Current Corporate Income Tax Developments (Part I)

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EXECUTIVE SUMMARY

• A number of states sought to expand their taxing power by passing statutes specifically adopting the use of economic nexus or defining the terms “doing business” and “active solicitation” to include more out-of-state corporations.
• The move toward states’ disallowing the dividends-received deduction for captive REITS and expenses and costs paid to these entities continued. Some states also passed statutes clarifying the meaning of the term “captive REIT.”
• Several states passed legislation that decoupled from the new federal tax provisions under Sec. 108(i) allowing deferral of income arising from certain discharged business indebtedness.

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During 2009, there were many changes in the area of state corporate income taxation. Numerous state statutes were added, deleted, or modified; court cases were decided; regulations were proposed, issued, and modified; and bulletins and rulings were issued, released, and withdrawn. This two-part article focuses on some of the more interesting items in the following corporate income tax areas: nexus, tax base, allocable/apportionable income, Sec. 338(h)(10) transactions, apportionment formulas, filing methods/unitary groups, and administration.The article also includes several other significant state tax developments. Part I, below, covers the first four areas; the remaining topics will be reviewed in Part II in the April 2010 issue.

Nexus

Alabama

For tax years beginning after 2008, HB 69, Laws 2009, provides a nexus exception for income from qualified investment partnerships (QIPs). The Department of Revenue (DOR) has since adopted Rules 810-3-24.2-.02 and -.03 to provide guidance related to restrictions and requirements for entities eligible to be a QIP.

California

For tax years beginning after 2010, SB X3 15, Laws 2009, provides that a taxpayer is doing business and thus subject to tax if the taxpayer’s California sales exceed the lesser of $500,000 or 25% of the taxpayer’s total sales, its California property exceeds the lesser of $50,000or 25% of the taxpayers property, or its California payroll exceeds the lesser of $50,000 or 25% of the total compensation paid by the taxpayer. However, the nexus standard will be subject to the limitations on a state’s assertion of nexus for sales of tangible personal property contained in P.L. 86-272.

Colorado

The DOR has proposed adoption of the Multistate Tax Commission’s (MTC) factor presence nexus standard under which nexus will be created if the taxpayer exceeds $500,000 of Colorado sales or $50,000 of Colorado property or payroll.¹ In another development, the DOR ruled that an out-of-state insurance company that solely generated Medicare Part D premiums (which under federal law are exempt from Colorado’s gross premiums tax) is not subject to the corporation income tax.²

Connecticut

HB 6802, Laws 2009, adopts economic nexus for tax years beginning after 2009. A company has substantial economic presence and thus will be subject to tax if it purposefully directs business toward the state. Its purpose can be determined by analyzing factors such as the frequency, quantity, and systematic nature of its economic contact with the state.

Hawaii

The governor vetoed HB 1405, which among other provisions included an economic nexus standard under which taxpayers would have been presumed to have nexus if they engaged or solicited business with 20 or more persons within Hawaii or had at least $100,000 in income or gross proceeds attributable to Hawaii sources.

Kentucky

The Kentucky Court of Appeals affirmed a circuit court’s decision, agreeing that an out-of-state corporation had acquired nexus due to its 99% limited interest in a partnership doing business in Kentucky.³ However, the court reversed the circuit court’s ruling and reasoning requiring the use of a standard three-factor apportionment formula and instead held that the corporation was taxable on its share of the partnership’s distributable net income based on its business done in Kentucky. “Business done” was determined under applicable state statutes to be the partnership’s single receipts factor, the ratio of gross receipts or services performed in Kentucky to gross receipts or services performed everywhere.

Massachusetts

Massachusetts’s highest court concluded⁴ that the constitutionality of the imposition of the financial institution tax is determined not by Quill’s⁵ physical presence test but by the substantial nexus test articulated in Complete Auto.⁶ The court found that while the concept of substantial nexus is more elastic than physical presence, it plainly means a greater presence, both qualitatively and quantitatively, than the minimum connection that would satisfy a Due Process Clause inquiry. The court then determined that the taxpayers had a substantial nexus with Massachusetts. The U.S. Supreme Court has since denied the petition to review this decision.

