30 January 2023 State and Local Tax Weekly for January 20 Ernst & Young's State and Local Tax Weekly newsletter for January 20 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. On Jan. 12, 2023, Governor Tim Walz signed HF 31, which, among other changes, updates Minnesota's date of conformity to the Internal Revenue Code (IRC) as amended through Dec. 15, 2022. HF 31 is generally effective as of Jan. 1, 2023. Changes that conform to federal provisions with retroactive effective dates, however, are retroactively effective to the date of the federal provision. IRC conformity: Minnesota's IRC conformity update is intended to align Minnesota law with the IRC for tax years 2017-22. The legislature acted quickly to allow the Minnesota Department of Revenue (MN DOR) time to update affected forms and instructions, and to work with certified tax software providers to update their products for the opening of the tax filing season. The MN DOR has posted a conformity chart and additional information about HF 31 on its website. HF 31 affects Minnesota conformity as follows: Addition for disallowed business interest — corporations and individuals. HF 31 requires taxpayers for tax years beginning after Dec. 31, 2018 and before Jan. 1, 2021, to add back the business interest deducted under IRC §163(j)(10)(A) and (B), which increased IRC §163(j)(10)'s limitation on adjusted taxable income (ATI) to 50% of ATI from 30% and allowed taxpayers to use their 2019 ATI in 2020.1 Entities that are part of a Minnesota combined report must compute adjustments under Minn. Stat. 290.34, Subd. 5, which requires the combined report entities to compute the limitation for Minnesota purposes in aggregate "consistent with the application to a consolidated group for federal income tax purposes." Subtraction for delayed business interest — corporations and individuals. For tax years in which Minn. Stat. 290.0131, Subd. 19 required an addition, HF 31 allows a subtraction adjustment that (1) equals the addition adjustment, less the sum of all amounts subtracted in all prior tax years, and (2) does not exceed the limitation on business interest in IRC §163(j).2 No subtraction is allowed for tax years beginning after Dec. 31, 2022; for each of the five tax years beginning after that date, however, taxpayers can subtract 1/5th of the sum of all carryforward amounts that remain after the expiration of the subtraction adjustment. Entities that are part of a combined reporting group must compute adjustments under Minn. Stat. 290.34, Subd. 5. which requires the combined report entities to compute the limitation for Minnesota purposes in the aggregate "consistent with the application to a consolidated group for federal income tax purposes." The change is retroactively effective for tax years beginning after Dec. 31, 2019. Addition related to net operating loss (NOL) deductions — individuals, trusts, and estates. An addition adjustment is required in the amount of any NOL arising in any tax year beginning after Dec. 31, 2017, but before Jan. 1, 2021, and carried back under IRC §172(b)(1)(D).3 HF 31 also allows an addition modification for the amount of an NOL deduction in any tax year beginning after Dec. 31, 2017, but before Jan. 1, 2021, that exceeds the deduction allowed under IRC §172(a)(2). Subtraction for delayed NOL deduction — individuals, estates and trusts. Effective retroactively for tax years beginning after Dec. 31, 2018, HF 31 allows a subtraction adjustment in the amount of any addition required by Minn. Stat. 290.0131, Subd. 20, less the sum of all amounts subtracted in all prior tax years that does not exceed 80% of federal taxable income. The excess, if any, is a delayed NOL deduction that must be carried forward to the earliest tax year. A subtraction under this rule is not allowed after 20 tax years from the tax year in which the NOL arises. The sum of the additions required under Minn. Stat. 290.0131, Subd. 20 are aggregated and assigned to the tax year immediately succeeding the tax year in which the NOL arises to determine the subtraction in that succeeding tax year and the amount to be carried forward. Modifications for excess business loss — individuals, estates and trusts. The amount of a disallowed loss carryforward under IRC §461(I)(1)(B) is a subtraction effective for tax years beginning after Dec. 31, 2025. For any tax year beginning after Dec. 31, 2017, and before Jan. 1, 2021, HF 31 allows an addition equal to a Minnesota disallowed loss carryforward, which is defined as a disallowed loss carryforward as defined in IRC §461(I)(2) for a loss not allowed under IRC §461(I)(1)(B). Temporary additions and subtractions: HF 31 enacted temporary additions and subtractions for corporations, individuals, trusts and estates that are effective retroactively to the date that the changes became effective for federal purposes. The MN DOR must apply the following subtractions and additions when computing a nonresident's Minnesota allocation percentage, a taxpayer's alternative minimum taxable income and income used to determine tax for composite files and the pass-through entity tax:
