The federal check-the-box entity classification rules allow certain entities to change their default classification. Unsurprisingly, not every state conforms to the federal check-the-box (CTB) election for state tax purposes. There are numerous implications resulting from state nonconformity to the CTB election rules. In this installment of A Pinch of SALT in Tax Notes State, Eversheds Sutherland attorneys Liz Cha, Maria Todorova and Chelsea Marmor review recent cases that highlight some of these implications.

Read the full article here.

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: Which state legislature recently approved legislation that would allow the state’s revenue and justice departments to share taxpayer information under certain circumstances?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

On December 5, Eversheds Sutherland is a proud sponsor of the TEI Silicon Valley Chapter SALT day, a comprehensive SALT update covering a wide range of topics including the latest legislation, litigation and administrative developments.

Speakers and topics include:

  • Michele Borens, Jeff Friedman, Eric Tresh – 2023 Litigation and Legislative Roundup
  • Michele Borens, John Ormonde – San Francisco’s Troubled Tax System: Where We Are and Where We’re Going
  • Jeff Friedman, Eric Tresh – Transfer Pricing and Intercompany Transactions
  • Jeff Friedman, Tim Gustafson – Income Tax is Cooler
  • Michele Borens, Eric Tresh – No, Sales Tax Is Cooler

In addition, Eversheds Sutherland Partners Michele Borens, Jeff Friedman and Ted Friedman will present at COST’s Pacific Northwest Regional State Tax Seminar on December 6. The seminar will provide an update on significant state tax issues for California, the Pacific Northwest states and certain other significant states around the country.

Speakers and topics include:

  • Michele Borens, Jeff Friedman, Ted Friedman – Discussion of State Tax Cases, Issues & Policy Matters to Watch
  • Michele Borens, Jeff Friedman, Ted Friedman – Transfer Pricing and Intercompany Transactions

Finally, on December 6, Eversheds Sutherland Partner Todd Betor will present during the TEI New York Chapter’s 60th Annual Tax Symposium. During the full-day program, Todd’s panel will review where we are for SALT in 2023 and where we’re going in 2024. For more information and to register, click here.

View and learn more about past and upcoming events and presentations for the SALT team.

In this episode of the SALT Shaker Podcast, Federal Tax Partner Mary Monahan joins Associate Jeremy Gove for a discussion of Moore v. United States. 

Ahead of the oral argument scheduled for December 5, Mary provides Jeremy with a federal tax perspective about the case, including covering the case’s background, the tax constitutionality issue before the Supreme Court, the legal arguments presented and more. 

Their discussion concludes with a timely overrated/underrated question, likely debated by many last week – what are your thoughts on Thanksgiving turkey?

You can read the Eversheds Sutherland Tax team’s Legal Alert about Moore at this link.

Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

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On July 13, 2023, the Pennsylvania Board of Finance and Revenue (“BF&R”) denied a pharmaceuticals developer’s corporate net income tax refund claim based on adjustments to its apportionment formula and taxable income. The taxpayer filed, and the Pennsylvania Department of Revenue denied, a refund claim for the 2019 tax year on three grounds: (1) the reduction of the sales factor numerator to the amount of receipts from product consumed in Pennsylvania (i.e., excluding sales to distributors in Pennsylvania that were subsequently shipped outside of the state); (2) the exclusion from taxable income and its sales factor numerator of its royalties, management fees, and research and development cost share relating to activities outside of the United States; and (3) the use of a three-factor formula – rather than single sales factor – because it was a manufacturer relying extensively on capital and labor.

The BF&R denied all three of the bases for the taxpayer’s refund claim. First, the BF&R found that products delivered to distributors in Pennsylvania were correctly included in the sales factor numerator because the taxpayer had sold its goods to Pennsylvania distributor customers and delivered the goods in Pennsylvania. The BF&R refused to look through to the distributors’ customers’ sales to calculate the taxpayer’s sales factor. Second, the BF&R denied the taxpayer’s “request for multiform income treatment” because of the “lack of sufficient evidence proving entitlement to such treatment.” Third, the BF&R denied the taxpayer’s request for special apportionment because it had “not shown that the standard apportionment methods did not fairly represent the extent of its business activity within Pennsylvania.”

In re Gilead Sciences, Inc., Dec. No. 2224811 (Pa. Bd. Fin. & Rev. Jul. 13, 2023).

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: The Maine Supreme Judicial Court recently held that an owner of property valued at more than $1 million can appeal an abatement denial to the local county commissioners or to which state administrative body?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

On Wednesday, December 6, Eversheds Sutherland Partner Todd Betor will present during the TEI New York Chapter’s 60th Annual Tax Symposium. During the full-day program, Todd’s panel will review where we are for SALT in 2023 and where we’re going in 2024. For more information and to register, click here.

View and learn more about past and upcoming events and presentations for the SALT team.

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: Which state’s Department of Revenue recently issued guidance regarding the recently-enacted 4% surtax on individual income that exceeds $1 million?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

The sales taxation of software has long been controversial. When sales of software became commonplace in the 1970s and 1980s, it was largely available and commercially distributed on a tangible medium. Today, software is provided in ways that do not constitute the transfer of title or possession of tangible personal property, such as the Software-as-a-service (SaaS) distribution model.

While only a few states explicitly tax SaaS or digital automated services as enumerated services, tax administrators may still attempt to tax them.

In this installment of A Pinch of SALT in Tax Notes State, Eversheds Sutherland attorneys Michele Borens, Cyavash Ahmadi, and Meriem El-Khattabi explore recent administrative actions and judicial, tax tribunal, and legislative responses to the evolving provision of software. 

Read the full article here.

The Maine Supreme Judicial Court held that a prescription drug company’s income should be apportioned based on the location where its prescription drugs are received, rather than the headquarters locations of the health plans or employers paying for the drugs.

The drug company sought income tax apportionment based on a “market client basis,” arguing that its services were primarily received by its clients such as health insurers and employers. The court held that the clients’ “members” or insureds were the primary recipients of the drug company’s services, and therefore the company’s income must be apportioned on a “market member basis” to the location where the members received their prescription drugs. “Market client basis” sourcing was not appropriate because the company’s client agreements and its 10-k filings established that although the company contracted with health plans and employers, the ultimate recipients of its services were the individuals receiving the drugs and covered health services.