In another decision issued the same day as Capital One, the Massachusetts Supreme Judicial Court similarly ruled that the corporate excise tax could be imposed on royalties earned by an out-ofstate trademark company under a licensing agreement that based the royalties on in-state affiliate retailers’ sales.⁷ The court also upheld a related penalty imposition, concluding that the taxpayer did not show that it acted with reasonable cause in failing to file the corporate excise tax returns and pay the underlying taxes. The U.S. Supreme Court also denied review of this decision.

Michigan

The Michigan Department of Treasury issued a draft proposed rule defining “active solicitation” for establishing economic nexus under the Michigan Business Tax.⁸ Similar to Revenue Administration Bulletin 2007-6, the draft rule provides that solicitation is purposeful when it is directed at or intended to reach persons within the state or the Michigan market. Active solicitation includes, but is not limited to, solicitation through the use of mail, telephone, and e-mail; advertising, including print, radio, internet, television, and other media; and maintenance of an internet site over or through which sales transactions occur with persons within Michigan.

Minnesota

Effective for tax years beginning after 2008, SF 832, Laws 2009, extends the exception to the minimum contacts required for corporate income tax jurisdiction to include an entity’s ownership of property on the premises of a printer under specific circumstances.

Missouri

The DOR ruled that an out-of-state insurance company that solely generated Medicare Part D premiums (which are exempt from Missouri’s gross premiums tax) was subject to Missouri’s corporation income tax because the company did not pay tax on its gross premiums in Missouri and therefore was not exempt from the Missouri corporation franchise tax.⁹ In response to this ruling, HB 577, Laws 2009, provides that effective August 28, 2009, insurance companies that are subject to the annual tax on gross premium receipts are exempt from corporate income and franchise taxes (i.e., the law no longer requires that the insurance company “pay” the gross premium tax to be exempt from the corporate tax).

Nebraska

The DOR explained that trucking companies transporting goods over Nebraska roads are subject to corporate income tax but are not required to apportion income to Nebraska unless: (1) the company owns or rents any real or personal property in Nebraska, other than mobile property; (2) the company makes any pickups or deliveries within Nebraska; (3) the company travels more than 25,000 mobile miles within Nebraska or the total mobile miles within Nebraska exceed 3% of the total mobile miles traveled in all states; or (4) the company makes more than 12 trips into Nebraska.¹⁰

New Jersey

The New Jersey Tax Court held that a 2006 regulation amendment that removed the direct investment in a non– publicly traded passthrough entity from the definition of “qualified investment asset” only applied prospectively because there was no showing that the 2006 amendment was merely a clarification of the department’s prior interpretation of the rule.¹¹ Accordingly, a holding company’s limited partner interest in a New Jersey partnership did not subject it to tax for the 2003 tax year at issue because the holding company qualified as an investment company under the previous version of the regulation.

In a different decision, the New Jersey Tax Court held that two out-of-state software companies that sold software on CD-ROMs to New Jersey customers were not subject to New Jersey’s corporation business tax because one company lacked the requisite Commerce Clause substantial nexus to justify such taxation, given that its in-state activities were de minimis, and the other company’s in-state solicitation activities were protected by P.L. 86-272.¹²

The latter company was, however, subject to New Jersey’s corporate minimum tax based on its employment of an in-state sales representative, as P.L. 86-272 does not afford protection against this tax. The director unsuccessfully argued that the companies were subject to state corporation business tax under Lanco¹³ economic nexus principles, claiming that they were licensing intangible property in New Jersey via their software licensing agreements with in-state customers.

In another development, the New Jersey Supreme Court reversed the Appellate Division’s decision to hold that the economic nexus rule established in Lanco applies for tax years prior to 1996, the year in which an amended department regulation added an example providing that a royalty-earning intangible holding company has income tax nexus because of earning trademark royalties related to sales of products by an affiliate in New Jersey.14 The court reasoned that the regulatory example added in 1996 was not a policy change but merely clarified and explained the existing statute and regulation where the use of intangible property for income-producing purposes in New Jersey renders that property’s owner subject to taxation.