Corporations, individuals, trusts, and estates — temporary subtractions (to the extent not deducted from federal taxable income for corporations, trusts and estates or from federal adjusted gross income for individuals)
Statute of limitations extension: Any taxpayer whose tax liability changes as a result of HF 31 may file an amended return by Dec. 31, 2023. The MN DOR may audit and assess a taxpayer's return covered by HF 31 by the later of: (1) the date the statute of limitations expires for the original return (i.e., generally 3.5 years from the filing date); or (2) one year from the date that the taxpayer files an amended return due to the changes enacted in HF 31. Interest on any additional liabilities resulting from the HF 31 changes will not begin to accrue until Jan. 1, 2024. Pass through entity (PTE) tax credit: Minnesota has an elective PTE tax. A qualifying owner of a PTE may claim a credit based on its share of the PTE tax liability. Under HF 31, a PTE may not receive a refund of overpaid tax at the entity level once a qualifying PTE owner claims the credit. Qualifying owners must claim the refund on their return. This change is effective retroactively for tax years beginning after Dec. 31, 2020. For additional information on this development, see Tax Alert 2023-0164. Colorado: In his 2023 State of the State Address (Jan. 17, 2023), Governor Jared Polis said he wants to continue to work to reduce property taxes for Coloradans. Specifically, the governor is proposing a "long-term property tax relief package that reduces residential and commercial property taxes and creates a long-term mechanism to protect homeowners from being priced out of their homes, while protecting school funding." The governor, touting his support for the 2021 and 2022 ballot measures that reduced the state's income tax, called for further reductions to the state's income tax and he "doubled-down on" relief for working families via the earned income tax credit. In addition, the governor is proposing $120 million annually in new, clean energy tax credits as well as electric vehicle and e-bike tax credits. Connecticut: In his 2023 State of the State Address (Jan. 3, 2023), Governor Ned Lamont said "'I don't want more taxes, I want more taxpayers.' More taxpayers will guarantee a bigger economic pie that lets us keep up the progress in progressive." He also called for the enactment of "meaningful middle-class tax cut[s]". In a follow-up speech given Jan. 18, 2023, the governor said that a provision in his FY 2024-25 budget (to be delivered in February) will be to restore Connecticut's pass-through entity (PTE) tax credit to its original, revenue-neutral level of 93.01 percent, and make the PTE tax elective. (Connecticut is the only state with a PTE tax enacted as a workaround to the federal limitation on the state and local tax deduction that is mandatory and not elective.) Florida: In his inaugural address (Jan. 3, 2023), Governor Ron DeSantis noted that the state has a record budget surplus and said that the state "need[s] to enact a record amount of tax relief." Back in September, the governor announced his 2023 legislative proposal to provided $1.1 billion in tax relief to Florida families. The proposed relief would (1) reinstate the annual two-week back to school tax holiday in the fall and provide an additional two-week holiday in the spring; (2) make permanent the tax exemption for items for babies and toddlers (e.g., diapers, baby wipes, clothing and shoes for kids under five, cribs and strollers); (3) provide a yearlong tax exemption on certain household items under $25 (e.g., laundry detergent, toilet paper, hand soap, paper towels, trash bags), certain items for kids (e.g., books for children under 17, toys designated for kids between the ages of 2-12, children's athletic equipment) and pet food for household pets (with a permanent tax exemption for over-the-counter pet medications such as flea and tick prevention medicine); (4) provide a permanent tax exemption for items that contain medicinal ingredients and medical equipment; and (5) continue tax holidays for disaster preparedness, tools and home improvement, freedom week, and energy star appliances. Missouri: In his 2023 State of the State Address (Jan. 18, 2023), Governor Michael Parson said he is including $78 million to increase child care subsidy rates and establish the following three new credits: (1) child care contribution tax credit; (2) employer-provided child care assistance tax credit, which