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January 18, 2022

State and Local Tax Weekly for January 7

Ernst & Young's State and Local Tax Weekly newsletter for January 7 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.


Michigan enacts elective flow-through entity tax, Department of Treasury issues instructions for electing into the tax

On Dec. 20, 2021, Governor Whitmer signed into law HB 5376 (Mich. Pub. Act 21-135), allowing a flow-through entity (FTE)1 to elect to be taxed at the entity level (an "electing FTE").2 The FTE tax is intended to enable Michigan taxpayers who are FTE owners to deduct, for federal income tax purposes, state and local taxes exceeding the annual $10,000 federal income tax deduction limitation ($5,000 for married individuals filing separately) imposed by IRC Section 164(b)(6) (the SALT deduction limitation), consistent with IRS Notice 2020-75 (see Tax Alert 2020-2690).

Effective for tax years beginning on or after Jan. 1, 2021, an FTE can elect to file a return and pay the FTE tax. The election, once made, is irrevocable and will continue for the next two years. An electing FTE must file its election with the Michigan Department of Treasury (MI DOT) on or before the 15th day of the third month of the tax year; however, taxpayers (both calendar and fiscal year) making an election for a tax year beginning in 2021 must do so before April 15, 2022. Taxpayers will need to make a separate election after the expiration of the irrevocable period to continue to pay the FTE tax.

The FTE tax is imposed on the FTE's positive business income tax base, after allocation or apportionment to Michigan, at the same rate levied on a person other than a corporation under MCL Section 206.51. An FTE's negative income tax base, after allocation or apportionment to Michigan, is includible in the business income tax base of each member3 of the FTE. The negative income tax base cannot offset an FTE's allocated or apportioned business income tax base in any other tax year for which the FTE tax election is made. MI HB 5376 lists the adjustments that must be made in determining the business income tax base.

Critically, the electing FTE pays tax due only on the business income tax base allocable to members who are individuals, FTEs, estates or trusts and excludes from tax its business income tax base allocable to members that are corporations, insurance companies or financial institutions. See MCL Section 206.815(6).

MI HB 5376 sets forth the procedures and deadlines for filing returns and making payments, including the requirement for the FTE to file a return for and make quarterly estimated tax payments in the same manner as applicable to other Michigan taxpayers.

Taxpayers (i.e., individuals, estates and trusts) that are members of an electing FTE or a direct/indirect member of another electing FTE and whose income is included in the FTE's business income tax base may claim a credit against their Michigan income tax liability equal to the member's allocated share of the FTE tax reported to it by the FTE for the tax year ending on or within the taxpayer's same tax year.4 A credit, calculated differently, is also available for nonresident estates or trusts as well as beneficiaries of such entities.5 The credit is available to taxpayers that are subject to the corporate income tax (i.e., corporation, insurance companies and financial institutions) that are members of an electing FTE or a direct/indirect member of another electing FTE. The MI DOT explained6 that "[t]he credit remains necessary … because in certain tiered structures, an electing entity may not know the identity of its indirect members, yet is required to pay tax attributed to any direct member that is another [FTE]. In these cases, it is possible that the [FTE] tax is paid on income attributable to an indirect member that is a corporation, insurance company, or financial institution. To ensure that tax is not paid at both the entity and member levels, the corporation, insurance company, or financial institution may therefore claim the refundable credit on their respective Corporate Income Tax return." The MI DOT further noted that the FTE cannot elect to pay tax for the purposes of generating a credit for a direct member that is subject to the corporate income tax and, thus, must exclude from its business income tax base any income from such members. If the amount of credit exceeds the member's Michigan income tax liability for the tax year, the excess amount will be refunded.7

MI HB 5376 provides that the FTE tax is levied and imposed only for any tax year in which the federal SALT deduction limitation applies.8

Following the enactment of this elective FTE tax, the MI DOT issued instructions for making the FTE tax election.9 The MI DOT said that payments of the FTE tax must be submitted electronically through Michigan Treasury Online (MTO). A payment submitted through MTO will be deemed to be a valid election for the tax year specified on that payment. Payments submitted outside the MTO will not be accepted or regarded as a valid election into the FTE tax. In addition, other payments made by the FTE (e.g., composite return estimated payments) do not constitute an election to the FTE tax.