Express Scripts Inc. v. State Tax Assessor, No. BCD-22-331, (Me. Nov. 7, 2023).

A North Carolina Administrative Law Judge held that the Department of Revenue did not have the authority to adjust the taxpayer’s net income because the Department failed to timely issue a statutorily required written statement.

The Department believed the taxpayer had not accurately reported income properly attributable to North Carolina due to intercompany transactions that either lacked economic substance or were not at fair market value and issued a proposed assessment pursuant to N.C. Gen. Stat. § 105-130.5A(k). Although the Department is generally permitted to make such adjustments to a taxpayer’s net income, certain statutory requirements must be met. One such requirement is that the Department “shall” provide the taxpayer a written statement within 90 days of issuing the proposed assessment, detailing the support for the Department’s findings and its proposed method for computation of net income. 

Here, it took the Department nearly five years after issuance of the notice of proposed assessment to provide the required written statement. The ALJ analyzed the language within the 90-day deadline, ruling that the use of the word “shall” in reference to providing the written statement and the imposition of a deadline following the phrase “no later than” indicated the requirement was mandatory, not directory. Because the Department did not comply with a mandatory requirement, the Department lacked authority to adjust the taxpayer’s income under this code section.

Ingram Micro, Inc. v. N.C. Dep’t of Revenue, 22 REV 04478 (N.C. Office Admin. Hearings Oct. 27, 2023).

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: The Ohio Board of Tax Appeals recently held that receipts from healthcare services should be sourced where the patient is located, for purposes of which state level tax?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

The Multistate Tax Commission (MTC)’s 2023 Fall Committee Meetings are off to an exciting start, considering the announcement that Philadelphia will be joining the MTC’s Joint Audit Program. The District of Columbia and Philadelphia are the Program’s only non-state members.

The MTC’s Joint Audit Program provides audit services to the participating taxing authorities. The Program’s audit staff performs audits and provides proposed findings—often assessments—to jurisdictions that participate in each audit. Over the last 5 years, the MTC’s Joint Audit Program has completed the equivalent of 1,647 audits.

Read the full Legal Alert here.

Eversheds Sutherland is a proud sponsor of the 2023 New England State and Local Tax Forum, which provides an annual update on significant state and local tax developments from across the nation with a particular focus on New England.

On Thursday, SALT Partner Liz Cha will discuss the future of cost of performance sourcing, discussing cases in which the taxing authorities have been successful and cases in which the courts have pushed back, as well as what the current landscape looks like after the latest wave of litigation and where we may be headed next.

View and learn more about past and upcoming events and presentations for the SALT team.

In this article originally published by CalCPA in the September issue of California CPA, Eversheds Sutherland Senior Counsel Eric Coffill provides some considerations in deciding whether to grant or deny an auditor’s request for a statute waiver in a pending audit, a common issue arising in FTB audits.

Read the full article here.

Please join us for the NYU School of Professional Studies’ 42nd Institute on State and Local Taxation. This important conference, scheduled for December 11-12, 2023 in New York City, will provide insightful updates, practical advice, and in-depth analysis of the latest developments and current issues in state and local taxation. Check out this year’s exciting agenda here.

Sessions include:

  • Overview and Preview of Federal Constitutional Issues – A spirited review of the most significant constitutional cases
  • Rest Insured: The Pros and Cons of Insuring State Tax Positions and Controversies – What exactly is tax insurance, and what are the considerations to obtaining a policy? Considerations may vary between the insured (taxpayer) and the insurer. Hear about how insurance companies assess the insured’s return position/transaction/litigation position
  • Big Gain Hunting – A discussion of recent decisions confronting the issues that arise from transactions that produce big gains (and losses)
  • And more!

Eversheds Sutherland is a proud sponsor of the Institute on State and Local Taxation. We hope to see you there.

Register now!

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: Which state Department of Revenue recently found that a resident partnership was liable for additional composite tax on guaranteed payments made to nonresident partners?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

On November 7, SALT Partner Todd Betor will present about current uses and trends of tax liability insurance for members of the Atlanta Tax Forum.

In addition, on November 10, Todd and fellow SALT Partner Ted Friedman will present during the 2023 Bank & Capital Markets Tax Institute, which provides a current state of the industry for bank tax professionals. Todd and Ted’s session will cover recent SALT developments, including judicial decisions, administrative guidance, legislative changes, and other matters relevant to the banking and capital markets industry. In addition, the panel will focus on corporate income tax, but will also cover recent sales/use and other state and local tax issues.

View and learn more about past and upcoming events and presentations.

Happy Halloween from the Eversheds Sutherland SALT team! Check out some of our festive and creative costumes, for humans and dogs alike!

Share your costumes (or impressive pumpkin carvings!) with us: SALTonline@eversheds-sutherland.com!

1, 2: Associate Cat Baron and her family, which includes former SALT Pet of the Month, Winnie

3: Associate Madison Ball’s dog, Agnes

4-6: Associate John Ormonde and his family, including their impressive pumpkin carvings

7: Legal secretary Janet Curry’s grandchildren

8: Associate Sam Trencs and her family

Paws and relax as we introduce our November SALT Pets of the Month, Pebbles and Lucy!

The two adorable mutts found their furever home with Kathryn Kelly, State Tax Manager at IHG Hotels and Resorts, after being adopted from BarkVille Dog Rescue and Atlanta Lab Rescue. In December of 2021, 3-year-old English Bulldog and Australian Cattle mix Pebbles was only meant to be fostered through the holiday season but quickly became a “foster fail” after unleashing the love. In September of this year, 2-year-old German Shepherd Lab mix Lucy joined the family as well after winning Kathryn over at an adoption event with her irresistible ears.

These two enjoy piling onto the couch to watch a Braves game after being dog-tired from a long walk and wolfing down anything coated in peanut butter. Pebbles loves to treat herself to rolling in the grass, especially when the temperature drops. Funnily enough, Lucy instantly bonded with Kathryn’s cat Fred, who she is absolutely mutts about!

