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Income Tax Nexus NEXUS AFTER WAYFAIR: MULTI-STATE TAXATION OF BUSINESSES (MSTB) Ed Zollars, CPA (Arizona) www.currentfederaltaxdevelopments.com Download update and slides at www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 1 WHAT’S HAPPENING (MY OVERVIEW) • States are moving to deal with Wayfair (vast majority have established standards tied to the Wayfair opinion) • US Supreme Court takes on state tax reach again—this time in Trusts – Kaestner Trust decision due from SCOTUS (perhaps today) – May tell us if SCOTUS looks to use Wayfair to settle state tax issues in general or if we are going to see tax type specific changes • States are pushing income tax reach as well (Capital One case in Oregon last year) www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 2 OVERVIEW • Importance of Multistate Taxation • Personal Income Tax Considerations • Sales Tax/Use Tax Nexus Developments • Sales Tax Issues and Other Controversies • Income Tax Nexus • Determining State Taxable Income • Apportionment and Allocation of Income • Taxing Pass-Through Entities • Considering Tax Planning Opportunities www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 3 2018 STATE BUSINESS TAX CLIMATE INDEX—TAX FOUNDATION www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 4 2018 STATE BUSINESS TAX CLIMATE INDEX—TAX FOUNDATION (CONT.) • No major tax as common factor among many top 10 states • Property taxes and unemployment insurance taxes levied in every state • Several states do without one or more of the following major taxes: – Corporate income tax – Individual income tax – Sales tax www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 5 2018 STATE BUSINESS TAX CLIMATE INDEX—TAX FOUNDATION (CONT.) • Wyoming, Nevada, South Dakota—no corporate or individual income tax • Nevada—imposes gross receipts taxes • Alaska—no individual income or state-level sales tax • Florida—no individual income tax • New Hampshire, Montana, Oregon—no sales tax • Indiana, Utah—all major tax types, but with low rates on broad bases www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 6 2018 STATE BUSINESS TAX CLIMATE INDEX—TAX FOUNDATION (CONT.) • The bottom 10 states tend to have numerous shortcomings in common: – Complex, non-neutral taxes with comparatively high rates • New Jersey is a good example of why it is last: – Some of the highest property tax burdens in the country – One of just two states to levy both an inheritance tax and an estate tax (for now) – Some of the worst-structured individual income taxes in the country www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 7 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 8 2018 STATE BUSINESS TAX CLIMATE INDEX—TAX FOUNDATION (CONT.) • Notable Changes • Kansas—Addressed structural deficits with • Arizona—Improved six places on the Index’s a new income tax bracket and a 5.2% top corporate component as a multiyear rate, slipping three places on the Index phasedown concluded with a 4.9% corporate • New Mexico—Continued phase-in of income tax rate corporate income tax reductions improved • California—Extended income but not sales tax the state one place on the Index’s hikes, though local sales tax increases dropped corporate tax component California in the Index’s sales tax component • North Carolina—Reduced the corporate • District of Columbia—Continued tax reform rate to 3% and the individual rate to efforts (including a corporate rate cut) improved 5.499%, improving the state’s individual D.C. two places on the Index’s corporate component income component ranking • Illinois—Hiked both individual (3.75% to 4.95%) • Rhode Island—Unemployment insurance and corporate (7.75% to 9.50%) income tax tax reform drove its Index UI component rates, dropping the state from 28th to 29th on rank from 50th to 23rd and improved the the Index state to 41st overall www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 9 2017 STATE BUSINESS TAX CLIMATE INDEX—TAX FOUNDATION • For the complete report, visit: – https://taxfoundation.org/publications/state-business-tax-climate-index/ or – https://files.taxfoundation.org/20171016171625/SBTCI_2018.pdf • Or, visit http://taxfoundation.org/ – Click “State Taxes” – Then, scroll down to “Major Publications” and click link to “State Business Tax Climate Index” www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 10 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 11 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 12 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 13 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 14 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 15 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 16 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 