would benefit employers that offer child care assistance to employees; and (3) child care providers tax credit which would help those providing child care with payroll costs and incentivizes capital improvements to child care facilities. Nebraska: New Governor Jim Pillen announced his plan for "historic tax relief" (Jan. 18, 2023). The governor's plan would align the personal and corporate income tax rates and reduce both to 5.84 percent. Additional rate reduction would be provided annually until the rates are reduced to 3.99 percent by 2027. Relief also would be provided to those receiving social security income as the state exemption would be increased to 100 percent (from the current 60 percent). The assessment of agricultural and horticultural land would be changed from a market assessment to one based on income earning potential. Another proposal would shift the funding of community colleges from property tax to state support; this change would provide a statewide average property tax cut of 5.3 percent. New Jersey: In his 2023 State of the State address (Jan. 10, 2023), Governor Phil Murphy recapped prior year tax changes that helped New Jersey residents, and mentioned how the state has worked to overhaul and reform its tax incentives program. Looking forward, the governor said it was time "to focus on incenting jobs in New Jersey, wherever they are, regardless of whether they are in an office building in Newark or at a kitchen table in Cherry Hill." The governor wants to fold the development of green spaces and urban parks into the state's incentive program, and to continue to modernize the state's infrastructure. New Mexico: In her 2023 State of the State address (Jan. 17, 2023), Governor Michelle Lujan Grisham is proposing a "tax reform package" that will support working families and businesses. The reform package would cut the state's gross receipts tax rate again (it was cut in 2022) by an additional quarter of a percent; implement "common sense anti-pyramiding measures to make goods and services more affordable"; provide rebates to individuals ($750 for single filers, $1500 for joint filers); and reduce individual income tax for the middle class by making the tax system more progressive. The governor also asked for updates to the state's film tax credit, and to codify the state's zero-emissions goal in state statutes. In addition, the governor's FY 2024 budget recommendations, which are available here, includes $14 million for job training incentive programs. Rhode Island: In his 2023 State of the State address (Jan. 17, 2023), Governor Daniel McKee proposed a "broad tax relief plan to help Rhode Islanders navigate inflationary pressures and make our state a more competitive place to do business." The plan would reduce the state's sales and use tax. The reduction would be incremental, with the first reduction to 6.85 percent, with additional reductions until Rhode Island's sales and use tax rate is the same rate as the rate in Massachusetts. The governor's plan also would reduce the corporate minimum tax; stop the planned gas tax increase — currently set for a 3-cent increase on July 1; provide individuals with a tax rebate for gross receipts tax on their energy bills; eliminate the litter tax and replace it with a dedicated line item in the budget; and increase the state's rainy-day fund. Minnesota: A nonresident individual's gain from the sale of goodwill attributed to the sale of her stock ownership interest in a Minnesota S corporation to an unrelated third party constituted business income of a unitary business and, therefore, the gain from the sale of the stock is apportioned to Minnesota. In this case, the nonresident individual made an election under IRC § 338(h)(10) to treat the stock sale as an asset sale and the parties agreed that the unitary business principle applied. The parties, however, disagreed as to whether the gain from the sale of goodwill was business or nonbusiness income under Minn. Stat. §290.17. The Minnesota Tax Court (tax court) found the Minnesota Supreme Court (Court) reasoning in YAM Special Holdings 4 "directly applicable" to this case and rejected the taxpayer's argument that the tax court's ruling in Nadler 5 applied, noting that Nadler did not include a unitary business analysis. In YAM, the Court held that the sale of a partial interest in operating subsidiaries, which the Court determined had a sufficient connection to Minnesota and formed a unitary business at the time of sale, generated income for the unitary business. After applying the reasoning in YAM to this case, the tax court determined that the sales transaction at issue generated business income subject to apportionment. The tax court reasoned that the value of the S corporation's goodwill was based in part on its business