March 1, 2021
State and Local Tax Weekly for February 19
Ernst & Young's State and Local Tax Weekly newsletter for February 19 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 emergency
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 to the COVID-19 emergency is available.
Nebraska Department of Revenue limits application of its dividends received deduction on Subpart F income
In Revenue Ruling 24-21-1 (issued Feb. 17, 2021), the Nebraska Department of Revenue (NE DOR) stated that Subpart F income is generally not a dividend or deemed dividend for purposes of the Nebraska dividends received deduction (DRD). The revenue ruling is advisory in nature but is binding on the NE DOR.
Since its enactment, the NE DOR has generally applied Neb. Rev. Stat. § 77-2716(5) to treat Subpart F income as a deemed dividend eligible for the state's DRD. The Tax Cuts and Jobs Act amended IRC § 965 to require taxpayers to include in income an amount (i.e., the IRC § 965(a) inclusion amount) based on the accumulated post-1986 deferred foreign income of certain foreign corporations that they own either directly or indirectly through other entities. The NE DOR subsequently issued General Information Letter (GIL) 24-18-1 in Dec. 2018 (revised by GIL 24-19-1 in Sept. 2019) to reassess this newly created category of income subject to the Subpart F income rules. In these GILs, the NE DOR took the position that income from an IRC § 965(a) inclusion is not a dividend or deemed dividend deductible under Neb. Rev. Stat. §77-2716(5). The NE DOR also provided instructions for reporting the IRC §965(a) inclusion amount along with apportionment factor treatment.
In informal communications with EY, the NE DOR said it has been studying various categories of Subpart F income in the course of hearing appeals from taxpayers contesting assessments based on the NE DOR's position in GIL 24-19-1. As a result of these studies, the NE DOR has issued Revenue Ruling 24-21-1.
In Revenue Ruling 24-21-1, the NE DOR states that Nebraska law (1) uses the same definitions for terms as federal income tax law, unless a different meaning is clearly required; and (2) does not define a "dividend or deemed dividend" for Nebraska income tax purposes. The NE DOR cites IRC § 316 and the opinion in Rodriguez v. C.I.R., 722 F.3d 306 (5th Cir. 2013) (Rodriguez) as authority to conclude that Subpart F income inclusions are not actual dividends because they do not involve any distribution or change in ownership. Citing Rodriguez, the NE DOR further stated that Congress is explicit when treating certain inclusions as dividends (i.e., a deemed dividend). The NE DOR found the "statutory silence," combined with specific instances in which Congress has treated other items as deemed dividends, supports its determination that Congress did not intend to generally afford Subpart F income deemed-dividend treatment. Accordingly, the NE DOR concluded that Subpart F income is generally not a dividend or deemed dividend for purposes of Neb. Rev. Stat. § 77-2716(5).
The NE DOR identifies some specific instances in which certain Subpart F income inclusions have been expressly treated as deemed dividends and, thus, eligible for Nebraska's DRD under Neb. Rev. Stat. § 77-2716(5):
Taxpayers must specifically identify Nebraska deductions for Foreign Personal Holding Company dividends on the Nebraska Schedule II, Form 1120N and attach Worksheet A, Schedule I, IRS Form 5471 as well as documents or worksheets that specifically identify the amount of Foreign Personal Holding Company dividends claimed. Any deduction for Subpart F income claimed as a dividend or deemed dividend other than those specifically designated in Revenue Ruling 24-21-1 will be disallowed.
Revenue Ruling 24-21-1 also provides guidance for apportionment factor treatment of Subpart F income included in Nebraska apportionable income. Neb. Rev. Stat. § 77-2734.14(3)(k), which provides a sourcing rule for sales other than sales of tangible personal property not specifically addressed elsewhere in the sourcing provisions, applies to Subpart F income. This rule requires receipts to be sourced in a manner that fairly represents the extent of the taxpayer's business activity in Nebraska. If this cannot be done for activity resulting in Subpart F income, then taxpayer must include Subpart F income in the sales factor denominator and exclude the income from the sales factor numerator.
For additional information on this development, see Tax Alert 2021-0404.