IRS lists substances subject to reinstated Superfund excise tax, offers procedural guidance and suspends Notice 89-61

In Notice 2021-66 (released Dec. 14, 2021), the IRS provided guidance on Superfund excise taxes, which are reinstated as of July 1, 2022, under the recently enacted federal Infrastructure Investment and Jobs Act (P.L. 117-58) (IIJA) (see Tax Alert 2021-2059).

Notice 2021-66 does the following:

  • Updates the list of taxable substances under IRC Section  4672(a), which had expired on Dec. 31, 1995
  • Suspends Notice 89-61, which specified the procedure for requesting the addition or removal of specific chemicals from the list of taxable substances
  • Instructs taxpayers how to furnish sufficient information to the Treasury Secretary to determine the rate of tax applicable to an imported taxable substance
  • Explains IRS Form 637 registration requirements to claim certain exemptions and procedural rules regarding tax forms and deposits

The Notice also requests comments from taxpayers by Jan. 28, 2022, on issues that require clarification or additional guidance

For additional information on this development, see Tax Alert 2022-0018.


Multistate: The most recent state income tax development alert provides a summary of the significant legislative, administrative and judicial actions that affected state and local income/franchise and other business taxes for the period from Oct. 1, 2021 through Dec. 22, 2021. These developments are compiled from the EY Indirect/State Tax Weekly and Indirect/State Tax Alerts. Highlights include: (1) a summary of legislative developments in Arkansas, Georgia, Illinois, Louisiana, Michigan and North Carolina; (2) a summary of judicial developments in California and Delaware; (3) a summary of administrative developments in Colorado, Connecticut, Louisiana, Minnesota, New Jersey, New York, South Carolina, Texas, Vermont and Wisconsin; and (4) a discussion of indirect and state and local tax items to watch from the US government, Alabama, Colorado and Texas. The newsletter is available via Tax Alert 2021-2315.

Illinois: The Illinois Department of Revenue (IL DOR) posted to its pass-through entity (PTE) tax information webpage a list of states that it has determined have a PTE-level tax substantially similar to Illinois' elective PTE tax. These states include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina and Wisconsin. The IL DOR stated that this list was current as of Dec. 29, 2021 and may be subject to change. Ill. Dept. of Rev., Pass-through Entity Information (Pub. 129) webpage (last accessed Jan. 7, 2022).

Massachusetts: New law (HB 4269), effective for tax years beginning on or after Jan. 1, 2021, excludes from an individual's Massachusetts taxable income amounts from Paycheck Protection Program (PPP) loans that have been forgiven, Economic Injury Disaster Loan (EIDL) advances, Shuttered Venue Operators grants, Restaurant Revitalization Fund grants, and Small Business Administration (SBA) loans. This individual income tax change aligns with the corporate income tax treatment. Mass. Laws 2021, ch. 102, sec. 77 (HB 4269), signed by the governor on Dec. 13, 2021.

New York: The New York Department of Taxation and Finance (NY DoTF) adjusted the deriving receipts from activity in New York State and in the Metropolitan Commuter Transportation District (MCTD) thresholds for purposes of imposing the Article 9-A franchise tax and the MTA surcharge. Under New York law, the Commissioner of the NY DoTF (Commissioner) is required to adjust these thresholds if the Consumer Price Index (CPI) changed by 10% or more since Jan. 1, 2015 or since the date the threshold was last adjusted by the Commissioner. The Commissioner has determined that the CPI has changed by 10% since Jan. 1, 2015. Thus, the new deriving receipts thresholds have been increased to $1,138,000 for tax years beginning on or after Jan. 1, 2022 and before Jan. 1, 2023. For tax years 2015 through 2021, the threshold was $1 million. Further, for tax years beginning on or after Jan. 1, 2022 and before Jan. 1, 2023, in determining whether the deriving receipts threshold is met for a unitary group, only receipts from corporations conducting a unitary business that meet ownership requirements in N.Y. Tax Law Section 201-C, with at least $11,000 in New York receipts (franchise tax) and at least $11,000 in MCTD receipts (MTA surcharge), are aggregated. For tax years 2015-2021 this threshold was $10,000. N.Y. Dept. of Taxn. and Fin., Technical Memorandum TSB-M-21(3)C (Dec. 28, 2021).