operations, including revenue generated from Minnesota sales, and that "there is no dispute that the goodwill at issue was an integral asset of [the S corporation's] unitary business." The tax court also found that even if the transaction was considered nonbusiness income, it would still be allocable to Minnesota as a ratio percentage, and it rejected various arguments put forth by the taxpayer, including that the ruling in Nadler is binding on the Commissioner because Minn. Stat. 271.01, subd. 5 provided that "the tax court is the 'sole, exclusive, and final authority' on tax matters". Cities Management Inc. v. Commissioner of Revenue, Dkt. No. 9484-R (Minn. Tax Ct. Dec. 20, 2022). Montana: The Montana Department of Revenue (MT DOR) adopted amendments to rules AMR 42.26.601, 42.26.602 and 42.26.206 regarding the apportionment of railroad income. As modified, the rules provide that when a railroad has income from sources within and without Montana, the amount of income apportionable to Montana is as follows: the taxpayer's total revenue ton-miles occurring within Montana during the year (the numerator of the receipts factor) over the taxpayer's total revenue ton-miles occurring everywhere during the year (the denominator of the receipts factor). The provisions of these rules are effective for tax years beginning after Dec. 31, 2022. The MT DOR also repealed related rules ARM 42.26.603, 42.26.604 and 42.26.605. These changes were certified to the Secretary of State Jan. 2, 2023. (Mont. Admin. Reg. Jan. 13, 2023). Texas: The Texas Comptroller of Public Accounts (Comptroller) has proposed amendments to 34 Tex. Admin. Code § 3.591 to reflect the Texas Supreme Court (Court) ruling in Sirius XM Radio, Inc.6 In Sirius, the Court held that gross receipts from the sale of services should be sourced based on an "origin-based" system. Thus, in determining whether services are performed in Texas for purposes of apportioning receipts, taxpayers should look to where their employees or equipment performed services.7 The Comptroller's proposed amendments would modify the definition of "location of performance" in Section 3.591(e)(26)(A) by deleting the receipt-producing, end-product act discussion and examples8 and providing that "a service is performed at the location or locations where the taxable entity's personnel or property are doing the work that the customer hired the taxable entity to perform." Activities not directly used in the performance of the service would not be relevant in determining the location where the services were performed by the entity. Comments on the proposed rule are due by Feb. 19, 2023. Tex. Comp. of Pub. Accts., 34 Tex. Admin. Code § 3.591 (48 TexReg. Jan. 20. 2023). For additional information on this development, see Tax Alert 2023-0118. Nevada: The Nevada Tax Commission adopted amendments to regulation NAC 372.390 regarding the imposition of sales and use tax to repair work performed under a contract with the State or political subdivision. The amended regulation provides that a repairer (or a subcontractor of the repairer) who enters into a contract with the State or a political subdivision to perform repair work on, or to maintain property belonging to the State or political subdivision is the consumer of any parts and materials furnished in connection with such work, except if such repairer or subcontractor obtained a permit or registered (or is required to obtain a permit or register) pursuant to a contract with the State or political subdivision. The amended regulation was filed with the Secretary of State on Dec. 29, 2022. Nev. Tax Comm., LCB File No. R174-22 (Dec. 29, 2022). Texas: The Texas Comptroller of Public Accounts (Comptroller) issued a memo providing guidance on the taxability of credit rating services for legal entities and debt obligations. The Comptroller determined that credit ratings of legal entities are subject to sales/use tax as a credit reporting service, while credit ratings of debt obligations are not taxable. Under Texas law, credit reporting services means the assembly or furnishing of credit history or information relating to any person. A person includes corporations, organizations, governments or governmental subdivisions or agencies, business trusts, estates, trusts, partnerships, associations and any other legal entities. The Comptroller found that credit ratings of legal entities relate to a person but those of a debt obligation do not. The Comptroller said that taxpayers should begin collecting and remitting sales and use tax on their taxable credit rating services starting April 1, 2023. Tex. Comp. of Pub. Accts., STAR No. 202301006L (Jan. 17, 2023). Puerto Rico: In Administrative Determination (AD) 2022-11, the Puerto Rico Treasury Department (PRTD) announced that its new tax credit management