July 12, 2021
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.
Connecticut budget bill includes business tax changes
The recently enacted budget bill (SB 1202) makes the following tax changes:
These changes have various effective dates. Conn. Laws 2021, Pub. Act 21-2 (SB 1202), signed by the governor on June 23, 2021.
Missouri enacts marketplace facilitator and remote seller nexus rules
On June 30, 2021, Missouri Governor Mike Parson signed SB 153, which establishes marketplace facilitator and remote seller nexus rules for Missouri sales and use tax purposes effective Jan. 1, 2023. Once in effect, vendors subject to the new nexus rules will be required to collect and remit the taxes covered by this bill separately from any tax they were previously required to collect and remit prior to Jan. 1, 2023.
A significant change under SB 153 is the modification of the definition of "engages in business activities within this state" to include vendors with cumulative gross receipts exceeding $100,000 from taxable sales in the previous 12-month period of tangible personal property for the purpose of storage, use or consumption in Missouri. The vendor will calculate gross receipts from taxable sales at the end of each calendar quarter for the preceding 12-month period ending on the last day of the preceding calendar quarter. If the economic threshold is met, the vendor will be required to collect and remit tax for at least 12 months, beginning within three months after the quarter's close. The vendor will continue to collect and remit the tax for as long as it engages in business activities in, or maintains a substantial nexus with, Missouri.
SB 153 expands the definition of "seller" subject to the seller's gross receipts tax to include marketplace facilitators that meet the economic nexus threshold. Marketplace facilitators will be required to separately state on the invoice the use tax collected and remitted on behalf of the marketplace seller. Specifically excluded from the definition of marketplace facilitators are those who: (1) provide internet advertising services or product listings without collecting payment from the purchase, (2) travel agency service providers, and (3) third-party financial institutions appointed by a merchant or a marketplace facilitator to handle various forms of payment transactions.
SB 153 expands the timely discount on sales tax returns to include timely filed use tax returns by remote retailers and marketplace facilitators.
Additional provisions were included in SB 153 that affect the Missouri income tax, prohibit new franchise fees on video service providers and authorize the Missouri Department of Revenue to consult and work with the Streamlined Sales and Use Tax Agreement Governing Board.
Multistate: Recently issued Tax Alert 2021-1310 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 2021. Highlights include: (1) a summary of legislative developments in Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Vermont and West Virginia; (2) a summary of judicial developments in Indiana, Nebraska, New York City and Vermont; (3) a summary of administrative developments in the District of Columbia, Georgia, Hawaii, Indiana, Maryland, Michigan, New Jersey, Oregon and South Carolina; and (4) a discussion of state and local tax items to watch in for federal income tax purposes and in California, Louisiana, Minnesota, Oregon and Texas.
District of Columbia: Enacted temporary law (B12-140) 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 will be effective retroactively to tax years beginning after Dec. 31, 2017. The law also excludes the following from the computation of District gross income, the amount of: (1) small business loans awarded and subsequently forgiven under 15 U.S.C. §9005; (2) public health emergency small business grants awarded under section 2316 of the District's Small and Certified Business Enterprise Development and Assistance Act of 2005; and (3) public health emergency grants under D.C. Code § 1-309.13(m)(1). B12-140 became law June 24, 2021; as a temporary bill, it expires Feb. 4, 2022.1
Florida: New law (HB 7059) updates Florida's date of conformity to the IRC to Jan. 1, 2021 (from Jan. 1, 2020), with some exceptions. The bill decouples Florida's corporate income tax law from the increase authorized by the Coronavirus Aid, Relief, and Economic Security Act (P.L. 116-136) (CARES Act) in the ceiling for allowable business interest expense deductions from 30% to 50% of applicable taxable income under IRC §163(j); the CARES Act provisions changing the depreciable life of certain qualified improvement property (QIP); and the increase provided by the Consolidated Appropriations Act, 2021 (P.L. 116-260) in the amount of meal expenses that are deductible in 2021 or 2022, among other provisions. Fla. Laws 2021, HB 7059, signed by the governor June 29, 2021.