Pennsylvania: In its opinion in General Motors Corp. (GM), the Pennsylvania Supreme Court (PA S.Ct.) held that its ruling in Nextel,10 in which it found the $3 million net loss carryover (NLC) deduction cap for the 2007 tax year violated the Uniformity Clause of the Pennsylvania Constitution, applied retroactively to the $2 million NLC deduction cap for the 2001 tax year. However, unlike the remedy in Nextel — severing the $3 million cap due to the fallback option of the uniform 12.5% cap of taxable income — the PA S.Ct. determined that the proper remedy for the 2001 tax year, which did not have a similar fallback option, is to sever the NLC deduction provision in its entirety. The PA S.Ct. found that under the U.S. Supreme Court ruling in McKesson Corp.11 severance of the NLC deduction "does not remedy the discriminatory impact of the Uniformity Clause violation of GM." To remedy this violation, the PA S.Ct. remanded the case back to the Pennsylvania Finance and Review Board to issue GM a refund based on a recalculation of its corporate net income tax without capping its NLC deduction. General Motors Corp. v. Pennsylvania, No. 12 MAP 2020 (Pa. S.Ct. Dec. 22, 2021).

Virginia: In response to a ruling request from the commonwealth's CPA society, the Virginia Department of Taxation (VA DOT) said that Virginia's credit for taxes paid to another state is generally not available for taxpayers who are owners of a pass-through entity (PTE) (e.g., partnership, S corporation or an LLC treated as either for federal income tax purposes) that elects to be taxed at the entity level in Maryland, other than, in certain circumstances, shareholders of an S corporation. The VA DOT explained that Virginia law (Va. Admin. Code tit. 23, Section 10-110-221 C) "expressly provides that the credit [for taxes paid to another state] may not be claimed by an individual for tax imposed by another state on a distributing entity in which the individual is a beneficiary or shareholder, except when the distributing entity is an S-corporation." Thus, Virginia residents who are shareholders of an S corporation that elects to be taxed by Maryland at the entity level, would determine on a case-by-case basis whether the payment made by the S corporation would otherwise qualify for the credit for the individual shareholders. Va. Dept. of Taxn., "Ruling Request: Credit for Taxes Paid to Another State Virginia Society of CPAs" (Dec. 28, 2021).


Alabama: Helium and nitrogen gases a rocket manufacturer purchased to use in functional testing and leak testing of launch vehicles qualified as machines used in the manufacture of tangible personal property and, therefore, should have been taxed at the 1.5% reduced machine rate instead of the 4% general tax rate. In so holding, the Alabama Tax Tribunal (Tribunal) found that "the gases performed integral, distinct, and independent functions in the manufacturing process." The Tribunal noted that the functional testing determined whether valves operated property for purposes of supplying fuel to engines during flight, while connection joints in engines had to be checked for leaks to avoid mission failure. The Tribunal further explained that even though the gases did not directly convert raw materials into rockets, Alabama law does not require such. Rather, to qualify for the machine rate, the item has to be a machine used in the manufacture of tangible personal property. Accordingly, the rocket manufacturer and the company it purchased the helium and nitrogen gases from, are entitled to a refund of tax paid on helium and nitrogen gases used for functional testing and leak testing as well as for other uses not at issue in this case (i.e., dew-point testing and structural stabilization). United Launch Alliance, LLC v. Alabama Dept. of Rev., No. S. 18-1033-JP (Ala. Tax Trib. Dec. 21, 2021).

Florida: The Florida Department of Revenue (FL DOR) issued guidance on peer-to-peer car-sharing program (P2P car sharing program) registration and tax collection requirements that took effect Jan. 1, 2022. Under law enacted in 2021 (Fla. Laws ch. 2021-175), a P2P car sharing program is required to register for and collect and remit applicable sales tax, discretionary sales surtax and rental car surcharge on motor vehicles rented through the program. The P2P car sharing program is required to submit a registration application for each county in which the business is located. The FL DOR explained that a $1.00 per day (or part thereof) rental car surcharge applies to the first 30 days of the agreement involving a shared vehicle through a P2P car sharing program. The surcharge is $1.00 per use if the car sharing period is for less than 24 hours. The FL DOR said the rental car surcharge should be separately stated on the invoice and is subject to sales tax and the discretionary sales tax. Further, the rental car surcharge is imposed on vehicles designed to carry less than nine passengers. Fla. Dept. of Rev., Tax Information Publication No. 21A01-14 (Dec. 21, 2021).