The journey of rescuing Pebbles and Lucy would not have been possible without BarkVille Dog Rescue and Atlanta Lab Rescue and the work they do within the Atlanta community! Kathryn encourages everyone to find ways to give back to their local rescue shelters to help save one paw at a time.

We are elated to welcome these two pups to our SALT Pet of the Month family!

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: Which state’s Administrative Law Court upheld the Department of Revenue requirement that the taxpayer and its affiliates file a combined return because separate-entity filings resulted in distortion?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

What should federal income tax advisors know about SALT issues? On October 30, Eversheds Sutherland SALT Partner Jonathan Feldman will revisit Wayfair and explore pass-through entity taxes as a panelist during the 58th Annual Southern Federal Tax Institute.

On November 2, Eversheds Sutherland Associate John Ormonde will serve as a panelist during the 2023 Annual Meeting of the California Tax Bar and Tax Policy Conference. His session will focus on the interplay between the California personal income tax law and the tax law for entities in the context of sourcing income.

View and learn more about past and upcoming events and presentations.

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: The Massachusetts Department of Revenue recently announced a four percent surtax on taxpayers with taxable income over a certain threshold amount. What is the amount?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

In an article for Bloomberg Tax, Eversheds Sutherland attorneys Liz Cha and Chelsea Marmor summarize recent tax developments in New York, including proposed corporate tax reform regulations and two court opinions on income sourcing, Matter of Techar and Matter of Jefferies Group LLC & Subs.

Read the full article here.

This week, Eversheds Sutherland is proud to support Tax Executives Institute’s 2023 Annual Conference—75th Anniversary Celebration. SALT Partners Todd Betor, Ted Friedman and Tim Gustafson will contribute to the comprehensive program that will include nearly 40 sessions focused on US federal, international, and state and local tax, as well as Canadian tax, financial reporting, and corporate tax management issues.

Presenters and topics include:

  • Tim Gustafson – Recent Developments in State Income Tax
  • Todd Betor – Accounting for State and Local Taxes: The Basics Every In-House Tax Professional Should Know
  • Ted Friedman – National SALT Litigation Update

In addition, Eversheds Sutherland is a proud sponsor of the 30th Annual Paul J. Hartman SALT Forum, held October 23 – 25 in Nashville, TN. The forum will discuss current developments as well as the practical solutions and planning opportunities in structuring and reporting state and local tax transactions.

Speakers and topics include:

  • Jeremy Gove – “Do the Due:” What To Do With Due Process
  • Maria Todorova – Market-Based Sourcing – Looking Through the Looking Glass
  • Jeff Friedman – 86-272 Sourcing and Nexus

Finally, on October 24, SALT Partner Dan Schlueter will cover current property tax developments and litigation during the 2023 Broadband Tax Institute (BTI) Annual Conference, held in Scottsdale, AZ.

View and learn more about past and upcoming events and presentations.

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: Which state’s commissioner recently determined that a data center operator was entitled to a sales and use tax refund on its equipment purchases?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

The Ohio Board of Tax Appeals denied an out-of-state healthcare organization’s apportionment of the Commercial Activity Tax related to healthcare services.

The taxpayer sought to apportion its gross receipts related to laboratory services and healthcare provider services based on where the taxpayer’s costs were incurred. The Board rejected the taxpayer’s position and found that the lab work and healthcare provider services are sourced based on where the benefit of these services is received. Citing to Defender Security Co. v. McClain, 162 Ohio St.3d 473 (2020), in which the Ohio Supreme Court held that under Ohio’s sourcing rule, the “paramount” consideration when determining what proportion of the benefit is attributed to Ohio is the physical location where the purchaser actually used and received the benefit of what was purchased. The Board found that while some of the services were conducted outside of Florida, the benefit of the services is received where the Ohio patients are located. 

The Board also noted that even if the laboratory testing and administrative services could be sitused outside of Ohio, the taxpayer failed to support its apportionment method with sufficient documentation. 

Total Renal Care Inc. v. Harris, No. 2019-848 (Ohio Bd. Tax App. July 24, 2023) (unpublished).

The taxpayer, a designer, marketer, and wholesaler of apparel, footwear, jeans, and other fashion accessories, shipped products to Ohio-based distribution centers of major retailers and paid the commercial activity tax for all items shipped to the distribution centers, even those that were ultimately received by customers outside of Ohio. The taxpayer applied for a refund for gross receipts realized from products that were sent to Ohio distribution centers but were ultimately shipped to locations outside of Ohio. The taxpayer provided labels for most of the retailers it shipped to that showed where the products would ultimately be delivered, and the Department of Taxation accepted those as sufficient evidence to situs those sales outside of Ohio. However, for two retailers (DSW and Dressbarn), the labels did not indicate where the products would ultimately be delivered, so the Department sitused those sales to Ohio.

The taxpayer appealed the refund denial to the Ohio Board of Tax Appeals. At the hearing the taxpayer provided evidence in the form of a report showing the distribution of each DSW product throughout all of its stores. This report was based on a data sample collected from DSW’s website over a 3-month period using custom software. The Department argued that the Board should only consider information the taxpayer had at the time it sold the products to DSW and Dressbarn and, that as far as the taxpayer knew at the time, the products were delivered to purchasers in Ohio.

While the Board rejected the Department’s argument that the taxpayer must have contemporaneous knowledge of the ultimate destination of the product at the time it is transported, the Board also determined that the taxpayer failed to meet its burden in proving that the Department’s findings (i.e., that the DSW and Dressbarn products should be sitused to Ohio) were not valid. The Board stated that the representative sample used was related to a time well after the tax period and “extremely short” in comparison (the sample looked at a period of 3 months and the tax period was 6 years). The Board also mentioned that while the taxpayer’s method may be sufficient in other circumstances, it was too far removed and reflected too narrow of a time frame to establish that the products sent to DSW and Dressbarn were ultimately received outside of Ohio. As a result, the Board affirmed the Department’s final determination.

Jones Apparel Group, et al. v. McClain, Case Nos. 2020-53, 2020-54 (Sept. 13, 2023).