Iowa: New law (SF 619) modifies Iowa's income tax laws. Tax Alert 2021-1094 discusses the more significant income tax law changes contained in the legislation, including those affecting Iowa's conformity to federal bonus depreciation, the IRC § 163(j) limitations on business interest expense deductions and the exclusion from gross income of the proceeds from forgiven Paycheck Protection Program loans for fiscal-year taxpayers. The Alert also addressed the removal of contingent income tax "triggers" allowing previously enacted tax changes to become effective in 2023, including changes to the definition of net income for corporations, individual income tax rates and the narrowing of the individual income tax exclusion for capital gains, among other tax law changes. Iowa Laws 2021, SF 619, signed by the governor on June 16, 2021.
Iowa: The Iowa Department of Revenue adopted new rules (Iowa Admin. Code 701-40.85(422), 701-53.29(422) and 701-59.31(422)) to implement Iowa income tax adjustments related to the limitation on the business interest expense deduction under IRC §163(j). The deduction will be allowed in full for Iowa income tax purposes for tax years beginning on or after Jan. 1, 2020; however, adjustments may be required for tax years 2018 and 2019 due to the change in how Iowa conformed to the federal limitations in those years. The rules provide guidance on how taxpayers must calculate and report their business interest expense deduction in 2018–2020. The rules were filed on June 11, 2021 and are effective Aug. 4, 2021.
Hawaii: New law (HB 1041) updates Hawaii's date of conformity to the IRC to Dec. 31, 2020 (from March 27, 2020), applicable to tax years beginning after Dec. 31, 2020. Income from forgiven Paycheck Protection Program loans that were not covered by the CARES Act, Economic Injury Disaster Loan grants, and certain small business grants are excluded from income tax. Haw. Laws 2021, Act 89 (HB 1041), signed by the governor on June 25, 2021.
Indiana: In June 2021, the Indiana Department of Revenue (IN DOR) updated its COVID-19 FAQs, announcing that its temporary remote worker nexus relief issued in response to the COVID-19 pandemic will expire on June 30, 2021. Under the temporary relief, the IN DOR said it would not assert nexus (and the protections of P.L. 86-272 would not be deemed to have been exceeded) due to a temporary remote work assignment by an employee of a taxpayer within the state as a result of a federal, state or local governmental work from home declaration or pursuant to a physician's order. This relief ends upon the end of the applicable work from home declaration — in this case June 30, 2021. The relief for workers subject to a physician's order expires on the later of June 30, 2021 or the expiration of an existing physician's order in place before June 30, 2021. The IN DOR cautions that if the employee remains in Indiana after the temporary remote work requirement has ended, nexus may be established for that employer. Ind. Dept. of Rev., COVID-19 FAQs (June 2021).
Louisiana: New law (SB 36) modifies the NOL carry forward provisions under Louisiana's corporation income tax law, allowing Louisiana NOLs to be carried forward until the loss is fully recovered (formerly, the state adopted a 20-year carryforward provision). This applies for all claims for the deduction on any return filed on or after Jan. 1, 2022, for Louisiana NOLs relating to loss years on or after Jan. 1, 2001. La. Laws 2021, Act 459 (SB 36), signed by the governor on June 29, 2021.
Louisiana: New law (SB 11) provides a corporate and individual income tax exemption for any gratuitous grant, loan, rebate, tax credit, advance refund or other qualified disaster relief benefit provided directly or indirectly by the state or federal government as a COVID-19 relief benefit (as defined by La. R.S. 47:297.16).2 To be exempt, the benefit must be included in the taxpayer's federal adjusted gross income. La. Laws 2021, Act 54 (SB 11), signed by the governor on June 4, 2021.