California: The California Franchise Tax Board (FTB) issued a summary of the conformity of the state's income tax laws to 2020 federal laws enacted prior to December 2020. These federal laws include (1) the Families First Coronavirus Response Act (P.L. 116-127); (2) the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-136) (CARES Act); (3) the Paycheck Protection Program and Health Care Enforcement Act (P.L. 116-139); and (4) the Paycheck Protection Program Flexibility Act of 2020 (P.L. 116-142). For instance, California does not conform to the CARES Act's modifications of the IRC net operating loss provisions, the limitation on business interest expense under IRC § 163(j), the limitation on excess losses for non-corporate taxpayers under IRC § 461(l) and the technical amendments to the qualified improvement property rules, among other federal tax law provisions modified by the 2020 federal tax law amendments. The FTB noted that its analysis of the state tax law's conformity to provisions of the Consolidated Appropriations Act of 2021 (P.L. 116-260) will be issued in April 2021. Cal. FTB, "Summary of Federal Income Tax Changes" (Jan. 14, 2021).
Idaho: New law (HB 58) updates the state's date of conformity to the Internal Revenue Code (IRC) to Jan. 1, 2021 (from Jan. 1, 2020). IRC § 461(l), however, applies as of Jan. 1, 2020; thus, the state decouples from the limitation on excess losses for non-corporate taxpayers enacted under the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-136). These changes are effective as of Jan. 1, 2021. Idaho Laws 2021, HB 58, signed by the governor Feb. 18, 2021.
Maryland: New law (SB 496) clarifies provisions related to the taxation of a pass-through entity (PTE). Under the revised statutory provision, a PTE (1) must pay tax with respect to the distributive or pro rata shares of its nonresident and nonresident entity members, or (2) it may elect to pay tax with respect to the distributive or pro rata shares of all of its members (not just resident members as had been provided under Md. Law 2020, ch. 641). If the PTE elects to pay tax on behalf of all members, the tax will be treated as a PTE-level tax. The new law clarifies that tax paid by a PTE for nonresident members under clause (1) above (i.e., no election made), does not apply to a publicly traded PTE that has agreed to file an annual information return with the Comptroller or to the distributive or pro rata share of a member that is itself a PTE formed under the laws of the State or qualified by or registered with the Department of Assessments and Taxation to do business in the State (such PTE member will itself comply with this provision), an exempt entity under IRC §501, or a real estate investment trust. A member of a PTE can claim a credit against its Maryland income tax liability equal to the tax paid by the PTE attributable to the member's share of the PTE; members are also required to add back the amount of this credit to federal adjusted gross income in computing Maryland adjusted gross income. These changes apply to a tax year beginning after Dec. 31, 2019. Md. Laws 2021, ch. 39 (SB 496), signed by the governor Feb. 15, 2021.
Nebraska: The Nebraska Department of Revenue (NE DOR) updated its Business Income Tax FAQs to provide guidance on the taxability of certain loans and grants. Nebraska follows the federal income tax treatment of Paycheck Protection Program (PPP) loan forgiveness; as such, forgiven PPP loans are not included in Nebraska taxable income. Businesses also may deduct expenses paid with proceeds from forgiven PPP loans. The NE DOR further explained that grants received under Nebraska's stabilization programs are included in gross income under the federal tax code, and since Nebraska follows the federal tax code, such grants are subject to Nebraska income tax. Neb. Dept. of Rev., Business Income Tax FAQs webpage (Feb. 17, 2021).
North Carolina: The North Carolina Department of Revenue issued guidance explaining that forgiven Paycheck Protection Program (PPP) loans are not taxable for state income tax purposes to the extent the amount of the loan forgiveness is excluded from federal taxable income. However, expenses paid with PPP loan proceeds that are otherwise deductible for federal income tax purposes, are not deductible for state income tax purposes. N.C. Dept. of Rev., "Paycheck Protection Program" (Feb. 18, 2021).
