July 13, 2020
State and Local Tax Weekly for June 30
Ernst & Young's State and Local Tax Weekly newsletter for June 30 is now available. Prepared by Ernst & Young's State and Local Taxation group, this weekly update summarizes important news, cases, and other developments in U.S. state and local taxation.
State tax agency responses to the COVID-19 pandemic
The Indirect Tax COVID-19 state response matrix provides updates on the latest state tax agency responses related to the COVID-19 emergency. The matrix is available on EY's Indirect Tax COVID-19 state response website, which is accessible directly through this link, or on ey.com where other important tax-related information pertaining to the COVID-19 emergency is available.
California enacts 2020–2022 NOL suspension and business tax credit limitation
On June 29, 2020, California Governor Newsom signed AB 85 (Cal. Laws 2020, ch. 8) which temporarily suspends the use of California net operating losses (NOLs) and imposes a cap on the annual amount of business incentive tax credits companies can utilize against their net income.
As set forth in the act, California NOLs are suspended for tax years beginning on or after Jan. 1, 2020 and before Jan. 1, 2023 for taxpayers with net business income of $1 million or more. Similar to NOL suspensions California has previously enacted, AB 85 includes an extended carryover period for the suspended NOLs with an additional year carryforward for each year of suspension. The suspension applies only to the use of California NOLs for tax years 2020, 2021 and 2022. Accordingly, for tax year 2019, corporate taxpayers will still be able to utilize NOL carryforwards on their California returns.
AB 85 also limits the use of business incentive tax credits for tax years 2020, 2021 and 2022, requiring that credits may not reduce the applicable tax by more than $5 million. Significantly, the $5 million limitation will be applied on a combined group basis such that the aggregate tax of all members of the combined reporting group cannot be reduced by more than $5 million due to tax credits. The corporate tax credits that are subject to limitation under this provision include the following: the research and development credit, jobs tax credit, California competes credits and motion picture production credits. On the corporate tax credit portion of the provision, there is an exclusion from the limitation for the low-income housing tax credit. If a taxpayer is unable to use a credit due to the limitation, then the carryforward period for the credit is extended with an additional carryforward year for each year the credit is impacted by the limitation.
For additional information on this development, see Tax Alert 2020-1691.
Multistate: The latest state income tax quarterly, which provides a summary of the significant legislative, administrative and judicial actions that affected state and local income/franchise and other business taxes for the second quarter of 2020, is now available. Highlights in this issue include: (1) a summary of legislative developments in California, Colorado, the District of Columbia, Georgia, Iowa, Kansas, Kentucky, Maryland, New Mexico, New York, New York City, North Carolina, Oregon, Portland, OR and Wisconsin; (2) a summary of judicial developments in Maine, Michigan, Mississippi, North Carolina, Oregon and Texas; (3) a summary of administrative developments in Alabama, California, District of Columbia, Georgia, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Dakota, Oregon, Pennsylvania, Philadelphia, PA, Rhode Island and South Carolina; and (4) a discussion of state and local tax items to watch in Colorado and New York. See Tax Alert 2020-1749 for a copy of the newsletter.
Arkansas: In response to a letter opinion request, the Arkansas Department of Finance and Administration (Department) found that even though an out-of-state housing finance agency that is an instrumentality of another state (agency) has nexus with Arkansas based on client transactions and activities arising out of Arkansas real estate and gross receipts arising from such transactions and activities ordinarily would be subject to Arkansas income tax, under the constitutional doctrine of intergovernmental tax immunity, as expanded by the Arkansas Supreme Court (Court), Arkansas may not impose tax on the agency. In Pledger,1 the Court adopted and extended the doctrine of intergovernmental tax immunity to govern the relationship between states. Thus, Arkansas many not impose tax on an instrumentality of another sovereign state (here, the entity) that it would not impose on a similar instrumentality of Arkansas (here, the Arkansas Development Finance Authority (ADFA)). Because the ADFA's income is exempt from Arkansas tax as an instrumentality of the state, the entity's income also is exempt from Arkansas tax. Ark. Dept. of Fin. and Admin., Op. No. 20181218: Intergovernmental Tax Immunity (June 4, 2020).