Nebraska: On June 17, 2021, the District Court of Lancaster County, Nebraska (court) ruled that the Council on State Taxation (COST) could not challenge a General Information Letter (GIL) issued by the Nebraska Department of Revenue, which asserted that taxpayers may not claim a dividends received deduction under Neb. Rev. Stat. § 77-2716(5) for IRC § 965(a) inclusion income. The court reasoned that it did not have subject matter jurisdiction to hear COST's challenge because the GIL was a guidance document, not a regulation. It is unknown at this time whether COST will appeal the court's decision. Council on State Taxation v. Nebraska Dept. of Revenue, No CI 20-4124 (Neb. Dist. Ct. June 17, 2021). For additional information on this development, see Tax Alert 2021-1275.
New Hampshire: New law (HB 2) modifies the business enterprise tax (BET) and the business profits tax (BPT) and phases-out the individual income tax on interest and dividends. The BET and BPT rates and filing thresholds are revised as follows:
HB 2 also limits the amount of credit allowed against overpayment of BPT and BET as follows:
Starting in 2023, the state's current 5% individual income tax on interest and dividends income will be reduced 1% each year, with a full phase-out by 2027 (i.e., 4% in 2023, 3% in 2024, 2% in 2025, and 1% in 2026.) Reference to the state's interest and dividends tax will be deleted in 2027. N.H. Laws 2021, HB 2, signed by the governor on June 23, 2021.
New York: New law (A.8033/S.7230) provides exclusions from New York taxable income for both corporation franchise tax and personal income tax purposes for amounts received from grants under New York's COVID-19 pandemic small business recovery grant program to the extent includable in federal taxable income. The exclusions apply to tax years beginning on or after Jan. 1, 2021. N.Y. Laws 2021, ch. 157 (A. 8033/S. 7230), signed by the governor June 23, 2021.
SALES & USE
Colorado: New law (HB21-1312) (the Bill) makes several changes to the state's sales and use tax laws. Effective July 1, 2021, the Bill, among other changes, (1) codifies the definition of tangible personal property for sales and use tax purposes to include digital goods, and (2) specifies that the tax on sales and purchases of tangible personal property includes amounts charged for mainframe computer access, photocopying, and packing and crating. The Bill also disallows the state sales tax vendor fee for retailers with a substantial amount of taxable sales during the filing period. Colo. Laws 2021, HB 21-1312, signed by the governor on June 23, 2021. For additional information on this development, see Tax Alert 2021-1318.
Colorado: New law (SB 282) extends through Feb. 1, 2022, the small retailer exception to the sales and use tax destination sourcing rules through Feb. 1, 2022. Under the exception, small retailers (i.e., those with less than $100,000 in annual sales) can continue to source sales to the location of their businesses. Once the exception ends, such retailers will use the destination sourcing method to source their sales. Colo. Laws 2021, SB21-282, signed by the governor on June 30, 2021. For additional information on Colorado's new destination sourcing rules and the temporary exception, see the Colorado Department of Revenue's "Destination Sourcing" webpage.
Iowa: A company's sales of its digital learning plans that are only accessible through its online learning platform are subject to Iowa's sales and use tax because the learning plans constitute the sale of the platform and the platform is treated as taxable software as a service (SaaS) for Iowa sales and use tax purposes. In so finding, the Iowa Department of Revenue (IA DOR) reasoned that the platform is SaaS as it is (1) software residing on the company's servers and it is accessed by users through the internet, (2) users cannot install, permanently download, or transfer the software to their own computers or mobile devices, and (3) users are charged for accessing the software. The IA DOR further found that the learning plans are taxable even though some of the features of the various plans on their own may not be SaaS; noting that the content or material accessed via SaaS does not impact the taxability of the software itself. (One of the company's learning plans may qualify for the sales and use tax exemption for the sales price of SaaS furnished "to a commercial enterprise for use exclusively by the commercial enterprise" under Iowa Code §423.3(104)(a).) Lastly, the IA DOR determined that the company's revenue from its internet advertising from pay-per-click and insertion order models are not subject to sales and use tax because "digital" or "internet" advertising is not a taxable enumerated service. Matter of Study.com, LLC, Dkt. No. 2020-310-2-0649 (Iowa Dept. of Rev. April 20, 2021).
