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State and Local Taxation: Headline News and Trends

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State and Local Taxation: Headline News and Trends State and Local Taxation: Headline News and Trends September 16, 2020 David A. Fruchtman, Partner Chair, Steptoe’s National State and Local Tax Practice www.steptoe.com Today’s Agenda Section I: Megatrends ( 3‐33) Section II: Transaction Taxes (34‐43) Section III: Business Activities Taxes (44‐54) Section IV: Miscellaneous (55‐63) 2 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments US Supreme Court Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020) Ban on religious tax credit is unconstitutional 3 www.steptoe.com Megatrends and Developments US Supreme Court Still pending: Delaware v. Pennsylvania and Arkansas v. Delaware, Dkt. Nos. 22O145 and 22O146 (consolidated October 3, 2016) Escheat of unclaimed property; at Special Master 4 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments US Supreme Court In briefing: CIC Services, LLC v. IRS, Dkt. No. 19-930 – IRS Response Filed 9/8/20 Does the Anti-Injunction Act bar challenges to tax reporting and recordkeeping rules? Possible interplay with the Tax Injunction Act (see DMA v. Brohl, 135 S. Ct. 1124 (2015)) 5 www.steptoe.com Megatrends and Developments US Supreme Court Great Lakes Minerals LLC v. State of Ohio, No. 20-24 Distributed for Conference of 9/29/2020 6 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments US Supreme Court Rogers County Bd. of Tax Roll Corrections v. Video Gaming Technologies, Inc., No. 19-1298 Distributed for Conference of 9/29/2020 7 www.steptoe.com Megatrends and Developments Deductibility Limitation State of New York v. Mnuchin as Sec’y of Department of Treasury, et al, US Court of Appeal 2d Cir., No. 19-3962 • On September 3, 2020, case calendaring was proposed for the week of November 30, 2020 8 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Federal Proposals Remote and Mobile Worker Relief Act of 2020. S. 3995 (introduced 18, 2020) June 9 www.steptoe.com Megatrends and Developments Federal Proposals Remote Worker Relief Act of 2020 H.R. 8056 (introduced August 14, 2020) 10 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Federal Proposals Multi‐State Worker Tax Fairness Act of 2020. H.R. 7968 (introduced August 7, 2020) 11 www.steptoe.com Megatrends and Developments Federal Proposals Federal Mobile Workforce Act S. 4318 (introduced July 27, 2020) 12 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments State Proposals • Tax Presence • Withholding • Taxing State • Other Issues 13 www.steptoe.com Megatrends and Developments Federal and State Proposals What’s not to love about these Acts? Maybe plenty… 14 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Federal and State Proposals Expect jurisdictions with the convenience of the employer test to take a very close look. 15 www.steptoe.com Megatrends and Developments Federal and State Proposals Expect states with no or a narrow personal income tax to take an even closer look. (Alaska, Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Washington, and Wyoming) 16 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Federal and State Proposals “Sununu warns NH could sue if Mass. levies income tax on telecommuters” * 17 www.steptoe.com Megatrends and Developments Would Such State Actions be Legal? A possible case of “heads we lose, tails they win”? 18 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Might Such Federal Actions Be Unconstitutional? For possibly relevant analyses, see “Reflections on the Constitutionality of Public Law 86‐272” * 19 www.steptoe.com Megatrends and Developments AICPA State Tax Filing Guidance for Coronavirus Pandemic Updated: 9/1/20 – 9 am et U.S. states are providing tax filing and payment due date relief for individuals and businesses. The AICPA has compiled the below latest developments on state tax filings related to coronavirus. This document contains the first pages as a summary in reverse chronological order, starting with the furthest revised original due date of state filing relief to the soonest date order. The next part of the chart details each state or jurisdiction’s guidance on tax filing and payment relief in alphabetical order by state. The final part covers COVID- 19 related federal updates, AICPA tax policy and advocacy efforts, AICPA tax resources, and AICPA resources, and other state tax resources, including AICPA Recommendations on State and Local Tax Filing, Payment, and Administrative Relief during the Coronavirus Pandemic, AICPA Chart on States’ Guidance on Electronic Signatures, and the AICPA Federal Due Dates Chart Updated for COVID-19 Relief (open to AICPA members) and State Due Dates Chart Updated for COVID-19 Relief (open to AICPA members) that takes the relevant state due date information from this document and organizes it further. This document contains all the links