system, established by Act 52-2022, will be available in the Internal Revenue Unified System (SURI) beginning Jan. 18, 2023. That date will be used for purposes of determining tax credits authorized before or after the implementation of the tax credit management system. Accordingly, tax credits authorized before Jan. 1, 2023, are tax credits authorized before the tax credit management system (pre-credits), and tax credits authorized on or after Jan. 1, 2023, are tax credits authorized after the tax credit management system (post credits). Taxpayers should register post credits in the tax credit management system to claim or transfer them. AD 2022-11 lists the credits that taxpayers must register in the tax credit management system. Taxpayers will not be able to claim post credits against their income tax liability if those credits are not registered in the tax credit management system. Taxpayers may claim pre-credits against their income tax liability for the three tax years following the implementation date of the tax credit management system (Jan. 1, 2023). Any credits remaining at the end of that three-year period may not be claimed in subsequent tax years. Taxpayers do not have to register pre-credits. For additional information on this development, see Tax Alert 2023-0106. Nebraska: The Nebraska Department of Revenue (NE DOR) issued guidance on when a transaction involving a trust is subject to the documentary stamp tax. The NE DOR said deeds transferring property to a trustee of a revocable trust are exempt from documentary stamp tax (the grantor remains viewed as the owner of the assets in the trust), while deeds transferring property to a trustee of an irrevocable trusts are subject to the documentary stamp tax unless the filer provides a valid Certificate of Exemption. The NE DOR noted that deeds filed to change the name of the trustee, and deeds transferring property from a trustee to a beneficiary of a trust, are exempt from the documentary stamp tax. The tax applies when property is transferred out of a trust to a nonbeneficiary because of a sale. Taxpayers claiming certain exemptions must file a signed certification of exemption; the filer must indicate the specific exemption that would apply if the transfer was made directly from the grantor to the trust beneficiary. Neb. Dept. of Rev., Directive 23-2 "Deeds to Trustees — Documentary Stamp Tax for Trusts and Certificate of Exemption" (Jan. 6, 2023)(supersedes Directive 12-2). California: Local California business tax filing deadlines are quickly approaching but are commonly overlooked. As the upcoming federal and state tax filing season approaches, taxpayers should be aware of the following information on reporting and paying San Francisco and Los Angeles business taxes (as well as those in other localities throughout the state). The due date for filing the San Francisco 2022 Annual Business Tax (SF ABT) return is on or before Feb. 28, 2023. The SF ABT return includes the reporting and payment of the Gross Receipts Tax or Administrative Office Tax, the Homelessness Tax or the Homelessness Administrative Office Tax, the Commercial Rents Tax and the Overpaid Executive Gross Receipts Tax. Taxpayers can request a 60-day filing extension by submitting a written request and paying at least 90% of the San Francisco taxes due by the filing deadline. The deadline for filing the Los Angeles 2023 Business Tax renewal9 is Feb. 28, 2023. Taxpayers can file their 2023 Los Angeles Business Tax renewal either by mail or electronically. The city both provides copies of its forms for download and completion in writing and allows for filing of renewal forms and payment of those taxes through its electronic filing system (with applicable instructions). Taxpayers can apply for a maximum filing extension of 45 days. An extension request must be made in writing, accompanied by the payment of at least 90% of the total tax due, and received or postmarked by the Feb. 28, 2023 filing deadline. For more on this development, see Tax Alert 2023-0128. California: Companies engaged in business in San Francisco and Los Angeles should consider reviewing their San Francisco Annual Business Tax (SF ABT) filings and their Los Angeles Business Tax (LABT) renewal before Feb. 28, 2023, the expiration date for each city's one-year statute of limitation for filing refund claims for tax year 2021 (LABT renewal period 2022). For tax year 2021, SF ABT filings include reporting and payment of the Gross Receipts Tax (SF GRT) or Administrative Office Tax, the Homelessness Gross Receipts Tax or the Homelessness Administrative Office Tax, and the Commercial Rents Tax. In Los Angeles, the 2022 LABT renewal (which is based upon 2021 calendar-year activity) included reporting and payment of the Los Angeles Gross Receipts Tax (LA GRT). For more