Louisiana: New law (SB 125), effective July 1, 2021, provides an exemption from local sales and use tax for the purchase of prescription drugs used exclusively by the patient during medical treatment when the drugs are administered exclusively to the patient by a physician, nurse or other health care professional by infusion in a physician's office where patients are not regularly kept as bed patients for 24 hours or more. The exemption applies only to prescription drugs used for the treatment of a specified disease or condition. La. Laws 2021, Act 286 (SB 125), signed by the governor on June 14, 2021.
Louisiana: New law (HB 678) establishes the Louisiana Work Opportunity Tax Credit under which a non-refundable income tax credit is provided to businesses that hire participants in certain work release programs. The amount of the credit shall not exceed $2,500 per eligible re-entrant (i.e., an inmate or former inmate who is eligible to participate in a work release program); the credit is available only once for each eligible re-entrant. The credit can be claimed against Louisiana income or franchise tax for the tax period in which the credit is earned. Unused credit can be carried forward for up to five years. The credit applies to the employment of eligible re-entrants with a release date occurring on or after Jan. 1, 2021, and it sunsets June 30, 2027. La. Laws 2021, Act 453 (HB 678), signed by the governor on June 23, 2021.
Louisiana: New law (HB 680) establishes the Louisiana Youth Jobs Tax Credit program, which provides a nonrefundable credit against the corporate income or franchise tax for businesses hiring eligible youth on or after July 1, 2021. The credit equals $1,250 per hire in a full-time position; reduced to $750 per hire in a part-time position. The business will earn the credit in the year in which the eligible youth completes the third consecutive month of work. Unused credit can be carried forward up to five years. The credit sunsets Dec. 31, 2025. The law also provides for an apprenticeship tax credit that can be claimed against the corporate income or franchise tax. The total amount of credit that can be claimed for each eligible apprentice employed for a minimum of 250 hours during the tax period is a maximum of $1,250 (the credit equals $1.25 per hour of employment). No credit will be granted for the employment of eligible apprentices before Jan. 1, 2022 or after Dec. 31, 2028. La. Laws 2021, Act 454 (HB 680), signed by the governor on June 23, 2021.
Maryland: New law (SB 186) extends the sunset date of the Maryland job creation tax credit to Jan. 1, 2027 (from Jan. 1, 2022), establishes an enhanced job creation tax credit for hiring qualified veterans3, and expands eligibility under the credit to include certain small businesses4 that hire qualified veterans. To be eligible for the credit, (1) a person must establish or expand a business facility in Maryland that during any 24-month period creates a specified number of positions (ranging from 10-60, depending on location), and be primarily engaged in an enumerated business; or (2) a small business must hire at least one qualified veteran employee for a full-time position in the state. The amount of the enhanced credit for a business that meets the existing qualifications for the jobs creation credit is $4,000 for each qualified veteran employee employed at a facility not located in a revitalization area; the amount of the credit is increased to $6,000 for each qualified veteran employed at a facility located in a revitalization area. The amount of credit earned by a small business that hires a qualified veteran employee is $2,500 per such employee employed by the small business during the credit year. A small business may not claim the credit for more than five qualified veteran employees in a credit year, for a qualified veteran employee who is hired to replace a laid-off employee or an employee who is on strike, or for a qualified veteran employee who has filled the position for less than one year. These provisions take effect July 1, 2021 and apply to job creation tax credits certified after Dec. 31, 2021. Lastly, effective for tax years beginning after Dec. 31, 2020, the law repeals the Hire Our Veterans tax credit. Md. Laws 2021, ch. 191 (SB 186), signed by the governor on May 18, 2021.