Eversheds Sutherland is a proud sponsor of COST’s 54th Annual Meeting, covering all types of state and local taxes that business taxpayers are confronted with on a daily basis. Held in Las Vegas, NV between October 17 – 20, members of our SALT team will present on the following topics:

  • Jeff Friedman – 2024 and Beyond: The Acceleration of Business Tax Increases? 
  • Jonathan Feldman – Judicial Deference in Tax Controversies
  • Tim Gustafson – Local Taxes – Constitutional Constraints and Best Practices for Tax Administration
  • Todd Betor – Financial Accounting for SALT
  • Charlie Kearns – The New Mobile Workforce – Employees Working from Anywhere

For more information and to register, click here.

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: California Governor Gavin Newsom recently signed legislation establishing a new 11% excise tax on what kind of products?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

Saddle up to meet our October Pet of the Month, Arson!

This striking Andalusian gelding is well traveled, having made his way from Madrid to New York to his final destination of Georgia where he was united with his owner, Jessica O’Quin, State and Local Tax Director at InterContinental Hotels Group.

Joining forces with Jessica after her previous horse had to reign in his more vigorous jaunts, Arson loves to be the mane attraction, especially by horsing around and performing tricks at random in hopes of earning a cookie. At five years of age, Arson enjoys galloping through the pasture with other horses where he lives in a stable state of mind. In future years, Jessica aims to compete in dressage and mounted archery with Arson.

Welcome to the SALT Pet of the Month family, Arson!

In a June 1, 2023 determination, the Virginia commissioner concluded that a Virginia data center operator was entitled to a sales and use tax refund on its equipment purchases, regardless of whether they were delivered to a storage facility prior to delivery to the data center. 

Virginia allows a sales and use tax exemption for certain equipment purchased or leased for use in a data center. In reliance on this exemption, a Virginia data center operator pursued refund claims on its purchases of qualifying equipment. The Department denied the refund claims on the equipment that was delivered to the company’s Virginia storage facility prior to delivery to the data center itself. 

On appeal, the commissioner concluded that the data center operator’s equipment purchases qualified for the exemption, despite first being delivered to a storage facility. The commissioner observed that the statutory exemption did not include a requirement that the data center use the purchased items immediately. Rather, the exemption applied to eligible equipment either “used or to be used” in the operation of the data center. The commissioner further noted that storing equipment in reserve is “an essential part of data center operations.”  The incentive provided by the data center exemption would be impaired by “[p]rohibiting data centers from purchasing items for future use.”

Va. Public Document Ruling No. 23-67, Va. Dep’t of Tax. (Jun. 1, 2023).

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: The Department of Treasury in which state recently updated its sales and use tax guidance on computer software and digital goods?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

The Texas Comptroller of Public Accounts held its annual briefing in Austin on September 26 and provided taxpayers with updates regarding the administration of research and development credits, pending litigation, rule updates and related topics. The meeting – which was the first all in-person briefing since the beginning of the pandemic – struck an optimistic tone regarding the strength of the Texas economy and the Comptroller’s efforts to recover from its recent staffing shortages.

A Texas-sized R&D Backlog

The Texas Comptroller has struggled to administer the R&D credit over the past few years, resulting in a significant backlog of R&D audits and appeals. Texas’ R&D credit was a topic of intense interest for this year’s annual meeting and was covered in many of this year’s presentations. 

Brett Hare, the director of the Comptroller’s Direct Tax Section, said that the agency is making progress on its large backlog of R&D cases. Tax Hearings Attorney Supervisor Sarah Berry similarly said that her team was starting to move forward with pending R&D-related hearings and would consider taxpayer settlement requests for R&D issues.

Audit Director Emma Fuentes said that the audit division has shifted its approach to reviewing R&D credits. R&D credits are no longer being sent solely to the Tax Policy Division, which had been overwhelmed by the volume of requests. Now, a team from the Comptroller’s headquarters assists auditors to review R&D credit documentation. Fuentes also said that the Comptroller’s office understands that taxpayers typically cannot provide perfect documentation to substantiate R&D claims. Therefore, the Comptroller expanded the types of documentation that it will consider such as contemporaneous emails from personnel demonstrating that testing activity occurred.

Nick Souza of the Comptroller’s Policy Division said that the agency continues to focus on the Four-Part Test to determine whether a project has conducted qualifying research activities. The Four-Part Test is the test described in IRC, §41(d) (“Qualified research defined”) that determines whether research activities are qualified research. The four parts of the test are the Section 174 Test, the Discovering Technological Information Test, the Business Component Test, and the Process of Experimentation Test.

Souza added that taxpayers should continue to submit information used to qualify for the federal R&D credit, but that such documentation is not always conclusive for Texas purposes because the IRS does not always analyze the Four-Part Test, and the Texas-specific R&D expenses may not be apparent.

Virtual Currency, Cloud Computing, Data Processing and other Indirect Tax Developments

The Comptroller’s Indirect Tax Division highlighted two recent memorandums concerning virtual currency and credit card reporting services:

  1. No. 202309029L, the Comptroller clarifies that it considers electronic video games and associated virtual currency, virtual goods, and other content to be taxable amusement services. Meanwhile, membership fees, subscription fees, or similar charges, by whatever name called, for access to an electronic game or associated content are charges for membership or access to special privileges.
  2. In Memo No. 202302004L, the Comptroller determined that services to assign credit ratings to legal entities are taxable as credit reporting services.

    Two legislative changes that the Indirect Tax team is helping administer are H.B. 1515, which modifies the residency requirement for qualified Enterprise Zone employees to permit remote work, and S.B. 1122, which deals with the taxability of designated doctor exams related to workers’ compensation claims.

    The Indirect Tax Analyst Melissa Schulz said that her team is working on updates to Comptroller Rule 3.330, to provide examples of data processing services. Schultz also added that the team is discussing topics such as resale exemptions for cloud computing, out-of-state software licenses, and what emerging technologies may constitute taxable data processing.

    Franchise Tax apportionment, reporting, and other Direct Tax Updates

    The Comptroller finalized amendments to its franchise tax apportionment rule, discarding the now-repudiated “receipt-producing, end-product act” test. The Comptroller proposed these amendments in response to the Texas supreme court’s unanimous decision in Sirius XM Radio, Inc. v. Hegar. Eversheds Sutherland’s SALT Team represented Sirius XM in this litigation.

