State & Local Tax Alert Breaking state and local tax developments from Grant Thornton LLP Idaho Supreme Court Addresses Cost of Performance Application On October 29, the Idaho Supreme Court upheld a district court decision and found that receipts from sales of Internet service to Idaho customers were sourced as Idaho receipts for purposes of computing the Idaho income tax sales factor. 1 Specifically, the ruling applied the cost of performance (COP) sourcing rule generally used in Idaho to determine the amount of receipts from sales of services sourced to Idaho. Background Cable One, Inc., a Delaware corporation headquartered in Arizona, provides cable and Internet services to customers located in various states, including Idaho. For the 2005 tax year, Cable One received receipts from its Idaho customers related to four activities: (i) the provision of cable television services; (ii) the provision of Internet access services; (iii) the provision of advertising services; and (iv) the leasing of cable modems. In computing its Idaho sales factor numerator, Cable One included revenues earned from Idaho customers related to all of the listed activities except for providing Internet access. Believing the receipts from the provision of Internet services were properly sourced to Arizona based on Idaho s COP rule, Cable One excluded these receipts from the numerator of its Idaho sales factor. The Idaho Tax Commission issued a notice of deficiency determination to Cable One for tax and related interest for the 2005 tax year based on the inclusion of the receipts from Idaho customers for Internet service in the numerator of the sales factor. The Tax Commissioner denied Cable One s timely filed petition for redetermination. Cable One then filed a complaint in the district court, 2 which ruled in favor of the Tax Commission. Cable One appealed that decision to the Idaho Supreme Court. Release date November 21, 2014 States Idaho Issue/Topic Corporate Income Tax Contact details Jamie C. Yesnowitz Washington, DC T 202.521.1504 E jamie.yesnowitz@us.gt.com Dale Busacker Minneapolis T 612.677.5185 E dale.busacker@us.gt.com Chuck Jones Chicago T 312.602.8517 E chuck.jones@us.gt.com Lori Stolly Cincinnati T 513.345.4540 E lori.stolly@us.gt.com www.grantthornton.com/salt Internet Access Service Cable One relied upon several distinct parts of its broadband cable networks to provide Internet access to its Idaho customers, as well as some services which were provided from its Arizona headquarters location. Specifically, Cable One relied upon the following components located in Idaho, which were defined at the district court level: (i) cable 1 Cable One, Inc. v. Idaho State Tax Commission, Idaho Supreme Court, Docket No. 41305-2013, Oct. 29, 2014. 2 Pursuant to IDAHO CODE 63-3049(a)..
Grant Thornton LLP - 2 modem; (ii) drop; (iii) loop; (iv) nodes; (v) head end; and (vi) Internet backbone. Only a portion of the equipment used in the Internet backbone was owned by Cable One. Similarly, Cable One relied upon its Phoenix headquarters to provide certain services including a Solution Center and Network Operations Center, which were essential to providing Idaho customers with Internet access. Together, these services provided necessary personnel, routers, servers, and related equipment and software to support the Internet services provided by Cable One throughout its cable systems. Discrete parts of the back office as identified and defined by the district court included the following: (i) Internet backbone; (ii) router; (iii) solution center; (iv) network operations center; (v) provisioning module; (vi) LDAP module; (vii) SNMP module; (viii) DHCP module; (ix) TFTP module; (x) DNS module; (xi) associate e-mail module; (xii) billing module; (xiii) DAC (digital video) module; and (xiv) customer e-mail module. Again, only a portion of the equipment used in the Internet backbone was owned by Cable One. A portion of the Internet backbone used by Cable One was procured from two third-party providers to obtain high-speed data access to the World Wide Web. Specifically, the backbone consisted of both: (i) a local service connection including a fiber optic connection from Cable One s Arizona location to a facility owned by the third party; and (ii) a dedicated Internet access port at the local third-party provider facility that provided high speed data access to the World Wide Web. The Internet backbone was used to transmit data between customer locations in Idaho and Cable One s Arizona facility and to access the Internet. Application of COP Rule For a corporation transacting business within and outside Idaho, a formula is prescribed to compute Idaho taxable income. 3 A corporation s business income is apportioned to Idaho by multiplying its income by a fraction based upon the taxpayer s payroll factor, property factor, and two times the sales factor divided by four. 4 The dispute in this case focused on the calculation of the sales factor, which is generally computed based on the total sales of the taxpayer in Idaho divided by the total sales of the taxpayer everywhere for the period at issue. 5 Idaho treats sales from items other than sales of tangible personal property as Idaho sales if the income-producing activity is performed both in and outside this state and a greater proportion of the income-producing activity is performed in this state than in any other state, based on costs of performance. 6 The Court began its analysis by identifying the income-producing activity at issue. Pursuant to the regulation adopted by the Tax Commission, the term income-producing activity applies to each separate item of income and means the transactions and activity directly engaged in by the taxpayer in the regular course of its trade or business for the ultimate purpose of obtaining gains or profit. 7 An income-producing activity also includes the use of tangible and intangible property by the taxpayer in performing a 3 IDAHO CODE 63-3027. 4 IDAHO CODE 63-3027(i). 5 IDAHO CODE 63-3027(p). 6 IDAHO CODE 63-3027(r)(2). 7 IDAHO ADMIN. CODE 35.01.01.550.02.