COMPLIANCE & REPORTING
Wisconsin: New law (AB 18) changes the individual income tax deadline for filing the return and paying tax due from on or before April 15 (or the 15th day of the fourth month following the close of the taxpayer's fiscal year) to on or before "the date required to file the corresponding federal income tax return, not including any extension, to the Internal Revenue Service." Wis. Laws 2021, Act 40 (AB 18), signed by the governor on May 21, 2021.
New Hampshire: On June 28, 2021, the US Supreme Court denied motions to file bills of complaint in a case brought by New Hampshire in October 2020 challenging temporary income tax rules imposed by Massachusetts on the wages of non-resident teleworkers (including those residing in New Hampshire) during the COVID-19 emergency. Justices Clarence Thomas and Samuel Alito would have granted the motions. For more on this development, see Tax Alert 2021-1316.
PAYROLL & EMPLOYMENT TAX
Arkansas: Recently enacted legislation (HB 1212/Act 153) allows the Arkansas Department of Workforce Services to relieve employer state unemployment insurance (SUI) accounts of regular COVID-19 UI benefits. The provision is retroactive to the week ending April 4, 2020, because Governor Asa Hutchinson declared, and continued to declare, a disaster emergency due to COVID-19. The latest disaster declaration (EO 21-07) expired on March 31, 2021. Other 2021 legislation (HB 1409/Act 368) will hold the SUI taxable wage base for calendar year 2022 to not greater than $10,000, the same as it was in 2021. For additional information on this development, see Tax Alert 2021-1305.
Massachusetts: The Massachusetts Department of Revenue (DOR) announced that the temporary income tax rules for teleworkers that were put in place to minimize disruption for employers and employees during the COVID-19 state of emergency will end as of Sept. 13, 2021. For additional information on this development, see Tax Alert 2021-1273.
North Dakota: Governor Doug Burgum recently issued Executive Order 2021-09, which rescinds the state of emergency and the provisions of Executive Order 2020-08.3 that continued the non-charge of COVID-19 unemployment insurance (UI) benefits into 2021. As a result of Executive Order 2021-09, and as confirmed by the Job Service North Dakota, employers are charged with COVID-19 UI benefits starting May 1, 2021. For additional information on this development, see Tax Alert 2021-1241.
Texas: The Texas Workforce Commission announced that the impact of regular COVID-19 state unemployment insurance (UI) benefits on the state's UI trust fund balance will have less of an impact on employer 2021 SUI tax rates than would have otherwise been the case because it has modified the rate computation. For additional information on this development, see Tax Alert 2021-1304.
Vermont: Recently enacted legislation (SB 62/Act 51) will lessen the effect COVID-19 UI benefits will have on future employer state unemployment insurance (SUI) tax rates by extending the provision of not charging regular COVID-19 unemployment insurance benefits in computing employers' accounts and by disregarding these benefits in computing the SUI rate schedules that will apply. For additional information on this development, see Tax Alert 2021-1290.
Washington: Governor Jay Inslee signed into law SB 5097, which, effective July 25, 2021, expands coverage under the state's paid family and medical insurance program by changing the definition of a covered family member. Under prior law, a covered family member included a child, grandchild, grandparent, parent, sibling or spouse of an employee. SB 5097 adds to the definition of a covered family member an individual who regularly resides in the employee's home or where the relationship creates an expectation that the employee care for the person, and that individual depends on the employee for care. The law clarifies that an individual is not covered merely because they reside in the employee's home, but rather, the individual regularly resides in the employee's home and there is an expectation that the employee care for the individual. For additional information on this development, see Tax Alert 2021-1180.
New Hampshire: New law (HB 2) reduces the rate of the meals and rooms (rental) tax to 8.5% (from 9%), effective Oct. 1, 2021. N.H. Laws 2021, HB 2, signed by the governor on June 23, 2021.
