State and Local Taxation: Headline News and Trends

September 16, 2020 David A. Fruchtman, Partner Chair, Steptoe’s National State and Local Practice

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Today’s Agenda

Section I: Megatrends ( 3‐33) Section II: Transaction (34‐43) Section III: Business Activities Taxes (44‐54) Section IV: Miscellaneous (55‐63)

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Megatrends and Developments US Supreme Court

Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020) Ban on religious tax credit is unconstitutional

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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

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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))

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Megatrends and Developments US Supreme Court

Great Lakes Minerals LLC v. State of Ohio, No. 20-24 Distributed for Conference of 9/29/2020

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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

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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

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Megatrends and Developments Federal Proposals

Remote and Mobile Worker Relief Act of 2020. S. 3995 (introduced 18, 2020)

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Megatrends and Developments Federal Proposals

Remote Worker Relief Act of 2020 H.R. 8056 (introduced August 14, 2020)

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Megatrends and Developments Federal Proposals

Multi‐State Worker Tax Fairness Act of 2020. H.R. 7968 (introduced August 7, 2020)

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Megatrends and Developments Federal Proposals

Federal Mobile Workforce Act S. 4318 (introduced July 27, 2020)

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Megatrends and Developments State Proposals

• Tax Presence

• Withholding

• Taxing State

• Other Issues

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Megatrends and Developments Federal and State Proposals

What’s not to love about these Acts? Maybe plenty…

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Megatrends and Developments Federal and State Proposals

Expect jurisdictions with the convenience of the employer test to take a very close look.

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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, , New Hampshire, South Dakota, , , Washington, and Wyoming)

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Megatrends and Developments Federal and State Proposals

“Sununu warns NH could sue if Mass. levies income tax on telecommuters”

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Megatrends and Developments Would Such State Actions be Legal?

A possible case of “heads we lose, tails they win”?

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Megatrends and Developments Might Such Federal Actions Be Unconstitutional?

For possibly relevant analyses, see