Colorado: New law (HB 1024) imposes a 20-year net operating loss (NOL) carry forward period and decouples Colorado income tax law from the federal unlimited carryover period enacted under IRC §172 authorized by the federal Tax Cuts and Jobs Act (P.L. 115-97) (TCJA) in 2017. This change applies to Colorado NOLs generated in income tax years commencing on or after Jan. 1, 2021. For tax years commencing before that date, Colorado NOLs may be carried forward for the same number of years allowed for a federal NOL. Colo. Laws 2020, HB 1024, signed by the governor on June 26, 2020.
District of Columbia: New emergency law (Act 23-328) allows corporations, unincorporated businesses and financial institutions "an 80% deduction for apportioned District of Columbia [net operating loss] carryover to be deducted from the net income after apportionment." This change is effective retroactively to tax years beginning after Dec. 31, 2017. D.C. Laws 2020, Act 23-328 (B23-0759), signed by the Mayor on June 8, 2020; expires Sept. 6, 2020.
New York City: New law (S. 8411 / A. 10519) decouples from certain provisions of the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-36) (CARES Act) for purposes of New York City's unincorporated business tax (UBT), general corporation tax (GCT), banking corporation tax and business corporation tax. These changes include:
The bill took immediate effect. N.Y. Laws 2020, ch. 121 (S. 8411 / A. 10519), signed by the governor on June 17, 2020.
New Mexico: New law (HB 6) decouples New Mexico's income tax law from the changes made by the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-36) (CARES Act) to the federal net operating loss (NOL) provisions in IRC §172, by defining an NOL deduction to mean the portion of the NOL carryover that may be deducted from the taxpayer's apportioned net income under the IRC as of Jan. 1, 2018, including the 80% of taxable income limitation. HB 6 took immediate effect. N.M. Laws 2020 (1st Special Session), ch. 4 (HB 6), signed by the governor on June 29, 2020.
Oregon: The Oregon Tax Court (OTC) held a corporation operating a "diversified worldwide entertainment company" is an "interstate broadcaster" that must apportion the receipts of its entire unitary group using the state's interstate broadcaster apportionment formula. The corporation argued that its unitary group included both broadcasters that lacked nexus2 with the state and non-broadcasters and that while the broadcasters may be subject to the special apportionment formula for broadcasters,3 its non-broadcaster members are subject to the state's standard three-factor apportionment formula. The OTC determined that both the Oregon legislature and its courts4 have rejected such a hybrid approach to apportionment of a combined reporting group and that the Oregon broadcaster apportionment statutes may properly be applied to the receipts of the entire unitary group filing an Oregon consolidated return, not just those taxpayers that are classified as broadcasters. Further, the OTC rejected the taxpayer's contention that the meaning of "broadcasting" as used in its Forms 10-K filed with the U.S. Securities and Exchange Commission, is different than the meaning of "broadcasting" used for Oregon income tax apportionment purposes, holding instead that the corporation's activities and significant revenue streams derived from broadcasting and advertising show that the taxpayer clearly "engages in interstate broadcasting." ABC, Inc. v. Ore. Dept. of Rev., TC-MD 170364N (Ore. Tax Ct. April 22, 2020) (unpublished).
SALES & USE
California: Emergency regulation (Cal. Code of Regs., tit. 18, § 1684.5) implements California's Marketplace Facilitator Act. The regulation: (1) explains registration requirements for marketplace facilitators and marketplace sellers on and after Oct. 1, 2019; (2) clarifies when a marketplace facilitator is the seller and retailer for purposes of a sale of tangible merchandise facilitated for a marketplace seller on and after Oct. 1, 2019; (3) provides procedures for a delivery network company to elect to be a deemed a marketplace facilitator; (4) defines certain terms, including "payment processing services", "payment order", "virtual currency", "listing products for sale", among others; and (5) includes illustrative examples. The emergency regulation took immediate effect upon filing with the California Secretary of State, and remain effective for two years from that date, unless amended or repealed by the California Department of Tax and Fee Administration before expiration of that period. Cal. Dept. of Tax and Fee Admin., emergency Cal. Code of Regs., tit. 18, § 1684.5 (approved by the Cal. Office of Administrative Law (OAL) June 29, 2020).