    Comptroller’s rule replaces the term used by the Texas supreme court—“equipment”—with the more general term “property” in apparent recognition that the location of property that is not equipment may be relevant as well.

    The Direct Tax team discussed the implementation of S.B. 3, which increases the threshold before small businesses are required to pay and file franchise taxes. The Tax Policy division also issued a memo to the Audit division on the impact of Hegar v. Health Care Services Corp. to stop-loss insurance. Based on the decision in Health Care Services Corp., insurers can allocate premiums received for stop-loss policies purchased by employers to finance self-funded employee health care benefits when calculating gross premiums subject to premium and maintenance tax if the insurer follows a reasonable allocation methodology that is supported by sufficient evidence.

    Audit Sampling Gone Wrong

    The Comptroller’s audit team discussed an initiative to change how audit samples are developed. Audit Director Emma Fuentes said that her team has noticed instances where a taxpayer’s audit sample complies with the Comptroller’s standards, but is nevertheless so large that it becomes inefficient. The example provided was an audit sample of 6,000 items that took approximately 1,500 hours to review. Methods to reduce sample sizes include merging sample categories, eliminating immaterial sample categories, and increasing the variances between dollar stratums up to eight percent.

    Refund Claims for Nonpermitted Taxpayers

    Nonpermitted taxpayers are required to fill out a Form 00-985, “Assignment of Right to Refund” in order to file refund claims. The Audit Director Fuentes said that her staff has noticed a widespread issue of taxpayers losing their refund claims due to statute of limitations because the form is not being sufficiently completed, specifically the requirement to itemize the transactions that form the basis for the refund claim. Audit staff are now conducting more thorough reviews of the Assignment of Rights forms as they come in, but Fuentes implores service providers to be more thorough when submitting the forms.

    Ongoing Audit Staffing Problems

    The Comptroller’s audit division remains understaffed. Director Fuentes said that the audit division is averaging staffing levels around 460 auditors down from a pre-pandemic average of 570. Interest waivers may be available for taxpayers who experience audit-related delays.

    Tax Hearings Bypass Process

    Victor Simonds, Senior Counsel of Tax Compliance, highlighted the progress of the Comptroller’s relatively-new hearings bypass process. Simonds noted that although the process allows taxpayers to quickly access District Court, taxpayers should not ask auditors to summarily deny claims to expedite the process. Mr. Simonds said that it was important to develop a complete record for District Court and that the hearings bypass process has been successful at fully or partially resolving many claims.

    See you in court… This Year’s Texas Tax Litigation Update

    Bree Boyett from the Comptroller’s Tax Litigation Team provided an overview of recent significant tax cases, including:

    • Apple, Inc. v. Hegar: An Internet Tax Freedom Act challenge to the imposition of sales tax on iCloud and iTunes matching services as data processing services.
    • Hibernia Energy LLC v. Comptroller: A case concerning how flow-through status for federal tax purposes is converted to taxable entity status for the Texas franchise tax.
    • Anadarko Petroleum Corporation v. Hegar: A COGS case regarding whether a $4 billion payment related to the Deepwater Horizon oil spill could be deducted as a cost of goods sold under an “origin of the claim” theory. 
    • American Airlines v. Hegar: A franchise tax controversy in which an airline claims that Texas’ imposition of franchise tax on baggage and passenger fees is prohibited by the Anti-Head Tax Act.
    • Sidetracked Bar LLC v. Hegar: A case holding that an electronic sweepstakes using magnetic card strips was taxable as an amusement service.
    • Boaz Energy II Operating LLC. V. Hegar: A sales tax case concerning whether tangible personal property purchased in connection with the operation of secondary recovery injection wells is exempt as property specifically installed to reuse and recycle wastewater streams generated within the manufacturing, processing, fabrication, or repair operation. Similarly, XRI Holdings, LLC v. Hegar is a case about whether water used for fracking qualifies for a sales tax exemption for wastewater treatment.
    • Avalon Exploration and Production LLC v. Hegar: A case regarding whether oil soluble chemicals are exempt from sales tax because they become a component of property sold for resale.

    What’s Next for Texas

    The Texas economy continues to outpace expectations according to the Comptroller’s Chief Revenue Estimator, Brad Reynolds.

    Reynolds said that the forthcoming revised revenue estimate abandons predictions of a recession, and that there are no strong indications that Texas will experience a recession next year. Notable areas of increased Texas tax collections include hotel occupancy, insurance and franchise taxes. Reynolds also noted that state coffers received a boost for increased apportionment from service providers that relocated their corporate headquarters to the state.

    The presentations throughout this year’s briefing struck an equally optimistic tone for the agency’s continuous efforts to improve its staffing, resolve the backlog of R&D cases, and push to clarify existing guidance. Taxpayers will continue to navigate the Comptroller’s evolving rules and audit process, as well as litigate some highly interesting cases in court. Eversheds Sutherland’s tax team will keep monitoring Texas developments and provide insights on what Texas taxpayers can expect in the Lone Star State.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state’s Supreme Court recently held that the sales tax exemption for the sale of aircraft parts and maintenance did not apply to aircraft lease charges for repairs and maintenance?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    So you think you know sales tax? Eversheds Sutherland SALT attorneys Liz Cha and Jeremy Gove will present on sales tax topics during the 2023 IPT Sales Tax Symposium, held in Chicago from October 1-4.

    Liz’s panel will identify notable local taxes and equip taxpayers with the skills to minimize risk, while Jeremy will explore trends in states’ manufacturing exemptions, with a focus on applicable cases and other hot topics.

    For more information and to register, click here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state recently held that payroll, property and sales that generated deductible agricultural cooperative income must be included in the taxpayer’s corresponding payroll, property and sales apportionment factors?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On September 19, 2023, the D.C. Tax Revision Commission met for the second time to discuss proposals for changes to the D.C. tax scheme. Among the multiple topics reviewed, the Commission’s members discussed whether to create a business activity tax, which would primarily target entities that do not pay the District’s net income taxes on business entities – Corporation Franchise Tax or Unincorporated Business Franchise Tax. However, reception among the members on this proposal was mixed. The Commission also discussed a broad range of proposals, covering a range of tax types.