17 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 18 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 19 TAX FOUNDATION • http://taxfoundation.org www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 20 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 21 ISSUES TO KEEP AN EYE ON • Federal partnership audit reform effective 2018 – Tax assessed at partnership level – Limited opt-out allowed • Tax discrimination decisions based on different business models instead of actual goods or services provided – Examples: ➢ Cable vs. satellite ➢ Taxi vs. rideshare ➢ Hotels vs. online lodging www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 22 IMPORTANCE OF MULTISTATE TAXATION • Indiana University sales tax expert John Mikesell addressed the Nebraska Tax Reform Commission: – ‘‘Your objective of tax policy is to get your revenue system to behave like a pickpocket—and not like a mugger.’’ www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 23 2014 TOTAL STATE TAX COLLECTIONS General Sales Individual Corporation Severance Documentary Total 2014 and Gross Income Taxes Net Income Taxes and Stock State Tax Receipts Taxes Transfer Taxes Collections Taxes 271,956,649 310,956,374 46,275,970 17,778,758 6,823,581 653,791,332 41.6% 47.6% 7.1% 2.7% 1.0% 100% www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 24 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 25 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 26 EXPLORING NEW REVENUE SOURCES • Taxing Marijuana: The Washington and Colorado Experience – Tax Foundation Fiscal Fact – No. 437, August 2014 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 27 KEY FINDINGS • Because marijuana can be purchased as a cigarette, an edible, a liquid, or vapor—all with a wide variety of concentrations—a specific excise tax is untenable. • Colorado collects tax revenue from marijuana sales through a 15% excise- based tax on the average wholesale market rate; a 10% state tax on retail marijuana sales; a state sales tax of 2.9%; varied local sales taxes; and local marijuana taxes, such as a 3.5% tax in Denver. www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 28 KEY FINDINGS (CONT.) • Washington State collects tax revenue from marijuana sales through a 25% tax on producer sales to processors; a 25% tax on processor sales to retailers; a 25% tax on retailer sales to customers; a state business and occupation (B&O) gross receipts tax; a state sales tax of 6.5%; and varied local sales taxes. – The total effective tax rate is about 44%. • Tax collections in Colorado have fallen short of projected revenue estimates, whereas collections in Washington have fallen within the wide range of project revenue estimates. www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 29 KEY FINDINGS (CONT.) • Colorado’s marijuana revenue shortfall is due to incorrect projections about the switch from lower-taxed medical marijuana to higher-taxed retail marijuana by consumers. • States with possible upcoming ballot initiatives should take note of effective and ineffective methods of taxing marijuana, as the issue is likely to expand. www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 30 www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 31 SALES TAX/USE TAX NEXUS DEVELOPMENTS “Sales taxes are some of the most easily understood taxes because every time a consumer makes a purchase, they can see the rate on the receipt.” —Tax Foundation economist Scott Drenkard www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 32 SALES TAXES THROUGHOUT THE STATES IN 2017 • There are 45 states that collect statewide sales taxes. • There are 38 states that collect local sales taxes. • The 5 states with the highest average combined state-local sales tax rates are as follows: – Louisiana (10.02%) – Tennessee (9.45%) – Arkansas (9.34%) – Washington (9.20%) – Alabama (9.03%) www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 33 SALES TAXES THROUGHOUT THE STATES IN 2017 (CONT.) • There are 5 states that do not have statewide sales taxes: – Alaska – Delaware – Montana – New Hampshire – Oregon • Alaska and Montana allow localities to charge sales taxes. • There are 5 states with the lowest average combined rates: – Alaska (1.76%) – Hawaii (4.35%) – Wyoming (5.26%) – Wisconsin (5.42%) – Maine (5.5%) www.currentfederaltaxdevelopments.com/way19 © Kaplan, Inc. 34 SALES TAXES THROUGHOUT THE STATES IN 2017 (CONT.) • Sales tax rates differ by states, but sales tax bases also impact how much revenue is collected from a tax and how the tax affects the economy. • Differences in sales tax rates cause consumers to shop across borders or buy products online. © Kaplan, Inc. 35 STATE AND LOCAL SALES TAX RATES AS OF JANUARY 1, 2018 (a)
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