New York

An administrative law judge (ALJ) ruled that two out-of-state corporate member holding companies that owned a limited liability company (LLC) treated as a partnership, which in turn held a general partner ownership interest in another New York partnership, had nexus with New York based on their ownership interests in the LLC, even though these companies were allegedly not unitary with the partnerships.¹⁵

New York City

For tax years beginning after 2010, a credit card issuer that has any of the following is subject to tax: (1) it has issued credit cards to 1,000 or more customers with New York City mailing addresses; (2) it has contracts with merchants with 1,000 or more New York City locations; (3) the number of New York City customers and New York City merchant locations adds up to 1,000 or more; or (4) it has combined receipts of $1 million or more from New York cardholders and New York merchant locations.¹⁶

Oregon

In light of taxpayer questions about the application of a 2009 amnesty program and subsequent 25% nonparticipation amnesty penalty, in an October 15, 2009, release the DOR responded that it intends to apply the economic nexus regulation adopted in May 2008 to all periods open to examination.

Wisconsin

2009 Wisconsin Act 2 expanded the definition of “doing business” to include, among other items, regularly soliciting business and holding loans secured by real or tangible property in Wisconsin. In a related development, effective December 31, 2009, the DOR adopted emergency amendments to Rule 2.82 to: expand the activities that create nexus based on Act 2; clarify that nexus for part of a tax year is recognized as nexus for the entire tax year; provide that the same nexus standards apply to the recycling surcharge as apply to the corporation franchise or income tax; and define loans for nexus-creating purposes to, among other things, exclude interests in a real estate mortgage investment conduit or other mortgage-backed or asset-backed securities.

State Tax Base

The majority of states imposing a corporate income-based tax begin the computation of state taxable income with taxable income as reflected on the federal corporate income tax return (Form 1120, U.S. Corporate Income Tax Return). These states use either taxable income before net operating loss (NOL) and special deductions (Line 28) or taxable income (Line 30). Certain state-specific addition and subtraction modifications are then applied to arrive at the state tax base. Following is a summary of the significant changes to the states’ tax bases.

Deductions Related to Dividends

Arkansas

HB 1480, Laws 2009, disallows the dividends-paid deduction (DPD) for captive real estate investment trusts (REITs) for tax years beginning after 2008.

California

Upon rehearing, the California Court of Appeals reiterated that California’s dividends-received deduction (DRD) statute, which was held unconstitutional in Farmer Bros. Co. v. FTB,¹⁷ was unconstitutional in its entirety and could not be severed or reformed.¹⁸ Thus, the taxpayer was not allowed any DRD for 1999 and subsequent years.

Idaho

The State Tax Commission (STC) ruled that with respect to Sec. 965 repatriation dividends, the taxpayer could exclude the 85% DRD deducted federally and then deduct another 80% of the remaining 15% not deducted federally (effectively allowing a 97% DRD for state tax purposes).¹⁹

Illinois

Legislation passed in 2007 disallowed the DPD for captive REITs for tax years beginning after 2008. SB 1975, Laws 2009, amends the definition of a captive REIT to specify that, among other requirements, it must be owned or controlled directly, indirectly, or constructively by a single corporation (previously, a single person) that has more than 50% of the voting power or value of the REIT’s beneficial interest or shares at any time during the last half of the tax year.

North Dakota

For tax years beginning after 2008, SB 2089, Laws 2009, requires the addback of the federal DPD by defined captive REITs.

Oklahoma

Effective January 1, 2010, SB 916, Laws 2009, disallows the DPD for defined captive REITs.²⁰

Virginia

For the 2009 and 2010 tax years, HB 2504, Laws 2009, disallows one-half of the DPD for captive REITS that derive more than 25% of their income from rents. After 2010, the entire DPD is disallowed.

West Virginia

For tax years beginning after 2008, SB 540, Laws 2009, amends provisions related to the required disallowance of the DPD in calculating the net income for captive REITs and certain real estate investment companies (RICs). While a similar law on captive REITs was enacted in 2008,²¹ this new law is patterned after the related MTC model statute and its applicable definitions.

NOLs

California

AB 11, Laws 2009, provides that IRS Notice 2008-83, which addresses the treatment of a change in ownership of a bank, is not applicable for California tax purposes at any time.