    Business Activity Tax

    For background, the District’s status as a federal enclave and not a state (while “functioning” as a state, county, and municipality for tax purposes) is unique among U.S. jurisdictions.  Pursuant to the Home Rule Act[1] and ultimate oversight by Congress, the District cannot impose tax on the personal income of non-residents. Because the District cannot tax the income of non-residents, it imposes the Unincorporated Business Franchise Tax to tax the entities of which they are owners, such as partnerships. However, the Unincorporated Business Franchise Tax does not apply to the income of professional partnerships.

    To address what it views as those inequities, the Commission now proposes creating a Business Activity Tax. The tax would apply at a 0.5% or 1.0% rate on the formula of Gross Receipts – [Cost of Goods Sold + Capital Purchases]. The Commission also considered the Business Activity Tax liability being a nonrefundable credit against the Corporation Franchise Tax or the Unincorporated Business Franchise Tax. In its proposal paper, the Commission specifically identifies law partnerships as being subject to new tax liabilities, along with, potentially, nonprofit entities. 

    The Commission’s members were not convinced by the business activity tax proposal. There were concerns about the tax applying to businesses that failed to make a profit and, also, providing a disincentive to start-ups considering locating in the District. The Commission’s members did not entirely rule out the tax, though, because of its potential as a revenue-raiser.

    Other Proposals

    The Commission brainstormed a number of other policy ideas affecting income taxes, taxation of partnerships, property taxes, and administrative issues, including:

    • Joyce to Finnigan. The District currently uses the Joyce method of combined reporting.  In other words, District combined reports may include only entities that separately have nexus with the District. The Commission’s members broadly supported switching to the Finnigan method of combined reporting, which would treat the entire combined group as includible in the combined return, unless otherwise excluded.
    • Pass-Through Entity Tax. Unlike many other states, the District does not currently have a SALT cap workaround option for individuals to bypass the federal cap on deductions for state taxes paid. The federal cap does not apply for taxes paid by businesses because they qualify instead as deductible business expenses. By allowing unincorporated pass-through entities that are not subject to the unincorporated business franchise tax (such as law and accounting partnerships) to pay entity-level tax and giving their owners an equivalent tax break at the individual level, the owners can reduce their federal income tax liabilities. This change would be optional for District taxpayers. The members of the Commission also supported this proposal.
    • Finally, the Commission’s members also discussed: (1) switching from I.R.C. rolling conformity to static conformity; (2) whether to increase the franchise tax filing thresholds and minimum tax amounts; (3) repealing, or increasing the threshold for, personal property tax; and (4) eliminating or limiting the District’s bar on issuing clean hands certificates for taxpayers with outstanding tax liabilities.

    Future meetings and next steps

    The Commission currently has scheduled four more proposal review sessions – September 26th, October 10th, October 20th, and October 24th. At the next meeting, the Commission expects to discuss whether to levy a per-employee service fee on employers and create an “extreme” wealth tax.

    [1] D.C. Code Ann. § 1-206.02(a)(5).

    On Wednesday, September 20, Eversheds Sutherland Partners Michele Borens, Jeff Friedman, Ted Friedman and Maria Todorova will provide various SALT updates to TEI’s Seattle Chapter.

    Sessions and speakers include:

    • Jeff Friedman – WA DOR update
    • Michele Borens, Maria Todorova – Sales Tax Is Cooler
    • Jeff Friedman, Ted Friedman – No, Income Tax Is Cooler
    • Michele Borens, Jeff Friedman, Ted Friedman, Maria Todorova – Why SALT isn’t Kosher?

    On September 13, 2023, the D.C. Tax Revision Commission met and evaluated over a dozen tax proposals. Most concerning, the Commission discussed the possibility of implementing a digital advertising tax or a data mining tax.

    D.C. Tax Revision Commission

    The Council of the District of Columbia established the Commission to comprehensively review the District’s tax code. The Commission’s mandate is to make tax policy recommendations on:

    1. Providing for fairness and equity in the apportionment of taxes and promoting progressivity;
    2. Broadening the tax base;
    3. Making the District’s tax policy more competitive with surrounding jurisdictions;
    4. Encouraging business growth and job creation; and
    5. Modernizing, simplifying, and increasing transparency in the District’s tax code.[1]

    By the end of 2023, the Commission is set to submit its slate of recommendations to the Council, along with specific steps for implementing the recommendations, such as draft legislation and regulations.

    The Commission previously released reports in 1998[2] and 2014.[3] Each Commission’s report made recommendations for changes to the District’s tax system. For example, in 1998, the Commission recommended a 1.5% business activities tax and “taxing sales of tangible products to District residents the same regardless of whether they are sold remotely or by District-based businesses.” In 2014, the Commission recommended reducing the District’s business franchise tax rate from 9.975% to 8.25%.

    D.C. Tax Revision Commission proposals

    Throughout 2023, the Commission has met with various tax and fiscal policy experts, as well as community and industry representatives. It has prepared a series of proposals to review and potentially suggest to the Council. On September 13, 2023, the Commission met for the first time to discuss these various proposals. In advance, the Commission released the list of proposals that they would review. 

    The first proposal on the list was “Strengthen and clarify taxation of digital ads and services.” The Commission released a proposal paper, elaborating on the topic. The proposal paper specifically listed as options: (1) a digital advertising tax act similar to Maryland’s enactment; and (2) a tax on “the extraction of consumer data by tech platforms in much the same way that states tax the extraction of valuable commodities like fossil fuels or precious metals.” The second option would be a “per-consumer excise tax that accounts for each user whose data is being mined.” 

    The sordid history of state digital advertising taxes

    Maryland became the first – and only – state in the United States to impose a tax on gross receipts from digital advertising services in 2022. The tax is imposed on gross revenues derived from digital advertising services in Maryland at graduated rates, from a minimum rate of 2.5% to a maximum rate of 10% of such revenues. The Maryland digital advertising generated immediate controversy, with taxpayers challenging the tax in state[4] and federal courts on federal statutory and constitutional grounds.[5] While those challenges have yet to result in a final nonappealable decision on the legality of the Maryland tax, we expect the Maryland Supreme Court to eventually reach the merits and, hopefully, find the tax to be unconstitutional. And while several other states have considered Maryland-style digital advertising tax legislation, those proposals ultimately have been rejected.