Maryland: New law (SB 121) provides a temporary sales and use tax exemption for materials, parts, and equipment (collectively, "parts") used to repair, maintain, or upgrade aircraft or the avionics system of an aircraft system if such parts are installed on an aircraft that (1) has a maximum gross takeoff weight of less than 12,500 pounds, or (2) has a maximum gross takeoff weight of 12,500 pounds or more and is primarily used in interstate or foreign commerce. The exemption is in effect July 1, 2020 through June 30, 2025. Md. Laws 2020, ch. 638 (SB 121), became law without the governor's signature on May 8, 2020.
Michigan: In a matter of first impression, the Michigan Supreme Court (Court) held a company's sales of container-recycling machines and repair parts are exempt from sales and use tax under the industrial-processing exemption because the temporal limitation specified in the general statutory definition of "industrial processing" in MCL 205.54t(7)(a) and MCL 205.94o(7)(a) (Subsection (7)(a)) does not apply to the enumerated list of "industrial processing" activities in MCL 205.54t(3) and MCL 205.94o(3) (Subsection (3)). Citing Detroit Edison5 as general guidance, the Court found that extending Subsection (7)(a)'s temporal limitation to all requests for such exemptions would leave parts of Subsection (3) without meaning or function in the statute. Rather, the Court found Subsection (3)'s list of industrial processing activities controlled as the more specific provisions compared to the more general provisions in Subsection (7)(a), and the time frame provided in in Subsection (7)(a) did not apply. Notably, before reaching this conclusion, the Court clarified that the canon requiring strict construction of tax exemptions should be used as a last resort, such as "when an act's language, after analysis and subjection to the ordinary rules of interpretation, presents ambiguity." Because the statutes at issue in this case were unambiguous the rule of strict construction of tax exemptions did not apply. TOMRA of North America, Inc. v. Mich. Dept. of Treas., Nos. 158333 and 158335 (Mich. S.Ct. June 16, 2020).
Mississippi: New law (HB 379) adopts marketplace facilitator provisions, effective July 1, 2020. Under the law, a person is doing business in Mississippi includes a marketplace facilitator, a marketplace seller or a remote seller with sales in excess of $250,000 in any consecutive 12-month period. For purposes of determining whether the threshold has been met, a sale made through a marketplace facilitator is a sale of a marketplace facilitator and not the marketplace seller. A marketplace facilitator shall collect taxes on sales through its marketplace based upon the address where the tangible personal property (TPP) or specified taxable digital products are shipped or delivered; taxes on services sold through its marketplace, however, are collected as otherwise provided in Mississippi law. A marketplace facilitator is relieved of liability for failure to collect and remit the correct amount of tax to the extent the failure was due to incorrect or insufficient information given to the marketplace facilitator by the marketplace seller (this relief does not apply if the two are related). Further, a marketplace facilitator and a marketplace seller can contractually agree to have the marketplace seller collect and remit all taxes and fees (only applies if the seller has over $1 billion in US gross sales, among other criteria). In addition, the law defines "marketplace facilitator", "marketplace seller", and "remote seller", and expands the definitions of: (1) "retailer" to include persons that facilitate the sale of services or TPP that belongs to a third party; (2) "retail sale" to include a sale made or facilitated by a person regularly engaged in the sale or facilitation of sales of services or TPP; and (3) "doing business" to include any person selling or facilitating the sale of services or TPP. Such retail sales do not include sales by a third-party food delivery services that delivers food from an unrelated restaurant to a customer. Miss. Laws 2020, HB 379, signed by the governor June 30, 2020.