Idaho

The STC amended the corporate NOL rule to remove the provisions that previously incorporated Secs. 381 and 382 because these NOL limitations are not specifically addressed in the Idaho statutes.²²

Illinois

The DOR explained that Illinois income tax law does not incorporate the limitations on the use of net loss carryover deductions of an acquired corporation contained in Sec. 381(c).²³

In another development, the DOR amended Rule 100.2310 to incorporate amendments under a revised law (Public Act 95-0233) requiring taxpayers to reduce their federal NOL carryovers by the amount of any discharge of indebtedness income excluded from taxation because the taxpayer is insolvent or in bankruptcy to make a corresponding reduction in any Illinois net loss.

Iowa

SF 483, Laws 2009, eliminates the prior two-year NOL carryback provision for tax years beginning after 2008.

Maine

No NOL deductions are allowed for tax years beginning in 2009, 2010, and 2011.²⁴ A taxpayer generally can claim the disallowed deductions after 2011 as long as the taxpayer takes them during the federal NOL carryforward period plus the number of years the NOL deduction was disallowed.

Massachusetts

HB 4129, Laws 2009, decouples from Sec. 382(n) regarding the treatment of a change in ownership of a bank or other corporation and IRS Notice 2008-83. Thus, that notice and any such codification, supplement, or implementation has no force or effect in any tax year for Massachusetts tax purposes.

Pennsylvania

HB 1531, Laws 2009, increases the NOL deduction limitation. For 2009, the deduction is limited to the greater of 15% (previously 12.5%) of taxable income or $3 million; after 2009, the deduction is limited to the greater of 20% of taxable income or $3 million.

Virginia

The Department of Taxation (DOT) ruled that the federal separate return loss year (SRLY) limitation does not apply where a corporate parent and its affiliate group that initially did not file income tax returns in Virginia because they lacked nexus subsequently acquired 100% of the stock of a company that had Virginia nexus.²⁵ In addition, NOLs generated by the parent during the acquisition year and in prior years would not be subject to these federal SRLY limitations in calculating the amounts available for carryforward to Virginia consolidated returns.

Intercompany Expenses

District of Columbia

Effective for tax years beginning after 2008, emergency legislation would require corporate taxpayers to add back certain defined intangible and interest expenses paid to related parties in computing their state taxable income unless one of the allowable exceptions applies.²⁶

Georgia

For tax years beginning after 2009, HB 379, Laws 2009, requires adding back all expenses and costs directly or indirectly paid, accrued, or incurred to captive REITs unless certain specified exceptions are met, and provides that failure to make this “addback” adjustment may result in an additional 10% penalty. The DOR adopted new Rule 560-7-3-.04, relating to the disallowance of expenses paid to certain captive REITs, and new Rule 560-7-3-.05, providing guidance on the administration and implementation of the state’s general related-party expense add-back statute.

Massachusetts

The Massachusetts Appeals Court denied royalty and interest deductions for payments made to related intangible holding companies because the court deemed that the trademark transfer and license-back arrangement was a sham transaction, lacking business purpose and economic substance, and that the associated intercompany loans were not bona fide debt.²⁷

In another decision, the Massachusetts Appellate Tax Board (ATB) similarly held that an out-of-state royalty company that licensed trademarks/intangibles to its parent retailer lacked economic substance as a separate business entity and lacked business purpose beyond the creation of tax benefits.²⁸ Accordingly, the ATB reasoned that the department properly adjusted the parent company’s income by: (1) disallowing deductions for royalties paid by the parent to the royalty subsidiary for use of certain marks; (2) reattributing to the parent all the royalty and interest income earned by the royalty subsidiary; (3) eliminating interest income received by the parent from the royalty subsidiary on a $100 million intercompany loan; (4) eliminating the dividend income received by the parent from the royalty subsidiary (and eliminating the accompanying dividends-received deduction); and (5) allowing deductions to the parent for amortization/other expenses related to the purchase of the marks.

In another case involving a trademark subsidiary, the ATB held that the department appropriately adjusted the income of a parent company by reallocating back the royalty income that was received by a Delaware holding subsidiary for its licensing of certain trademarks because the transfer of the license agreements and purported transfer of the company’s logos to the subsidiary constituted sham transactions that resulted in an improper assignment of income.²⁹ However, the ATB disallowed certain adjustments made by the department as improper because the facts showed that the parent had received fair compensation for the management, marketing, and accounting administrative services that it had provided to various subsidiaries. The ATB also ruled that although the department could potentially make adjustments to a subsidiary’s apportionment calculation following the department’s approval of an alternative apportionment formula, the subsidiary in this case had properly applied the alternative apportionment methodology, and the department’s subse-quent adjustments to the numerator of the subsidiary’s sales factor were improper.