    With the history of Maryland’s digital advertising tax in mind, the Commission’s proposal paper acknowledged that any potential D.C. tax similar to Maryland’s tax would likely face similar legal challenges. But the paper noted that it may be able to “minimize challenges by, for example, imposing a tax on all advertising (as opposed to just digital advertising). There could then be less risk that the tax would violate the federal Internet Tax Freedom Act.” But imposing a broad advertising tax could prove difficult for the Council based on recent experience. In 2020, the Council considered expanding its sales tax base to include sales of advertising services and personal information, as part of its Fiscal Year 2021 Budget Support Act of 2020. Ultimately, the D.C. Council opted not to pursue expanding its sales tax base to these sales due to the adverse impact on local media and press, on top of the likely litigation that would follow if a targeted tax on digital advertising were adopted.[6]

    The Commission meeting on September 13th

    At the meeting, the Commission discussed the first batch of proposals but without formally voting on them, which will happen in a later meeting. Rather, the meeting was intended to advance discussion in preparation for later formal voting. 

    The Commission’s members were generally interested in pursuing a digital advertising tax or a data mining tax. The members saw these taxes as being worth consideration because of the potentially large amount of revenue they could generate. One member supported the taxes because he saw them as an expansion of the tax base to match changing technology, rather than a tax rate increase.

    However, there was hesitancy among the Commission’s members because of the ongoing Maryland litigation and potential tax implementation difficulties. The Commission’s members noted that the process to pass and implement these taxes could be long, especially as they were interested in whether the Maryland tax would survive legal scrutiny.

    The Commission also considered a variety of other proposals. For example, the Commission’s members reacted negatively to increasing the general sales tax rate from 6 percent to 7 percent due to regressivity concerns. However, they were supportive of eliminating the motor vehicle excise tax exemption for electric vehicles.

    Future meetings and next steps

    The Commission currently has scheduled five additional proposal review sessions—September 19th, September 26th, October 10th, October 20th, and October 24th. These sessions will shape which recommendations the Commission will make to the D.C. Council. Of particular interest for the September 19th meeting, the Commission likely will discuss a business activity tax proposal, which may resemble the Texas franchise (margin) tax and the Oregon corporate activity tax. Eversheds Sutherland will continue to follow these review sessions that will color the next decade of District taxation. 

    [1] D.C. Code Ann. § 47-462.

    [2] See Summary Report to the Mayor and Council of the District of Columbia, June 1998, D.C. Tax Revision Commission (June 1998), available at https://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/ocfo_part_i_summary_report.pdf.

    [3] Final Report, D.C. Tax Revision Commission (May 2014), available at https://cfo.dc.gov/sites/default/files/dc/sites/ocfo/publication/attachments/DC%20Tax%20Revision%20050114.pdf.

    [4] The Maryland digital advertising tax was challenged in the Circuit Court of Anne Arundel County, with the plaintiffs seeking a declaratory judgment that the tax is unconstitutional and unlawful.  On October 17, 2022, the circuit court granted the plaintiffs’ motion for summary judgment and issued a final declaratory judgment, finding that the tax was unconstitutional and invalid because it violated the Internet Tax Freedom Act (which bars state and localities from imposing taxes that discriminate against electronic commerce), the Commerce Clause of the U.S. Constitution, and the First Amendment to the U.S. Constitution. Comcast of California/Maryland/Pennsylvania/Virginia/West Virginia, LLC, et al. v. Comptroller of the Treasury of Maryland, Case No. C-02-cv-21-000509 (Md. Cir. Ct. final declaratory judgment issued Nov. 17, 2022).While the Maryland Supreme Court later concluded that the circuit court lacked jurisdiction to enter the declaratory judgment, the supreme court did not address the tax’s legality. Comptroller of Maryland v. Comcast of California/Maryland/Pennsylvania/Virginia/West Virginia, LLC, et al., 484 Md. 222 (2023). As it stands, only one court has review the legality of Maryland’s digital advertising tax. That court found it to be unconstitutional under multiple theories.

    [5] The Chamber of Commerce of the United States is also pursuing a challenge to the Maryland digital advertising tax at federal court. However, the United States District Court for the District of Maryland concluded that the Tax Injunction Act precluded the Chamber’s substantive challenges to the tax. While the court initially allowed the lawsuit to proceed against the tax’s pass-through prohibition, the court later also dismissed that challenge as moot because of the Circuit Court of Anne Arundel’s declaration that the tax violated the U.S. Constitution. The Chamber is currently challenging these decisions before the United States Court of Appeals for the Fourth Circuit. Oral argument is set for September 20, 2023. Chamber of Commerce of the United States v. Lierman, No. 22-2275 (4th Cir. notice of appeal filed Dec. 13, 2022).

    [6] The sales tax on advertising services would have applied to “the planning, creating, placing, or display of advertising in newspapers, magazines, billboards, broadcasting, and other media, including, without limitation, the providing of concept, writing, graphic design, mechanical art, photography, and production supervision.” The tax would have encompassed both physical and digital advertising. The proposed sales tax on sales of personal information would have applied to “information or data that is derived from a person that identifies, relates to, describes, or is capable of being associated with, a particular person” and included a person’s browser habits and consumer preferences.

    This episode of the SALT Shaker Podcast welcomes a new voice into the mix, Eversheds Sutherland Associate Laurin McDonald. Laurin joins host and Associate Jeremy Gove to describe 80/20 rules used by states in the context of water’s-edge combined reporting, the subject of an article she co-authored in Tax Notes State.

    In addition to discussing the 80/20 rules, Jeremy and Laurin cover variations on the rules, compliance issues and recent cases that exemplify controversies that can arise from application of 80/20 rules.

    They wrap with an underrated/overrated question – how do you feel about concert encores?

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:

    The back to school buzz has begun! Time to hit the books and open a new chapter with plenty of learning and growth.

    To commemorate the start of the 2023 school year, we’ve collected photos from members of our Eversheds Sutherland SALT team for your enjoyment! We wish all these bright minds a wonderful academic year!