International: The latest edition of Trade Watch is available through Tax Alert 2021-1291. Trade Watch is a regular communication from EY Global Trade that outlines key legislative and administrative developments for customs and trade around the world.
VALUE ADDED TAX
International — France: Effective July 1, 2021, new rules in France will require businesses established outside the European Union (EU) to electronically file claims for refunds of value-added tax (VAT) incurred in France. Currently, non-EU VAT refund claims are filed by post. These changes apply to refunds made under the Provisions of the EU Thirteenth VAT Directive. For additional information on this development, see Tax Alert 2021-1238.
International — Mexico: Effective July 8, 2021, Mexico will repeal rule 5.2.5 of the General Rules of Foreign Trade, which exempts certain qualified purchases of temporarily imported goods from nonresidents (i.e., goods passing through Mexico to another country) from value-added tax (VAT) withholding. This repeal will affect maquiladora or IMMEX structures that result in the sale by a nonresident of goods temporarily imported into Mexico under a program granted in accordance with the Decree for the Promotion of the Manufacturing, Maquiladora and Export Services Industry (IMMEX Program). Taxpayers with these structures should analyze their operations and implement any changes needed to comply with the VAT requirements.For additional information on this development, see Tax Alert 2021-1250.
Thursday, July 15. The new elective state pass-through entity taxes: A survey of the latest developments (1:00 p.m. EDT). During this webcast, EY panelists will: (1) provide an overview of various enacted or proposed state pass-through entity (PTE)-level taxes; (2) discuss the US federal income tax considerations of a state PTE tax election; (3) compare the many different state PTE level taxes, focusing on the states that have created an entirely new tax and those that have allowed affected owners to elect to treat PTEs as C corporations for state tax purposes; (4) discuss the ways these new state PTE tax laws mitigate the imposition of the two levels of tax through credits or income exclusions; (5) address the problems multistate PTE owners may face with the "other state tax credits" or "resident tax credits" in their home states for PTE taxes paid to nonresident states; (6) consider how PTE taxes affect corporate PTE owners; and (7) examine selected industry issues and considerations of these state PTE taxes, notably the financial services and real estate sectors, which frequently operate in PTE form. Register.
Tuesday, July 20, 2021. US corporate income tax compliance: Tax year 2020 filing update and multi-year readiness (3:30 p.m. EDT). The corporate tax landscape is more dynamic than ever heading into the tax year 2020 corporate filing season. Please join EY panelists for a webcast where they will provide their insights on preparing for 2020 US federal and state filings and multi-year considerations in this age of "continuous" compliance. The panel discussion will address such topics as key federal and state tax compliance developments arising from multiple state tax policies and regulations, including interdependencies among federal, state and international compliance and filings, among other topics. 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 These provisions are similar to those enacted under the District of Columbia temporary law A23-334, which expired May 21, 2021 and on an emergency basis under A24-30 (B24-139), which expired on June 15, 2021.
2 Under the Louisiana law, such benefits include those provided under the CARES Act, the Taxpayer Certainty and Disaster Relief Act, the COVID-Related Tax Relief Act, the Consolidated Appropriations Act, 2021, the State Coronavirus Relief Program, the Coronavirus Local Recovery Allocation Program, the Louisiana Main Street Recovery Program, the Critical Infrastructure Worker's Hazard Pay Rebate, and pursuant to any other existing or subsequent state or federal COVID-relief legislation.
3 Under the new Maryland law, a "qualified veteran employee" is defined as an individual who: (1) is honorably discharged or released under honorable circumstances from active military, naval or air services; and (2) is a qualified veteran as defined in IRC §51(D)(3)(A) for purposes of the federal Work Opportunity Tax Credit.
4 For purposes of the Maryland credit, a "small business" means an individual, partnership, a limited partnership, a limited liability partnership, a limited liability company, or a corporation that employs 50 or fewer total full-time employees.