Michigan

SB 219, Laws 2009, amends the intercompany disallowance statute to exclude from addback royalty and interest payments to a person organized under the laws of a foreign nation having a comprehensive tax treaty with the United States, provided that the taxpayer also shows that the transaction has a nontax business purpose other than the avoidance of tax and is conducted with arm’s-length pricing and rates.

Minnesota

In a case involving transactions between a bank and two of its out-of-state Delaware subsidiaries, the Minnesota Tax Court held that their intercompany transactions lacked economic substance and had the sole business purpose of avoiding payment of state income taxes. Accordingly, the court ruled that the transactions between the bank and the two subsidiaries were properly disregarded for state income tax purposes.³⁰

New Jersey

The New Jersey Tax Court held that to prevent distortion and reflect the fair profits on certain intercompany transactions, the New Jersey Division of Taxation properly imputed interest income on: (1) the cash management system used by an affiliated group, as the system involved loans from the subsidiaries to their parent; and (2) amounts constituting unpaid business service fees from the parent to a subsidiary. However, the court held that the Division of Taxation had not correctly imputed interest on amounts carried on the books of one subsidiary that, in actuality, represented liabilities of other subsidiaries (warehoused liabilities).³¹

Oklahoma

As mentioned above, SB 916, Laws 2009, disallows the DPD for defined captive REITs effective January 1, 2010. If a captive REIT is required to add back its DPD, Oklahoma taxpayers that pay rent and/or interest to the captive REIT and that are otherwise required to add back these expenses in computing their state taxable income will no longer be required to make this adjustment. In a related development, the Tax Commission adopted Rule 710:50-17-52, which explains the law enacted during 2008 that disallows interest and rent payments made to captive REITs.

Oregon

For tax years beginning after 2009, SB 181, Laws 2009, requires the addback of certain intangible expenses paid to related members. In a similar development, the DOR adopted amendments to OAR 150-314.295 to clarify the circumstances in which a deduction for intercompany transactions will be disallowed.

Tennessee

SB 2318, Laws 2009, (1) provides that effective July 1, 2009, any amount in excess of reasonable rent paid to an affiliate for the rental, leasing, or comparable use of the affiliate’s industrial and commercial property must be added back, regardless of whether that affiliate is subject to the state corporate excise tax; (2) for purposes of disclosing dividends a financial institution receives from captive REITs, redefines publicly traded REIT to clarify that the entity must be traded on a regulated national securities exchange of the United States or of a foreign country; and (3) rewrites the penalty provision to impose a penalty of the greater of $10,000 or 50% of any adjustment to the initially filed return if an intercompany intangible expense deduction or a captive REIT dividend received deduction is not disclosed on the return.

Virginia

The DOT repeatedly ruled that the exception to the state’s related-member royalty/intangible expense addback is limited to the amount of the affiliates’ royalty/intangible income apportioned to each state in which the affiliates paid income tax.³²

West Virginia

Patterned after the MTC’s model intercompany expense addback statute, for tax years beginning after 2008, SB 540, Laws 2009, requires corporations to add back certain intangible and interest expenses paid to related parties in computing their state taxable income.

Wisconsin

During 2008, Wisconsin enacted related entity addback provisions pertaining to interest and rental expenses for tax years beginning after 2007. Wisconsin Act 2, enacted during 2009, expands this addback requirement to include amounts paid to a related entity for intangible expenses and management fees for tax years beginning after 2008.

Conformity to Federal Legislation

Federal legislation enacted during 2009 made a number of changes to the federal tax base (which is the starting point for most state corporate income tax bases), including extending bonus depreciation and the enhanced small business expensing provisions under Sec. 179 for one year, allowing the deferral of recognition of income from discharge of certain business indebtedness under Sec. 108(i), and expanding the NOL carryback period from two to five years.³³

While many states generally conform to the federal income tax laws, states have increasingly enacted specific decoupling provisions such as those involving federal bonus depreciation and Sec. 179 expensing and NOL carryover periods. During 2009, a number of states enacted legislation that decoupledfromthenewprovisionsallowing deferral of income arising from certain discharged business indebtedness under Sec. 108(i).³⁴ Identifying all the states’ de-coupling developments during 2009 is beyond the scope of this article; readers are encouraged to review state tax law changes as summarized in the states’ tax return instructions and on the states’ websites.