Maryland: New law (HB 1209) repeals the termination date of the law imposing sales and use tax on peer-to-peer car sharing (P2P car sharing program). The law also expands the definition of "marketplace facilitator" to include certain P2P car sharing programs. The sales and use tax rate imposed on shared motor vehicles used for such programs is 8% of the taxable price; however, the rate is increased to 11.5% of the taxable price if the vehicle is a passenger car, a multipurpose passenger vehicle or a motorcycle that is part of a fleet of vehicles that includes more than 10 vehicles owned by the same person. Md. Laws 2021, ch. 9 — 2021 Spec. Sess. 1 (2021 MD HB 1209), enacted over the governor's veto on Dec. 6, 2021.

New York: Services a company that operates an online loan marketplace provides to lenders that pay a fee to use the marketplace are not taxable information services. In so holding, the New York Division of Tax Appeals (NY DTA), explained that "to be an information service, the taxpayer's primary function must be the business of furnishing information, including the services of collecting, compiling or analyzing information and furnishing reports thereof." Here, the NY DTA found that while the provision of information takes place (i.e., transmission of prospective borrower's financial information and loan requirements to a matched lender), the company's "primary function … is to facilitate the writing of loans by its customers, its network of lenders." The NY DTA found supportive of this conclusion the following: (1) the company did not get paid unless the loan closed; (2) the company's ongoing partnership with its network of lenders; (3) the importance the company placed on its lending partners actually closing loans; (4) only allowing lenders that pass its compliance and background checks and that have the capacity to write enough loans to participate in its online marketplace; and (5) the company's performance of diagnostics and account reviews to determine where in the process the lender could improve and offering guidance. Matter of LendingTree, Inc., DTA No. 829714 (N.Y. Div. of Tax App. Dec. 9, 2021).

New York: New law (SB 6715) imposes various fees on peer-to-peer car sharing programs (P2P car sharing program). A state-wide P2P assessment fee, a metropolitan commuter transportation district (MCTD) assessment fee and a regional transportation (RT) assessment fee are imposed on every P2P car sharing program. The fee equals 2% of the gross charges paid by the shared vehicle driver when the car sharing period begins anywhere in the state and terminates: (1) anywhere in the state (for the state-wide P2P assessment fee), (2) in the metropolitan commuter transportation district (for MCTD assessment fee), and (3) anywhere in the state outside of MCTD as established by N.Y. Pub. Authorities law Section 1262 (for the RT assessment fee). On Jan. 1, 2023, the amount of the state-wide P2P assessment fee, the MCTD assessment fee and the RT assessment fee are increased to 3% of the gross charges. To prevent evasion of the P2P fees, it is presumed that every P2P car sharing program that begins anywhere in New York is subject to the fees. The person liable for the fee can overcome the presumption by proving the contrary. The law sets forth procedures for filing returns and paying the P2P assessment fees as well as record retention requirements. The special tax on passenger car rentals and the special supplemental taxes on passenger car rentals within and outside of MCTD do not apply to P2P car sharing programs. The law takes effect on March 22, 2022 — the 90th day after becoming law. N.Y. Laws 2021, ch. 795 (2021 N.Y. SB 6715), signed by the governor on Dec. 22, 2021.


California: The California Film Commission (CA FC) has announced application deadlines for the next film and TV tax credit program - Program 3.0. For independent and non-independent feature films, the application period runs from Jan. 24 to 26, 2022, with phase II running from Jan. 27 to 31, 2022. The approval date for these applications is Feb. 28, 2022. For recurring and relocating television series, the application period runs from March 7 to 9, 2022, with phase II running from March 10 to 14, 2022. The approval date for these applications is April 11, 2022. The CA FC said that eligible relocating TV series will qualify if they meet the following definition: "A television series without regard to episode length or initial media exhibition, with a minimum production budget of [$1 million] per episode, that filmed at least 75% of principal photography days in its most recent season outside of California or has filmed all seasons outside of California and for which the taxpayer certifies that the credit is the primary reason for relocating to California." See also, CA FC, Production Alert: Upcoming Tax Credit Application Window Indie & Non-Indie Feature Films January 24-26, 2021 (Jan. 7, 2022).

