in the future. Great. Thanks for having me. Page 6 of 7

7 Tax Foundation taxfoundation_episode_21 Page 7 of 7 Announcer: Thank you. Have a good day. The Tax Policy Podcast is produced by the Tax Foundation, a nonpartisan, non-profit tax research group that is monitored fiscal policy at the federal, state and local levels since Please help support our programs by making a tax deductible contribution at Page 7 of 7