on this development, see Tax Alert 2023-0133. Multistate: SUI trust funds are largely financed by employer contributions (in Alaska, New Jersey and Pennsylvania employees also make contributions). States are required to maintain a SUI taxable wage base of no less than the limit set under the Federal Unemployment Tax Act (FUTA). The 2023 FUTA wage limit of $7,000 has remained unchanged since 1983, despite increases in the federal minimum wage and annual cost-of-living adjustments over the last 40 years. Some states are conservative in their approach to maintaining adequate SUI trust fund reserves. Consequently, the SUI wage base is flexible in those states, meaning, it is indexed to the average wage or varies based on the trust fund balance. According to the U.S. Department of Labor, in 2022, 25 jurisdictions had a flexible wage base. For a comparison of the 2022 and 2023 SUI wage bases and percentage of increase/decrease, if applicable (as of Dec. 19, 2022), see Tax Alert 2022-1913. For information concerning the state minimum wage effective Jan. 1, 2023, see Tax Alert 2022-1930. The COVID-19 emergency put a strain on SUI trust funds, and that could have resulted in across-the-board increases in employer SUI taxes. Many jurisdictions avoided that outcome because they deposited federal COVID-19 stimulus funds into their unemployment insurance (UI) trust funds and/or enacted legislation to reduce the impact on employer tax rates caused by the reduction in their trust funds. In addition, most jurisdictions relieved employers of regular COVID-19 UI benefits during at least a part of the pandemic, and some continue to provide this relief, further reducing the impact of COVID-19 unemployment insurance benefits on individual employer tax rates. See the footnotes in our chart (in Tax Alert 2023-0123) for details about special actions some states took to lessen increases in their SUI tax rates and/or wage bases in 2023. For information concerning the 2023 contribution rates and wage bases for state disability, paid family and medical leave and long-term care insurance as of Dec. 21, 2022, see Tax Alert 2022-1920. For information concerning the 2023 state income tax withholding rates and hyperlinks to the latest formulas/instructions as of Jan. 9, 2023, see Tax Alert 2023-0027. Washington: Proposed bill (SB 5482) would repeal the state's business and occupation (B&O) gross receipts-based tax and replace it with a margins tax modeled after the Texas franchise tax. Key features of the proposed margins tax include:
If enacted, the proposed changes would be effective as of Jan. 1, 2027. SB 5482 was introduced on Jan. 19, 2023. International — Guatemala: Through GA 12-2023, published on Jan. 9, 2023, the Guatemalan Ministry of Public Finance issued amendments to GA 5-2013, the VAT Law Regulations. In addition to GA 12-2023, on Oct. 14, 2022, Government Agreement number 245-2022 (GA 245-2022), issued by the Ministry of Public Finance, was published in the Official Gazette, which also contained reforms to GA 5-2013, the VAT Law Regulations. For additional information on this development, see Tax Alert 2023-0126. International — Spain: From Jan. 1, 2023, the Spanish value-added tax (VAT) law for the "use and enjoyment rule" that applied to certain services supplied to customers established outside the European Union (EU) has been amended, restricting the application of this rule. The new provision means that most services supplied by Spanish businesses to non-EU customers will no longer be subject to Spanish VAT. For additional information on this development, see Tax Alert 2023-0107. 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 If taxpayers followed Minnesota law at the time of the original filing, no impact would be expected from this change as Minnesota followed the 30% ATI limitation at that time and had not incorporated the special IRC §163(j) rules enacted by the CARES Act. 2 This is a subtraction from federal adjusted gross income for individuals and from federal taxable income for corporations. 3 An addition is not required for an NOL deduction that is a farming loss under IRC §172(b)(1)(B) and carried to the preceding years in which the farming loss was incurred. 7 In November 2022, the Texas Court of Appeals, Third Circuit (appeals court), on remand from the Court, held that the taxpayer provided sufficient evidence to support its cost-based analysis of the "fair value" of services performed in the state for purposes of sourcing gross receipts from the sale of services. Hegar v. Sirius XM Radio, Inc., No. 03-18-00575-CV (Tex. Ct. of App., 3rd Dist., Nov. 10, 2022). 8 The examples are for "admission fees, subscription fees or other charges for audience observing a live or pre-recorded performance" and architectural design. Document ID: 2023-0178 |