Nevada: New and amended regulations (LCB File No. R056-18) clarify when food sold at retail is subject to sales and use tax as a prepared food intended for immediate consumption. A new regulation provides a calculation to determine how often food is deemed to be sold with eating utensils provided by the seller, based on the percentage of food the seller sells as prepared food. Sellers that made retail sales of food in more than one establishment during the year must apply the calculation for each establishment and then average those calculations. An alternative calculation with estimates is provided for a new business or a business that did not make any retail sales of prepared food during the immediately preceding year. An amended regulation modifies the definition of "prepared food intended for immediate consumption" to exclude food sold as a single item that according to nutrition labeling information contains four or more servings per container, if the seller maintains proper sales documentation. Lastly, sellers that made retail sales of prepared food during the year immediately before the year in which these provisions become effective must perform the prepared food calculation by no later than 90 days after the regulation's effective date. The Nevada Department of Taxation will post information on when it will begin enforcing these provisions on its website. Nev. Tax Comn., Reg. LCB File No. R056-18 (filed June 8, 2020).
Chicago, IL: Proposed ordinance (O2020–3395) would establish requirements for the City of Chicago to revoke certain Cook County tax incentive classifications. Factors that could be considered in determining whether to revoke a property tax incentive would include: (1) failure to comply with laws related to the payment of wages, human rights, wage theft, civil rights and various forms of discrimination, among others; (2) Cook County or Chicago property tax payment delinquency; (3) inaccuracies or omissions in taxpayer-submitted documents; (4) failure to adequately maintain or invest in the project in order to meet the stated redevelopment objectives; (5) failure to comply with any goals, commitments, or reporting criteria related to city resident employees or to businesses owned or operated by minorities, women, people with disabilities, veterans or disadvantage business enterprises; or (6) if environmental remediation is part of the reason for granting the tax incentive, failure to comply with any applicable environmental laws or regulations. Chicago's ordinance outlining the revocation requirements would take effect upon passage and approval. On June 17 2020, the Chicago City Council approved a resolution (R2020-353) calling for hearing(s) to establish a framework and criteria for revoking tax incentives in accordance with the Cook County Tax Incentive Ordinance. City of Chicago., proposed ordinance O2020–3395, referred on June 17, 2020.
South Carolina: New law (HB 3998) allows a taxpayer (e.g., corporation, pass-through entity) eligible to claim a federal housing tax credit under IRC § 42 to claim a South Carolina housing tax credit. The credit can be claimed against corporate and individual income tax, bank tax, corporate license fees, and insurance premium and retaliatory taxes. The credit is allowed with respect to each qualified project placed in service after Jan. 1, 2020 and before Dec. 31, 2030. The amount of the credit is equal to the federal housing tax credit allowed with respect to the qualified project, and if a portion of the federal housing tax credit is required to be recaptured, a portion of the state tax credit also must be recaptured. The amount of credit claimed for South Carolina purposes may not exceed the taxpayer's income tax liability; unused credit may be carried forward for five years (carryback is not allowed). The South Carolina Housing and Finance Development Authority will issue an eligibility statement certifying that a project qualifies for the South Carolina housing tax credit. These provisions took effect upon approval by the governor. S.C. Laws 2020, Act 137 (HB 3998), signed by the governor on May 14, 2020.
Louisiana: New law (SB 205), for purposes of reporting federal income tax adjustments, defines "final determination" to mean any of the following: (1) the taxpayer's execution of federal Form 870 or its equivalent agreeing to the final and complete disposition of all deficiencies or overassessments (if the agreement is subject to final approval by the IRS, the Joint Committee on Taxation or the U.S. Department of Justice, the agreement is considered final when the taxpayer receives a copy of the agreement executed by the government); (2) the expiration of time by statute to petition the U.S. Tax Court for a deficiency notice redetermination; (3) the execution of a signed closing agreement between the taxpayer and the IRS that results in a final determination of all items in a completed federal audit; (4) the issuance of a final, non-appealable decision of the U.S. Tax Court, the U.S. Court of Federal Claims, a U.S. district court or a U.S. court of appeals, the U.S. Supreme Court or any of these courts' approval of a stipulation disposing of the case; or (5) the taxpayer's filing of an amended federal income tax return that changes state taxable income or state tax attributes. SB 205 takes effect Jan. 1, 2021. La. Laws 2020, Act 234 (SB 205), signed by the governor on June 11, 2020.