Other Modifications

California

In Legal Ruling 2009-01 (1/26/09), the Franchise Tax Board (FTB) ruled that the excess inclusion income that a noneconomic residual interest holder in a real estate mortgage investment conduit filing as a California taxpayer member of a unitary combined reporting group must take into account should be determined by reference to its California apportionment factor percentage. Because state law conforms to Sec. 172 NOL rules, the excess inclusion income will not be included in gross income or taxable income for purposes of calculating its NOL carryforward for California purposes.

In an unrelated notice, the FTB explains that a taxpayer’s characterization of the Texas margin tax as a gross receipts tax, gross income tax, or net income tax is based on its own specific factual circumstances and provides a chart summarizing whether the Texas margin tax is deductible based on the taxpayer’s characterization of the tax.³⁵

Colorado

For tax years beginning after 2009, HB 1366, Laws 2009, limits the Colorado-source capital gains subtraction to the first $100,000 of gains on assets held for five years or more for certain Colorado real or tangible personal property purchased between May 9, 1994, and June 4, 2009, and sold after January 1, 2010, and in-state or out-of-state tangible personal property purchased on or after June 4, 2009.

Connecticut

For tax years beginning after 2008, HB 6802, Laws 2009, decouples from the federal qualified domestic production activities deduction under Sec. 199.

Florida

SB 1112, Laws 2009, provides a subtraction modification or basis adjustment for the federal bonus depreciation and Sec. 179 expense required to be added back in computing state taxable income. Florida SB 2504, Laws 2009, extends Florida’s decoupling from federal bonus depreciation and certain Sec. 179 expense provisions to property placed in service during calendar year 2009.

Massachusetts

The DOR explained the deduction allowed under last year’s law change adopting combined reporting to alleviate, for certain publicly held companies, the potential financial statement impact resulting from requiring unitary groups to file on a combined basis.³⁶

South Carolina

The DOR provided guidance regarding the deductibility of business taxes imposed by other states and whether certain taxes from other states are allowed as a deduction from taxable income.³⁷ Among the listed deductible taxes were Michigan’s business tax (only the modified gross receipts tax component), Ohio’s commercial activity tax, and Washington’s business and occupation tax.

Wisconsin

For tax years beginning after 2008, AB 75, Laws 2009, decouples from the federal qualified domestic production activities deduction under Sec. 199.

Allocable/Apportionable Income

California

The State Board of Equalization held that the gain from the sale of subsidiary stock constituted apportionable business income under the functional test because the parent’s ultimate control and use of the subsidiary stock via an intermediary subsidiary constituted an integral part of the parent’s regular business operations.³⁸

Montana

The Montana Supreme Court held that state law recognizes both transactional and functional tests in classifying income as apportionable business income. The court referred the case back to the State Tax Appeals Board for resolution of all issues.³⁹

New Jersey

The New Jersey Superior Court, Appellate Division, affirmed the New Jersey Tax Court’s ruling that gains from a Sec. 338(h)(10) election were nonoperational income allocable outside the state because the assets were deemed sold in a complete liquidation that did not occur in the regular course of the company’s business.⁴⁰

Tennessee

A Tennessee Court of Appeals affirmed a trial court’s decision that because a subsidiary and its parent corporation were not part of a unitary business relationship, the DOR could not constitutionally impose tax on a capital gain realized by the subsidiary as a result of its parent corporation’s redemption of outstanding stock held by the subsidiary.⁴¹

In another case, a Tennessee Court of Appeals affirmed that a corporation was not subject to tax on interest income earned from its investment in treasury securities because it constituted allocable nonbusiness investment income rather than operational business income.⁴²

Sec. 338(h)(10) Transactions

Georgia

Reversing an earlier trial court decision, a Georgia Court of Appeals held that a federal S corporation that was taxed as a C corporation for Georgia purposes had to recognize the Sec. 338(h)(10) gain for state income tax purposes.⁴³