Pennsylvania: New law (SB 109) makes clear that forgiveness of federal Paycheck Protection Program (PPP) loans is excluded from income for personal income tax purposes. (Pennsylvania law already excluded PPP loan forgiveness from income for corporate net income tax purposes.) The law also provides that "no deduction may be disallowed for an expense that is otherwise deductible if the payment of the expense results in forgiveness of a [PPP] loan." Pa. Laws 2021, Act 1 (SB 109), signed by the governor on Feb. 5, 2021; see also Pa. Dept. of Rev., Coronavirus Aid, Relief, & Economic Security (CARES) Act: Pennsylvania Taxability (Feb. 2021).
Vermont: The U.S. Supreme Court has been asked to review the Vermont Supreme Court ruling that capital gain recognized from the sale of two Federal Communications Commission telecommunications licenses by a telecommunications company is nonbusiness income derived from an intangible asset and, as such, the gain is allocated to, and subject to corporate income tax in, Vermont, the company's commercial domicile. Specifically, the question presented is: "Whether the Vermont Supreme Court erred in holding that a federal license, that can be used only in one state, lacks a situs in that state under Whitney's interpretation of the federal due process principles governing state taxation." Vt. Natl. Telephone Co. v. Vt. Dept. of Taxes, 2020 VT 83 (Vt. S.Ct. Oct. 9, 2020), petition for cert. filed, Dkt. No. 20-1159 (U.S. S.Ct. filed Feb. 18, 2021).
SALES & USE
Hawaii: The Hawaii Department of Taxation (HI DOT) issued guidance on the imposition of the state's general excise tax (GET) on the film industry. The HI DOT explained that in April 2019, it revoked its Tax Information Release (TIR) 2009-05, which, through issuance of a proposed administrative rule, set forth its positions that (1) a motion picture or television film production company (production company) is considered to be in the business of manufacturing for GET purposes (and thus, as a manufacturing business, is subject to GET at a rate of 1.5%), and (2) loan-out entities providing services to production companies are deemed to be engaged in a service business. These two positions, when taken together, allowed loan-out entities to be subject to the lower 1.5% GET rate (instead of the higher 4% GET retail rate). The HI DOT said that it never began the formal rulemaking procedures described in TIR 2009-05 and thus, the proposed rules never were adopted or became law. Upon review of these positions, the HI DOT determined that they were "inappropriate", which led to the revocation of TIR 2009-05. Consequently, a production company is not engaged in the business of manufacturing, and loan-out entities providing services to a production company are not eligible for the reduced 1.5% GET rate. Haw. Dept. of Taxn., Information Release No. 2021-01 (Feb. 16, 2021).
Illinois: The Illinois Department of Revenue (IL DOR) issued a compliance alert, explaining that remote retailers and marketplace facilitators are required to collect and remit IL DOR administered state and local retailers' occupation taxes (ROT). Remote retailers and marketplace facilitators for sales made on behalf of marketplace sellers located in Chicago, are liable for Chicago's Home Rule Municipal Soft Drink ROT. Further, remote retailers and marketplace sellers, if applicable, are liable for other IL DOR administered taxes such as the Prepaid Wireless E911 Surcharge, the Illinois Telecommunications Access Corporation Assessment and the Tire User Fee. Marketplace facilitators are not required to collect and remit these taxes for sales made by marketplace sellers but are required to collect and remit these taxes for its own sales of tangible personal property. The IL DOR's compliance alert clarifies marketplace facilitators', marketplace sellers', and remote retailers' registration, tax collection and remittance obligations. Ill. Dept. of Rev., Compliance Alert - Tax Collection Obligations of Remote Retailers, Marketplace Sellers, and Marketplace Facilitators for Chicago Home Rule Municipal Soft Drink Retailers' Occupation Tax, Prepaid Wireless E911 Surcharge, Illinois Telecommunications Access Corporation Assessment, and Tire User Fee (Feb. 2021).
Louisiana: The Louisiana Supreme Court in Jazz Casino Co. granted a writ of certiorari in part and reversed the lower court's grant of summary judgment in favor of the Louisiana Department of Revenue (LA DOR) as it related to room taxes on third party hotel rooms which the taxpayers, related companies that operate casinos, neither own nor operate. Thus, the taxpayers only owe room taxes collected by the LA DOR2 on all discounted and complimentary hotel rooms they provide to patrons at their hotel based on the average seasonal rates from the preceding year of hotels in the New Orleans Central Business District and the French Quarter. The taxpayers, however, will not be required to collect such taxes on complimentary hotel rooms they provide to patrons at third-party hotels. Jazz Casino Co., LLC v. Bridges, No. 2020-C-01145 (La. S.Ct. Feb. 9, 2021) (consolidated).