Grant Thornton LLP - 3 service. 8 Based on this regulatory guidance, the Court found that the income-producing activity at issue was the provision of Internet services to customers located in Idaho, rather than, as Cable One argued, the provision of Internet services to customers located throughout nineteen states. Cable One contended that it purchased dedicated interstate services from its backbone service providers to connect each of its cable systems to each other and to its Arizona headquarters and that the service was provided through the use of a dedicated, point-topoint service between a router in Idaho and a router in Arizona. Furthermore, Cable One noted that it could not have operated its Idaho cable systems without connecting to its headquarters in Arizona via the connection facilitated by the Internet backbone services. Finally, Cable One argued that the location of the income-producing activity was irrelevant to the determination of the COP of the service. In rejecting this argument, the Court noted that in order for an income-producing activity to be performed in more than one state, the taxpayer must first have activities in more than one state that combine to produce the item of income at issue. Cable One s activities in both Idaho and Arizona combined to produce the revenue from sales of Internet services to Idaho customers. The COP of the activities that produced the relevant income is simply the metric used by Idaho to quantify the income-producing activity in each state in order to apportion income. Once the income-producing activity was identified, the Court addressed how to quantify the costs of performing that activity. COP is defined to include the direct costs determined according to generally accepted accounting principles and accepted conditions or practices of the taxpayer s trade or business. 9 To determine the direct costs incurred by Cable One to provide Internet access to Idaho customers, the Court relied upon a previously provided affidavit from Cable One. Specifically, the direct costs 10 included: (i) costs for Idaho employees and local offices; (ii) Idaho s share of the long distance communication services purchased from third parties by Arizona headquarters for use by all Cable One systems everywhere, and (iii) Idaho s share of the customer support services and Network Operations Center services provided from the Arizona headquarter location. The Court relied upon this affidavit, as well as district court evidence in the form of an accounting entry showing the amount paid to third parties for the Internet backbone, to determine the total direct costs incurred to provide Internet access to Idaho customers. The Court rejected Cable One s contention that it failed to distinguish direct costs from common costs since Cable One itself had referred to the included costs as being direct costs. 8 IDAHO ADMIN. CODE 35.01.01.550.02.a. 9 IDAHO ADMIN. CODE 35.01.01.550.03 (2005). 10 The district court had found that direct costs incurred in the provision of the Internet service by Cable One to its Idaho customers also included depreciation expense attributable to high speed data capacity and a percentage of the Idaho qualified broadband tax credit. However, these amounts proved immaterial in the final analysis of costs incurred in Idaho, so this issue was not addressed by the Court.
Grant Thornton LLP - 4 While the Idaho local office costs were incurred in Idaho and the allocated Arizona back office costs were incurred in Arizona, the costs related to the backbone services procured from third parties were incurred at multiple locations. Since Cable One was using equipment and the Internet backbone located in Idaho and owned by third parties in order to provide Internet services to Idaho customers, some of the income-producing activity to provide Internet services to Idaho customers occurred in Idaho. In conclusion, the Court relied upon the direct cost information to determine whether a greater proportion of the income-producing activity was performed in Idaho than in any other state, based on COP. Based upon the direct costs incurred by Cable One to provide Internet services to Idaho customers, 68 percent were incurred performing incomeproducing activities in Idaho. Thus, pursuant to the all-or-nothing COP rule applicable in Idaho, the revenue from the sales of Internet services to Idaho customers was found to be wholly includable in the numerator of Cable One s Idaho sales factor. Commentary While the trend towards market-based sourcing for sales factors only seems to be increasing in popularity, 11 proper application of existing COP rules in jurisdictions like Idaho remains relevant. Though these rules may appear simple to apply, in practice specific facts and circumstances can lead to unexpected results. The decision in the Cable One case was very fact-dependent and demonstrative of at least two differing approaches to determine where costs of performance were incurred. The taxpayer and the Tax Commission also differed in their interpretation of the service provided for which costs of performance needed to be determined. Taxpayers filing income tax returns in states using COP rules should refer to jurisdiction-specific guidance to ensure that they understand each jurisdiction s nuances of interpretation. While Idaho utilized an operational approach in analyzing the receipts at issue, other jurisdictions have applied a transactional approach. 12 Similarly, the Court s heavy reliance upon evidence originally produced by Cable One to support its decision should not go unnoticed. For example, Cable One s decision to label certain amounts as direct costs during the district court determination prevented an argument to treat the amounts as common costs at this level. Though not a novel concept, taxpayers should fully consider the implications and necessity of sharing information with taxing authorities during an audit or other formal proceeding. It is interesting to note that Cable One bore the burden of proving that the Commission s deficiency determination was erroneous in this case, based upon prior Court guidance. 13 Since the original issue arose as a result of a Tax Commission-initiated audit, the fact that Cable One was forced to bear the burden of proof could be perceived as unfair. 11 Rhode Island enacted market-based sourcing for sales factor purposes during 2014 with Ch. 145 (H.B. 7133), Laws 2014. New York took similar action with its enactment of Ch. 59 (A.B. 8559 / S.B. 6359), Laws 2014. The bill modified New York apportionment to a single receipts factor with a set of intricate customer-based sourcing rules. Specific provisions were enacted for various types of sales including other business receipts, rents and royalties, and digital products. 12 AT&T Corp. v. Department of Revenue, Oregon Tax Court, T.C. 4814, June 28, 2011. 13 Albertson s, Inc. v. Department of Revenue, State Tax Commission, 683 P.2d 846 (Idaho 1984).
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