Virginia: New law (HB 1417) modifies Virginia law to adopt rules conformity to the federal partnership audit rules and amends other requirements related to reporting changes in federal taxable income (FTI) resulting from a federal audit or other IRS action, based on the Multistate Tax Commission's model statute. For partnership audits, the law requires partnerships and partners to report final federal adjustments arising from a partnership-level audit or an administrative adjustment request and make required payments and provides that the state partnership representative has the sole, binding authority to act on the partnership's behalf. Partnerships may make irrevocable elective payments in lieu of taxes owed by direct and indirect partners, but the Virginia Department of Taxation (Department) may in its discretion allow the election to be revoked. Alternative reporting and payment methods also may be available in certain circumstances, including to tiered partners. The Department may assess direct and indirect partners of audited partnerships for failure to pay any taxes owed. The law includes administrative provisions for any related tax changes, including due dates, penalties and interest. It also specifies when state income taxpayers must report federal tax changes and other changes to FTI to the Department based on "final determination date" and defines that term. Lastly, it extends the amount of time during which changes or corrections in taxpayer liability for any federal tax upon which the state tax is based can be made, to the later of three years from the last day to timely file the return or one year (previously 60 days) from the final determination date. The Department Is authorized to adopt regulations to implement these provisions. HB 1417 takes effect July 1, 2020. Va. Laws 2020, Ch. 1030 (HB 1417), signed by the governor on April 10, 2020.
PAYROLL & EMPLOYMENT TAX
Colorado: The Colorado state legislature passed SB 20-205 that, if enacted, will require employers to provide paid sick leave to employees effective Jan. 1, 2021. Colorado Governor Polis took the lead on Colorado paid sick leave by issuing temporary, emergency paid sick time during the COVID-19 pandemic through his Colorado Health Emergency Leave Pay (HELP). For more on this development, see Tax Alert 2020-1621.
Louisiana: According to a Louisiana Workforce Commission representative, to further assist Louisiana employers during the COVID-19 national emergency, the due date for the second-quarter 2020 state unemployment insurance (SUI) wage and tax reports and SUI tax payment will be deferred to Sept. 15, 2020. For additional information on this development, see Tax Alert 2020-1639.
New Mexico: The New Mexico Taxation and Revenue Department (Department) announced that taxpayers with outstanding debts can create and enter into a payment plan through a self-serve option. The new program is available for all tax programs administered by the Department, including withholding tax. The Department also announced it will extend some modifications to collection efforts that were enacted to ease the burden on taxpayers facing financial difficulty as a result of the COVID-19 public health emergency. For additional information on this development, see Tax Alert 2020-1656.
Federal/International: The latest issue of TradeWatch, which outlines key legislative and administrative developments for customs and trade around the world, is now available, and can be accessed here.
VALUE ADDED TAX
International — Belgium: With entry into force as of June 8, 2020, the Belgian Government has approved a reduced Value-Added Tax (VAT) rate of 6% that will apply to restaurant and catering services as of June 8, 2020 through and including Dec. 31, 2020. The reduced VAT rate, however, does not apply to beers with an actual alcoholic volume strength of more than 0.5%, as well as other beverages with an actual alcoholic volume strength exceeding 1.2% vol. For additional information on this development, see Tax Alert 2020-1652.
International - Bulgaria: The standard value-added tax (VAT) rate in Bulgaria is currently 20%; a reduced VAT rate of 9% is only applicable for hotel accommodation services. As part of the emergency tax measures taken in response to the COVID-19 pandemic, the Bulgarian Parliament, on June 19, 2020, approved that the scope of the reduced VAT rate would be expanded to cover additional sectors, as outlined below. The reduced VAT rates are to be applied temporarily until Dec. 31, 2021. For additional information on this development, see Tax Alert 2020-1641.
International — Kenya: The Kenyan Cabinet Secretary for National Treasury and Planning has issued draft Value-Added Tax (VAT) (Digital Marketplace Supply) Regulations, 2020 (the Regulations) for public commentary and subsequent approval by Parliament. The Regulations are intended to offer guidelines on the taxation of a "digital marketplace" following the introduction of taxation of such services under the Finance Act, 2019. These Regulations detail: (1) the scope of taxable supplies; (2) registration requirements; (3) simplified registration for nonresidents; (4) rules on place and time of supplies; and (5) invoice and record-keeping requirements, among others. Generally, the new rules apply to Business to Consumer (B2C) supplies. Business to Business (B2B) supplies are treated as imported services, which are subject to reverse charge. For additional information on this development, see Tax Alert 2020-1628.