Massachusetts: The Massachusetts Department of Revenue (MA DOR) issued working draft guidance on 2020 legislative changes requiring certain vendors and operators to remit advance payments of sales and use tax, local sales tax on meals and room occupancy excise. Effective April 1, 2021, certain vendors, marketplace facilitators and operators (including intermediaries) must remit by the 25th day of each month these taxes collected on or before the 21st day of the filing period. Tax collected equals the gross receipts from taxable sales (for sales and use tax purposes) or taxable rents (for room occupancy excise purposes) from the 1st day of the filing period through and including the 21st day of the filing period multiplied by the applicable tax rate. Tax due for the remaining filing period must be remitted when the return for the applicable tax period is required to be filed. The advance payment requirement does not apply to vendors or operators whose cumulative Massachusetts sales and use tax, or room occupancy excise, liability in the prior calendar year was $150,000 or less or to a materialman3 who files a return under Mass. G.L. c. 62C, §16(h).4 Affected vendors and operators that fail to comply with the advance payment requirements will be subject to a 5% penalty on the amount of the underpayment, unless the underpayment is due to reasonable cause. The penalty will not be imposed if the amount remitted equals at least 70% of the total tax or excise due for the month. The working draft guidance includes examples. Mass. Dept. of Rev., Working Draft - Technical Information Release: Tax Provisions in the Fiscal Year 2021 Budget (Feb. 12, 2021).
Maryland: New law (SB 496) permits eligible vendors to retain an increased vendor tax credit for three consecutive months. The credit is equal to the lesser of the amount of sales tax collected during each month the vendor qualifies or $3,000, up to a maximum benefit of $9,000 for the three-month period. To be eligible for the increased credit: (1) the vendor must timely file a sales and use tax return (or consolidated return), (2) the gross amount of sales and use tax remitted with the return may not exceed $6,000, and (3) the vendor must forgo the standard vendor credit. For monthly filers the increased credit will be claimed on the March, April and May 2021 returns; quarterly filers will claim the March credit on the return filed in April and the April and May credits will be claimed on the return filed in July. Md. Laws 2021, ch. 39 (SB 496), signed by the governor Feb. 15, 2021; Md. Comp. of Treas., RELIEF Act Sales and Use Tax Credit FAQs (Feb. 2021).
Arizona: In reversing the appeals court, the Arizona Supreme Court (ASC) held the City of Peoria (City) violated the Arizona Constitution's Gift Clause by spending public funds to induce a private university to open a branch in the City because the City's payments to the university and a private property owner under an economic development agreement far exceeded the value of that obligation. In determining whether the City violated the Gift Clause, the ASC applied the two-pronged Wistuber5 test — (1) does the agreement serve a public purpose, and (2) whether the value to be received by the public is far exceeded by the consideration being paid by the public. The ASC found that the agreement met the first prong of the test as it would serve a public purpose by diversifying the City's economic base and work force and it would revitalize an underused area of the City. The agreement, however, fails the second prong of the test when the university did not guarantee an economic return for its work and the City's payments to the university were not triggered by performance of the obligation. The ASC explained that the agreement's economic impact was an "anticipated indirect benefit" without an enforceable promise, which is "valueless under Wistuber's second prong … [Rather] the adequacy of consideration … focuses on the value of 'what the private party has promised to provide in return for the public entity's payment.'"6 The ASC also found the following were irrelevant indirect benefits: (1) a business's obligation to pay taxes; (2) the university's obligation to spend at least $2.5 million to open its City campus; (3) the private property owner's obligation to make tenant improvements to its own building; and (4) the university's agreement to not open a campus in other Arizona cities for at least seven years. Lastly, rather than deferring to decisions of elected officials in applying Wistuber's second prong, the ASC said courts should identify fair market value of the benefit provided to the entity and then determine proportionality. Schires v. Carlat, No. CV-20-0027-PR (Ariz. S.Ct. Feb. 8, 2021).