Maryland: New law (HB 278) modifies the definitions of "qualified position" and "revitalization area", respectively, for purposes of the Maryland job creation tax credit program. For positions filled before Oct. 1, 2021, "qualified position" is defined as a position that: (1) is full-time and of indefinite duration, (2) pays at least 120% of the Maryland State minimum wage, (3) is located in Maryland, (4) is newly created as a result of the establishment or expansion of a facility in a single location in Maryland, and (5) is filled. For positions filled on or after Oct. 1, 2021, a "qualified position" is defined as a position that: (1) is full-time and of indefinite duration; (2) pays at least (a) the prevailing wage for an employee classification for which there is a prevailing wage rate or (b) 150% of the Maryland State minimum wage for any other employee classification; (3) is located in Maryland; (4) provides career advancement training; (5) allows collective bargaining for wages and benefits by employees; (6) provides paid leave; (7) considered a covered employment for purposes of unemployment insurance benefits; (8) entitles employees to workers' compensation benefits; (9) offers employer-provided health insurance benefits and retirement benefits; (10) is newly created as a result of the establishment or expansion of a facility in a single location in Maryland; and (11) is filled. The law amends the definition of "revitalization area" to include tier 1 counties. The amount of the credit is $3,000 for each qualified employee employed by the qualified business if the business facility is not located in a revitalization area; increased to $5,000 if the business facility is located in a revitalization area. The amount of credit earned by a qualified business entity may not exceed $1 million during the credit year. Md. Laws 2021, ch. 22 (2021 MD HB 278), enacted over the governor's veto on Dec. 6, 2021.


Michigan: New law (SB 698) for tax year 2022 (in addition to tax year 2021), requires that personal property (including exempt personal property) that on the tax-day has been moved to an alternative location due to the COVID-19 pandemic be assessed in its ordinary location rather than the alternative location. Mich. Pub. Act 21-164 (2021 MI SB 698), signed by the governor on Dec. 23, 2021.


Hawaii: The Hawaii Department of Taxation (HI DOT) provided guidance on Real Estate Investment Trusts (REITs) notification requirements, which apply to tax years beginning after Dec. 31, 2021. Legislation enacted in 2021 (Act 78) requires every REIT to (1) notify the HI DOT of its operations as a REIT in Hawaii, (2) complete its tax returns as prescribed by the HI DOT (including checking the box indicating their REIT status), and (3) include a copy of its federal income tax return with their state tax returns. Failure to comply with these requirements will result in a $50 per day penalty for each such failure. A REIT must notify the HI DOT of its operations within the state within 15 days of beginning operations in the state, however, REITs that were active in Hawaii on July 1, 2021 must notify the HI DOT of their activity in the state by Jan. 15, 2022. The guidance includes information on how to notify the HI DOT. Haw. Dept. of Taxn., Announcement No. 2021-09 (Dec. 23, 2021).


California: The California Franchise Tax Board (CA FTB) extended through June 30, 2022 (from Dec. 31, 2021) its temporary e-Signature options for taxpayers or their representatives to (1) submit signed paper return and other documents (except for Power of Attorneys (POAs)), and (2) submit signed statute of limitation waivers. Two acceptable alternative signature measures for paper returns are: (1) an attached document that must be included with the filed return that provides a copy of the original signature — the attached document should identify what the document signature is for (e.g., Corp XX, 2019 Form 100) and state "Refer to the attachment for a copy of the original signature" on the signature line; or (2) a paper return with a faxed signature on the signature page. For all other documents, except POAs, that normally require an original signature, documents with photographed or digital copies of required signatures will be accepted. CA FTB approved methods for submitting signed SOL waivers include: faxing or emailing a copy of the SOL waiver to the CA FTB with a handwritten signature; uploading a scanned copy of an SOL waiver with a handwritten signature to the taxpayer's MyFTB account or to the cloud with a link to the CA FTB allowing its staff the link to download the waiver; or using a third-party service. Cal. FTB, Public Service Bulletin No. 2021-25 "Extension of E-Signature Option for Paper Returns, Statute of Limitations Waivers, and Other Documents" (Dec. 29, 2021).


Multistate: To assist you in reviewing your state income tax withholding rates for 2022, Tax Alert 2022-0007 includes a chart of the most recent income tax withholding tables published by the states and US territories and the supplemental withholding rate if allowed.