South Carolina

In SC Rev. Rul. 09-4,⁴⁴ the DOR provides guidance on South Carolina income tax, sales tax, deed recording fee, and personal property tax consequences of a Sec. 338(h)(10) election. The target subsidiary’s gain from the deemed asset sale generally constitutes apportionable business income; however, the gains and losses from the sale of real property less all related expenses are treated as allocable income, allocable to the state in which the real property is located except to the extent that the gain represents the return of amounts deducted as depreciation. Net gains from the sale of tangible and intangible personal property used in the business (other than inventory) from the deemed sale are included in the target subsidiary’s sales factor.

Texas

The Texas comptroller provided guidance on apportioning income to Texas under the margin tax when a Sec. 338(h)(10) election has been made.⁴⁵ Essentially, the gain from the deemed asset sale will be included in the computation of total revenue to the extent that the amount is reported for federal income tax purposes. The amount of Texas gross receipts from the deemed sale of assets is based on the type of assets that were deemed to have been sold, and the gain on the deemed sale of the assets will be included in Texas gross receipts if the gain can be sourced to Texas.

This article contains general information only and Deloitte is not, by means of this article, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. This article is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional adviser. Deloitte shall not be responsible for any loss sustained by any person who relies on this article.

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EditorNotes

Karen Boucher is a director with Deloitte Tax LLP in Milwaukee, WI. Shona Ponda is a senior manager with Deloitte Tax LLP in Atlanta, GA. For more information about this article, contact Ms. Boucher at kboucher@deloitte.com.

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Notes

¹ CO Prop. Reg. 39-22-301.1.

² CO DOR PLR-08-1 (11/23/08).

³ Revenue Cabinet v. Asworth Corp., No. 2007-CA-002549-MR (Ky. Ct. App. 11/20/09).

⁴ Capital One Bank v. Commissioner of Rev., 899 N.E.2d 76 (Mass. 2009), cert. denied, S. Ct. Dkt. 08-1169 (U.S. 6/22/09).

⁵ Quill Corp. v. North Dakota Tax Comm’r, 504 U.S. 298 (1992).

⁶ Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977).

⁷ Geoffrey, Inc. v. Commissioner of Revenue, 899 N.E.2d 87 (Mass. 2009), cert. denied, S. Ct. Dkt. 08-1207 (U.S. 6/22/09).

⁸ MBT Draft Proposed Rule 208.1.

⁹ MO DOR Letter Ruling LR 5668 (5/22/09).

¹⁰ NE DOR Rev. Rul. 24-08-1 (4/9/08).

¹¹ BIS LP Inc. v. Director, Div. of Tax’n, 25 N.J. Tax 88 (N.J. Tax Ct. 7/30/09).

¹² AccuZIP, Inc. v. Director, Div. of Tax’n, No. 005744-2003 (N.J. Tax Ct. 8/13/09).

¹³ Lanco, Inc. v. Director, Div. of Tax’n, 908 A.2d 176 (N.J. 2006), cert. denied, S. Ct. Dkt. 06-1236 (U.S. 6/18/07).

¹⁴ Praxair Technology, Inc. v. Director, Div. of Tax’n, No. A-91/92-08 (N.J. 12/15/09).

¹⁵ In re Shell Gas Gathering Corp. #2, DTA No. 821569 (N.Y. Div. of Tax App., ALJ Div. 6/11/09).

¹⁶ NY A8867, Laws 2009.

¹⁷ Farmer Bros. Co. v. California Franchise Tax Bd., 108 Cal. App. 4th 976 (2003), cert. denied, 540 U.S. 1178 (2004).

¹⁸ Abbott Laboratories v. California Franchise Tax Bd., 175 Cal. App. 4th 1346 (2009); review denied (Cal. 10/28/09).

¹⁹ ID State Tax Comm’n Ruling No. 21032 (3/11/09).

²⁰ See “Intercompany Expenses” on p. 190 for additional details about this new law.

²¹ WV HB 4420, Laws 2008.

²² ID Admin. Rule 35.01.01.200.

²³ IL DOR General Information Letter IT 09-0032-GIL (9/23/09).

²⁴ ME LD 353, Laws 2009.