Wyoming: New law (SF 60) repeals the payment schedule for ad valorem taxes on mineral production created by 2020 Wyoming Session Laws, ch. 142, and provides that a mining company's estimated monthly ad valorem tax payment on its mineral production shall first be due beginning with production on Jan. 1, 2022. The new law also sets forth a payment schedule for mineral ad valorem tax due on 2020 and 2021 mineral production. Wyo. Laws 2021, ch. 28 (SF 60), signed by the governor on Feb. 9, 2021.
COMPLIANCE & REPORTING
New York City: The New York City (NYC) Department of Finance updated two memoranda on how NYC treats IRC § 965 repatriation amounts, foreign-derived intangible income (FDII), and global intangible low-taxed income (GILTI). Finance Memorandum 18-9 covers the impact of changes under the Tax Cuts and Jobs Act (P.L. 115-97) and the 2018-19 New York state budget on Business Corporation Tax taxpayers. In regard to IRC § 965, unlike federal law, NYC taxpayers (including combined groups) cannot defer payment of any part of their NYC tax associated with mandatory deemed repatriation income. The guidance addresses how to treat the IRC § 965(a) inclusion amount and notes that other guidance to determine the amount of interest deductions directly or indirectly attributable to the IRC § 965(a) inclusion amount are set out in Finance Memoranda 16-2 (Feb. 26, 2016) and 18-11 (Revised Jan. 27, 2021). Additionally, the guidance states that NYC decouples from the federal FDII deduction for tax years beginning on or after Jan. 1, 2017. Further, net GILTI income is included in entire net income (ENI) under Subchapter 3-A (Corporate Tax of 2015), while IRC § 78 dividends attributable to GILTI are not. The new guidance also (1) explains how to compute separate taxable income of combined group members and what to do when the a foreign corporation's stock that generates GILTI is business or investment capital; and (2) states that the net GILTI amount is disregarded for purposes of the "principally engaged" test that determines a taxpayer's or combined group's eligibility for preferential rates and amounts available to manufacturers. Lastly, Finance Memorandum 18-10 provides instructions for reporting repatriation income, GILTI and FDII for purposes of the General Corporation Tax, the Unincorporated Business Tax and the Banking Corporation Tax. N.Y.C. Dept. of Fin., Fin. Memo. 18-9 (Rev. Feb. 11, 2021); N.Y.C. Dept. of Fin., Fin. Memo. 18-10 (Rev. Feb. 2, 2021).
PAYROLL & EMPLOYMENT TAX
California: Due to the Dec. 31, 2020 expiration of the provision calling for mandatory paid leave for COVID-19 under the federal Families First Coronavirus Response Act (FFCRA), the requirement that California employers with 500 or more employees provide COVID-19 supplemental paid sick leave (SPSL) also lapsed. Despite the federal and state sunset of the federal and California SPSL, some California cities and counties extended the SPSL requirement into 2021. For more on this development, see Tax Alert 2021-0351.
Maryland: New law (SB 496) codifies and extends Maryland Governor Larry Hogan's Executive Order 20-12-10-01 requiring that the 2021 state unemployment insurance (SUI) tax rates not be based on individual employer experience for fiscal year (FY) 2020. Although employer individual SUI tax rates will not take into account COVID-19 unemployment insurance (UI) benefits, the overall historic impact on the state's UI trust fund has caused a significant increase in 2021 employer SUI tax rates. Maryland 2021 SUI tax rates range from 2.2% to 13.5% on Table F (the highest rate schedule), up from 0.3% to 7.5% on Table A (the lowest rate schedule). Table A had been effective for five consecutive years prior to 2021. The SUI taxable wage base remains at $8,500 for 2021. The new employer rate for 2021 continues at 2.6%, except for a new foreign contractor account, where the rate is 7.0% for 2021, up from 4.5%. Md. Laws 2021, ch. 39 (SB 496), signed by the governor Feb. 15, 2021. For additional information on this development, see Tax Alert 2021-0427.