and details to the states’ guidance and dates of releases. We plan to update this information daily while the states are issuing guidance. Because the state tax authorities are often updating their information, it is best to confirm with each state’s department of revenue website for the most updated information. Massive collection of state State Guidance/Date Guidance Relief Provisions for Coronavirus Other Information Summary of State filing relief/revised due dates in response to Coronavirus [Note: States Filing - 7 states not impacted for individual income Relief All states with a personal income tax have extended their 4/15 due dates taxes - no personal income tax (AK, FL, NV, (40 with a 7/15 deadline, and 7 (5 income taxes and 2 other taxes) states SD, TX, WA, WY), and 2 states no tax on C19 responses: with other deadlines – as detailed below). wages (NH and TN – interest and dividends) (41 states have personal income tax) – 41 states (including DC) individual income tax and some other entities - 2 states (SD, WY) no corporate income tax 4/15 to 7/15 filing and payments deadline for coronavirus pandemic. and no gross receipts tax, [AK, AL, AR, AZ, CA, CO, CT, DC, DE, GA, IL, IN, KS, KY, LA, - 4 states (NV, OH, TX, WA) have gross MA, ME, MD, MI, MN, MO, MS, MT, NC, ND, NE, NJ, NM, NY, OH, receipts taxes instead of corporate income taxes “State Tax Guidance OK, OR, PA, RI, SC, TN, TX, UT, VT, WI, WV] and USVI have - at least 4 states have 1 employee in state changed from 4/15 to 7/15. Note: CT and MN business deadlines not causes nexus (CA, ID, NJ, VA) 7/15. PA corporation deadline extended from 5/15 to 8/14. MI - 6 states have a convenience of the employer corporation deadline extended to 7/31. Florida extended its 5/1 test for remote workers generally (AR, CT, DE, corporate income/franchise tax return deadline to 6/1 for payments and NE, NY, PA) for requesting an extension (to file by extended due date of 11/2/20) and for the Coronavirus for filing to 8/3. 16 States with 15 reciprocity agreements District of Columbia (Maryland, Virginia) - 4 states for individual income tax changed to other filing and Illinois (Iowa, Kentucky, Michigan, Wisconsin) payments deadline for coronavirus pandemic [IA (7/31), HI, (7/20), ID Iowa (Illinois) (6/15), VA (filings 5/1, 6/1 payments)] and Puerto Rico (6/15). Kentucky (Illinois, Indiana, Michigan, Ohio, Virginia, West Virginia, Wisconsin) - 2 states for other taxes have changed deadlines for the pandemic [NH Maryland (District of Columbia, Pennsylvania, Pandemic” (6/15 - business tax, interest and dividends tax, WA (6/15 - annual Virginia, West Virginia) business and occupation tax)]. Michigan (Illinois, Indiana, Kentucky, Minnesota, Ohio, Wisconsin) 2020 Estimated Tax Payments Relief - Minnesota (Michigan, North Dakota) - 23 states followed federal and moved both Q1 and Q2 estimated Montana (North Dakota) payments to 7/15 – (AL, CA, CO, CT, GA, IN, KY, ME, MD, MA, New Jersey (Pennsylvania) MI, MS, MO, NC, NM, ND, OH, PA, RI, SC, VT, WV, WI) North Dakota (Minnesota, Montana) - 7 states Q1 moved to 7/15, Q2 remains 6/15 – DE, MT, NE, NJ, Ohio (Indiana, Kentucky, Michigan, NY, OK (and TN franchise and excise tax). Pennsylvania, West Virginia) 20 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Florida Florida. “COVID‐19 Taxpayer Task Force” (Florida Tax Watch report, August 20, 2020) 21 www.steptoe.com Megatrends and Developments Taxing the Gig Economy Georgia. New Transportation Services Tax on rideshare and similar services (e.g., Lyft and Uber). * 22 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Taxing the Gig Economy Phoenix. Arizona Supreme Court upholds Phoenix “trip fees” charged providers of transportation to and from the Sky Harbor. * 23 www.steptoe.com Megatrends and Developments Taxing the Gig Economy For more on taxing the gig and sharing economies see "The Int'l, Federal and State Taxation Forecast for 2020" Law360 (January 21, 2020). 24 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Financial Transaction Taxes New Jersey. Companion bills propose $.0025 tax on “financial transactions processed through electronic infrastructure” in New Jersey. * 25 www.steptoe.com Megatrends and Developments Financial Transaction Taxes New Jersey. In response, NYSE exploring moving its facility out of NJ (“a change in location can be performed in a matter of minutes“). See “Trader Update,” NYSE (September 11, 2020) . * 26 www.steptoe.com Fruchtman 9/16/2020 Megatrends and Developments Financial Transaction Taxes Query: Does New Jersey’s proposal discriminate against electronic commerce in violation of the Internet Tax Freedom Act (47 USC 609, et seq.)? 27 www.steptoe.com Megatrends and Developments Financial Transaction Taxes For more on taxing jurisdictions’ growing interest in financial transaction taxes, see “The New Front Line: Transaction Taxes on Services,” Tax Executive (May 21, 2019).
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