²⁵ VA Pub. Doc. Rul. No. 09-126 (8/7/09).

²⁶ Effective October 15, 2009, and expiring on January 13, 2010, a second round of emergency legislation (DC B18-443 (Act 18-207)) repeals the first round of emergency legislation that was enacted earlier in 2009 (DC B18-409 (Act 18-187)). Note that this second round of emergency legislation must still be made permanent by the District of Columbia Council and then requires subsequent approval by the mayor and the expiration of a 30-day waiting period during which the U.S. Congress may take action on the legislation.

²⁷ The TJX Cos. v. Commissioner of Rev., No. 07-P-1570 (Mass. App. Ct. 4/3/09); review denied, 908 N.E.2d 388 (Mass. 6/3/09).

²⁸ The Talbots, Inc. v. Commissioner of Rev., No. C266698 (Mass. App. Tax Bd. 9/29/09).

²⁹ IDC Research, Inc. v. Commissioner of Rev., No. C267868 (Mass. App. Tax Bd. 4/17/09).

³⁰ HMN Financial, Inc. v. Commissioner, No. 7911-R (Minn. Tax Ct. 5/27/09).

³¹ United Parcel Service Gen. Servs. Co. v. Director, Div. of Tax’n, Nos. 0078452004, 007879-2004, and 007889-2004 (N.J. Tax Ct. 6/5/09). The court also found that the director correctly: (1) calculated the nondeductible portion of interest imputed on loans from one subsidiary to the parent; (2) applied a weighting analysis for purposes of allocating to New Jersey revenue of subsidiaries taxed as airlines; (3) held that revenues generated by data processing services performed in New Jersey but utilized by the various subsidiaries both inside and outside New Jersey, and revenues of a subsidiary having all its property and equipment in New Jersey, with no regular place of business outside New Jersey, were all allocable to New Jersey; and (4) held that late payment penalties applied in some instances but that amnesty penalties did not apply because the subsidiaries had no knowledge of additional assessments during the amnesty period and could not have obtained such knowledge by reasonable inquiry.

³² VA Pub. Doc. Nos. 09-49 (4/27/09), 09-68 (5/13/09), 09-96 (6/11/09), and 09-115 (7/31/09).

³³ The American Recovery and Reinvestment Act of 2009, P.L. 111-5, and the Worker, Homeownership, and Business Assistance Act of 2009, P.L. 111-92.

³⁴ Some examples include CT SB 2001, Laws 2009; FL SB 2504, Laws 2009; IN HB 1001, Laws 2009; ME LD 353, Laws 2009; MD HB 101, Laws 2009; MA HB 4129, Laws 2009; MN HF 2198, Laws 2009; NJ AB 4105, Laws 2009; NC SB 202, Laws 2009; OR HB 2078, Laws 2009; RI HB 5983Aaa, Laws 2009; and (pending at the time of this writing) DC B18-0203 (Act 18-255).

³⁵ CA FTB Notice No. 2009-06 (7/20/09).

³⁶ MA DOR Technical Information Release 09-8 (5/28/09).

³⁷ SC DOR Revenue Ruling No. 09-10 (7/17/09).

³⁸ Matter of Crane Co. et al., Case No. 357027 (Cal. State Bd. of Eq. 6/30/09).

³⁹ Gannett Satellite Information Network, Inc. v. Dep’t, 201 P.3d 132 (Mont. 1/13/09).

⁴⁰ McKesson Water Prods. Co. v. Director, Div. of Tax’n, 974 A.2d 443 (App. Div. 7/16/09); review denied, 983 A.2d 1113 (N.J. 11/20/09).

⁴¹ Blue Bell Creameries LP v. Commissioner, No. M2009-00255-COA-R3-CV (Tenn. Ct. App. 9/29/09).

⁴² Siegel-Robert Inc. v. Commissioner, No. M2008-02228-COA-R3-CV (Tenn. Ct. App. 10/28/09).

⁴³ Department of Rev. v. Trawick Constr. Co., 674 S.E.2d 350 (Ga. Ct. App. 2/23/09).

⁴⁴ SC Rev. Rul. 09-4 (3/31/09).

⁴⁵ TX Policy Letter Ruling No. 200806202L (6/1/08).