New Jersey: New law (AB 4853) reduces the effect of regular state COVID-19 unemployment insurance (UI) benefits on New Jersey employer state unemployment insurance (SUI) tax rates starting in fiscal year (FY) 2022 through FY 2024. (New Jersey's fiscal year for SUI tax rating purposes is from July 1 through June 30 of the next succeeding calendar year.) New Jersey Governor Phil Murphy stated in his press release that COVID-19 UI benefits will have a direct effect on employers' SUI tax rates until FY 2022. For more on this development, see Tax Alert 2021-0395.
Oregon: In Temporary Administrative Order Rev-3-2021 (released Jan. 27, 2021), the Oregon Department of Revenue adopted Temporary Or. Admin. Regulation 150-317-1060 (Temporary Regulation), which provides guidance on the definition and sourcing of insurance premium receipts and the applicability of the Corporate Activity Tax (CAT) to insurers. The Temporary Regulation, effective Feb. 1, 2021 through July 30, 2021, explicitly states that the CAT applies to insurers, including insurers that have already paid excise and retaliatory taxes in-state. For additional information on this development, see Tax Alert 2021-0394.
Pennsylvania: The Pennsylvania Department of Revenue clarified that taxable persons or entities under the Pennsylvania Telecommunications Gross Receipts Tax (GRT) include the following entities or persons engaged in providing telephone, telegraph or telecommunications services in Pennsylvania: (1) telephone companies; (2) telegraph companies; (3) providers of mobile telecommunications services; (4) limited partnerships; (5) associations; (6) joint-stock associations; (7) co-partnerships; or (8) persons. Taxpayers are identified by the function they perform and do not need to be a public utility or other regulated entity to be subject to the GRT. The GRT is imposed on receipts from telecommunications business. Taxable receipts include those from directory assistance, voice over internet protocol, paging services, private lines, private networks and enhanced telecommunications receipts including voicemail, call forwarding, call waiting and custom ringtones. Further, "telephone messages transmitted" includes any item of equipment or service that renders the transmission of telephone messages more effective or makes telephone communication more satisfactory. Additional guidance on receipts subject to GRT is available in Corporation Tax Bulletin 2018-04 Telecommunications Gross Receipts Tax — Taxable Receipts. Pa. Dept. of Rev., Corp. Tax Bull. 2021-01: Telecommunications Gross Receipts Tax — Taxable Entities (Feb. 4, 2021).
VALUE ADDED TAX
International — Thailand: Measures for the taxation of foreign e-business in Thailand were first proposed in 2017, and new value-added tax (VAT) rules have now been enacted and were published in the Royal Gazette on Feb. 10, 2021. The new rules are effective from Sept. 1, 2021. Their main objective is to enable the collection of VAT on electronic services rendered by e-business operators in foreign countries to non-VAT operators in Thailand. The regulations applicable to Thai e-business operators remain unchanged. For additional information on this development, see Tax Alert 2021-0354.
Wednesday, March 3, 2021. State and local tax developments in the real estate industry (1 P.M. EST). COVID-19 pandemic-related tax measures, remote workforce issues, state workarounds of the $10,000 federal limitation on state and local tax deductions and other state and local tax updates affecting the real estate industry will be discussed. Register.
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 People of the State of New York ex rel. Whitney v. Graves, 299 U.S. 366 (1937).
2 The state-collected room taxes at issue included the state sales tax, the Louisiana Stadium and Exhibition District tax and the New Orleans Exhibit Hall Authority tax.
3 Mass. G.L. c. 62C, §1 (defining "materialman" as " … a person primarily engaged in the retail sale of building material, tools and equipment to building contractors for the improvement of real property and authorized by law to file a mechanics lien upon real property for improvements related to the property. For the purposes of this definition, ''primarily engaged'' shall mean sales of 50% or more of total sales to building contractors.
4 Id. §16(h) (" … A materialman shall file a return with the commissioner [of MA DOR] each month. Each return shall be filed within 50 days after the expiration of the period covered by the return. The [MA DOR] may require each materialman electing to remit sales and use tax under this section to file an application with the [MA DOR] stating his intention to remit sales and use tax pursuant to this section."
5 Wistuber v. Paradise Valley Unified Sch. Dist., 141 Ariz. 346 (1984).
6 Citing Turken v. Gordon, 223 Ariz. 342, 350 (2010).