International — Thailand: In January 2018, the Thai Revenue Department proposed a draft bill to amend the Value-Added Tax (VAT) law. Following public consultation earlier this year, the draft bill was reviewed by the Office of the Council of State and on June 9, 2020 it was approved by the Cabinet. The key objective of the VAT bill is to improve collection of Thai VAT on digital services rendered by e-business operators in foreign countries to individuals in Thailand. The focus of the bill, among others, is on global distributors of movie and music streaming services and online games. For additional information on this development, see Tax Alert 2020-1623.
International — United Kingdom: On June 22, 2020, the United Kingdom (UK) tax administration, Her Majesty's Revenue and Customs (HMRC) published a Business Brief to inform nonresident businesses not established in the European Union (EU) about current delays in processing and refunding value-added tax (VAT) claims submitted under the Overseas Refund Scheme (historically known as 13th Directive claims). The affected claims are those related to the prescribed year July 1, 2018 to June 30, 2019, submitted on or before Dec. 31, 2019. For additional information on this development, see Tax Alert 2020-1655.
Federal/Multistate: On Tuesday, July 21, 2020 from 1:00-2:15 (ET), Ernst & Young LLP (EY) will host a webcast on US corporate income tax compliance. EY professionals will discuss how companies can continue to navigate the complexity and challenges of the CARES Act and TCJA compliance, while preparing for tax year 2019 (TY19) and tax year 2020 (TY20). Click here to register for this webcast.
Multistate: On July 28, 2020 from 4:00-5:00 (ET), Ernst & Young LLP (EY) will host a webcast on teleworker tax implications during the COVID-19 emergency and beyond. In their response to the COVID-19 pandemic, states and localities issued stay-at-home orders and guidelines for social distancing that dramatically increased the number of employees working from home. As businesses begin to reopen, they are considering other benefits of teleworking and analysts predict that the COVID-19 emergency has sparked a new upward trend in telework arrangements that will survive long after the governmental responses to the immediate crisis subside. A shift in an employee's work location from the office to their home can have broad tax implications for businesses and employees that are important to consider when evaluating and implementing telework arrangements. To help employers identify the tax implications of telework arrangements, in this webcast, EY will bring together professionals from its employment and business tax subservice lines to discuss: state and local income tax withholding for residents and nonresidents; determining the applicable state for unemployment insurance and similar taxes; nexus implications for corporate income, sales and use and other business taxes; state and local tax relief made available to employers and employees in response to the COVID-19 emergency and their limitations; determining if travel expenses of home office workers are excluded from taxable wages; and steps in evaluating the feasibility of telework arrangements from a federal, state and local tax perspective, among other topics. Register here.
Because the matters covered herein are complicated, State and Local Tax Weekly should not be regarded as offering a complete explanation and should not be used for making decisions. Any decision concerning matters covered herein should be reviewed with a qualified tax advisor.
1 Pledger v. Bosnick, 306 Ark. 45 (Ark. S.Ct. 1991).
2 The OTC declined to determine if, as a matter of law, certain members of the taxpayer's unitary group had substantial nexus with Oregon because the record had not yet been developed fully enough to make a fact-dependent determination of the issue.
3 The special apportionment formula for broadcasters includes in the sales factor numerator all Oregon gross receipts plus all gross receipts from broadcasting multiplied by the ratio of Oregon subscribers over total subscribers.
4 Comcast Corp. v. Dept. of Rev., TC-MD 140214C, 2014 Ore. Tax LEXIS 216, 2014 WL 7150431 (Ore. Tax Ct., Mag. Div. Dec 10, 2014), rev'd on other grounds 22 OTR 295, 2016 Ore. Tax LEXIS 156, 2016 WL 5938297 (Ore. Tax Ct. Oct. 11, 2016).
5 Detroit Edison Co. v. Mich. Dept. of Treas., 498 Mich. 28 (2015).