Multistate: Though the federal minimum wage remains at $7.25 per hour, state minimum wage rates will increase in many states on Jan. 1, 2022. Increases in the minimum wage rates could have occurred as a result of voter approval, statutory law changes or because of annual inflation adjustments as provided under applicable law. Employers should be aware of differences in localities that independently set a minimum wage for employees working within their city or county limits (for example, several cities in California). For more on this development, see Tax Alert 2021-2292.

Multistate: Six U.S. taxing jurisdictions (i.e., California, Hawaii, New Jersey, New York, Puerto Rico and Rhode Island) operate state disability insurance (SDI) programs. In addition, 11 U.S. taxing jurisdictions (i.e., California, Connecticut, Colorado, District of Columbia, Massachusetts, New Hampshire, New Jersey, New York, Oregon, Rhode Island and Washington) operate, or will soon be operating, paid family and medical leave (PFML) insurance programs. For more on this development, see Tax Alert 2021-2308.


Washington: Income an in-state industrial design firm received from contracts entered into with a major airplane manufacturer for designing interiors of passenger airplanes was properly apportioned to Washington because the manufacturer was the design firm's "customer" and it received the "benefit" of the design firm's services in Washington. In so holding, the Washington Court of Appeals (WA COA) rejected the design firm's arguments that the income should have been apportioned to where the airplane manufacturer used the airline interiors and not where the interiors were manufactured (i.e., Washington). The WA COA explained that in determining the apportionable income subject to Washington's business and occupation tax, a taxpayer's apportionable activity is attributable to the state where the "customer" received the "benefit" of the taxpayer's services. WAC 458-20-19402(303) further provides that if the taxpayer's service related to tangible personal property, then the benefit is received where the tangible personal property is located (or intended/expected to be located). The WA COA agreed with the Washington Department of Revenue that Washington is where the design firm's customer, the manufacturer, received the benefit of the service. The WA COA reasoned that (1) the manufacturer is the entity the design firm contracted with and received gross income from; and (2) the manufacturer expected to use the created airline interiors during the manufacturing process in Washington. Walter Dorwin Teague Associates Inc. v. Washington Dept. of Rev., No. 54959-0-II (Wash. Ct. App., Div. II, Dec. 14, 2021).


InternationalPeru:The President of Peru may issue Legislative Decrees to enact certain tax measures, including regulating how silent partnerships are taxed and extending the value-added tax (VAT) exemption.For more on this development, see Tax Alert 2022-0004.

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 For purposes of the elective FTE tax, a "flow-through entity" includes an entity treated as an S corporation or a partnership for federal income tax purposes, but does not include a publicly traded partnership, entities disregarded for federal income tax purposes, or a person subject to tax under chapter 13 of the 1967 MI Income Tax Act (codified at MCL §§206.651 to 206.659) (i.e., persons subject to the Michigan financial institutions franchise tax). The law expressly defines "partnership" to include a limited liability company ("LLC") that is taxed as a partnership for federal income tax purposes. (See §MCL 206.807(1).)

2 The key operative provisions of the new FTE tax will be codified in newly enacted Part 4 of Michigan Income Tax Act of 1967 (the "1967 MI Income Tax Act") (constituting new Chapters 20 to 23 (MCL Section 206.801 to 206.847)).

3 "Member" when referenced for the FTE tax means a shareholder of an S corporation or a partner or member in a partnership. MCL 206.805(6).

4 Id. MCL §206.254(1).

5 Id. §206.254(2) and (3).

6 Mich. Dept. of Treas., Notice Regarding the Implementation of the Michigan Flow-Through Entity Tax (Jan. 14, 2022).

7 Id. §206.254(4).

8 Id. §206.847 ("The [FTE] tax … is levied and imposed for any tax year that [IRC] section 164(b)(6)(B) … limits the amount [of state and local tax] an individual is allowed to deduct under [IRC] section 164(a) for the same tax year. The [FTE] tax … is not levied and imposed for any tax year that [IRC] section 164(b)(6)(B) … does not limit the amount [of state and local tax] an individual is allowed to deduct under [IRC] section 164(a) … for the same tax year.")

9 Mich. Dept. of Treas., Notice: Instructions for Electing Into and Paying the Flow-Through Entity Tax (Dec. 22, 2021).

10 Nextel Communications of the Mid-Atlantic, Inc. v. Commonwealth, Department of Revenue, 171 A.3d 682 (Pa. 2017).

11 McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation of Florida, 496 U.S. 18 (1990).