    1: Partner Charlie Kearns’ daughter Ella (1st grade)

    2: Paralegal specialist Jaime Lane’s daughter Cassidy (6th grade) and son Cooper (8th grade)

    3: Legal secretary Janet Curry’s granddaughter Raegan (pre-K)

    4: Associate John Ormonde’s daughter Betsy (pre-K)

    5: Partner Jonathan Feldman’s daughter Anna (8th grade) and son Micah (5th grade)

    6: Partner Tim Gustafson’s son Luke (4th grade) and daughter Cate (8th grade)

    7, 8: Legal secretary Melissa Bragg’s daughters Madelyn (4th grade) and Emma (10th grade)

    9, 10: Partner Maria Todorova’s daughter Addison (7th grade) and son Nicholas (5th grade)

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: A tax court in which state found that a used car dealership was properly denied $1 million in sales tax deductions due to a failure to properly maintain records?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    There has been an alarming expansion of local taxes. In some localities, this includes new local taxes imposed on businesses. In other localities, this includes aggressive interpretations of existing local ordinances by local tax agencies.

    In this installment of A Pinch of SALT in Tax Notes State, Eversheds Sutherland attorneys Michele Borens, John Ormonde and David Patterson examine a relatively old local tax — San Francisco’s gross receipts tax.

    Read the full article here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which southwestern state city council recently voted to put a measure on the November ballot asking residents to approve a 3% excise tax on any residential property purchase price in excess of $1 million?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The most purrfect pals, Lady and Monkey, are September’s SALT Pet(s) of the Month! Belonging to Mitch Trager, Senior Tax Manager at Forvis, these sisters make a pawsome duo, especially when teaming up to steal a spot on vacated chairs or in purrsuit of milk and butter, their favorite treats.

    Named by Mitch’s oldest son, the two cats are the perfect additions to the Trager family.

    Welcome to the SALT Pet of the Month family, Lady and Monkey!

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: The California Court of Appeal, Fourth Appellate District, recently held that a citizens’ initiative need only receive what percentage vote to pass?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The Michigan Department of Treasury issued a Revenue Administrative Bulletin (RAB) describing the taxation of computer software and digital products to reflect updated case law and legislation enacted in 2004, which, among other things, defined “tangible personal property” to include “prewritten computer software.” The RAB provides that the “key feature” in determining whether prewritten software is taxable is whether a party exercises a right or power over it, which turns on how it was delivered. For example, if a user merely accesses the software through a third-party server outside of the state, the software is not taxable. Additionally, the RAB provides that the Department will use the “incidental to service” test to determine whether a transaction that includes prewritten software and professional services is taxable. The RAB specifies that digital goods that are not prewritten computer software, like e-books, movies streamed over the internet, or podcasts are not taxable, but noted that applications or video games downloaded or otherwise installed onto electronic devices could constitute prewritten computer software. Finally, the RAB provide how to source sales of prewritten computer software following the repeal a statute that allowed consumers to apportion tax for software through a multiple-points-of-use exemption certificate.

    The South Carolina Administrative Law Court (ALC) held that the South Carolina Department of Revenue could require Tractor Supply and its affiliates to file a combined return notwithstanding that South Carolina law requires corporate taxpayers to file tax returns on a separate-entity basis. In a factually intensive ruling, the ALC found that the Department met its burden of proving that the taxpayer’s separate-entity return filings resulted in distortion and that combined reporting was a reasonable alternative method that fairly reflected the combined group’s business activity in the state. In rendering its decision, the ALC noted that the taxpayer’s expert admitted that the taxpayer’s original transfer pricing methodology was “flawed and unreliable” and its proposed alternative transfer pricing approach was not based on sufficient evidence. As a result, the ALC found that the Department was justified, in this circumstance, to exercise its discretion to require the taxpayer’s unitary group to file a combined tax return.  

    Tractor Supply Co. v. S.C. Dep’t of Revenue, No. 19-ALJ-17-0416-CC (S.C. Admin. Law Ct., Aug. 8, 2023).    

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state issued an emergency rule-making order regarding administrative rules surrounding sales and use tax and B&O tax for remote sellers?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: New Mexico recently updated guidance for online marketplace providers and sellers reflecting that out-of-state taxpayers pay gross receipts tax at what new reduced rate?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On August 16, during the National Conference of State Legislatures’ (NCSL) 2023 Indianapolis Legislative Summit, Eversheds Sutherland Partner Charlie Kearns will cover the remote work revolution. He will discuss how the shift away from the office has caused issues for state and local economies, and cover remote work’s impact on commercial property values, public transit and the growing question of how to tax work that crosses state borders.

    In addition, also on August 16, Eversheds Sutherland Partner Todd Betor will participate in an industry panel during the Midwestern States Association of Tax Administrators (MSATA) Annual Conference 2023, providing his perspective on hot topics presented by attendees.

    Finally, Eversheds Sutherland is a proud sponsor of the Council On State Taxation (COST) 2023 SALT Workshop for Technology Companies, which covers the key SALT issues that technology companies are facing. Held in Foster City, CA from August 16-17, presenters and topics include:

    • Jeff Friedman – Update on States’ Digital Services Tax Initiatives
    • Michele Borens – Conundrums with the States’ Marketplace Facilitator Laws

    View and learn more about past and upcoming events and presentations.

    In this episode of the SALT Shaker Podcast, Eversheds Sutherland Partner Tim Gustafson joins Associate Jeremy Gove for a deep dive into California’s market-based sourcing regulation.

    Together they discuss various interpretations of and proposed amendments to the regulation offered over the past six years, and how the interpretations and amendments might affect taxpayers.

    They wrap with a series of underrated/overrated questions related to scents.

    You can read Tim’s article on the topic for Tax Notes State here.

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:

    On August 9, 2023, the New York State Department of Taxation and Finance (Department) submitted its draft corporate franchise tax regulations for publication in the State Register – a significant and necessary step in the State Administrative Procedure Act (SAPA) process to formally adopt regulations related to the sweeping reform of the state’s Corporation Franchise Tax that was enacted nearly a decade ago. 

    Read the full Legal Alert here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state’s Court of Appeals recently held that a qualifying taxpayer could elect the alternative apportionment method for manufacturers for the first time on an amended tax return?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    In the pending-precedential decision Appeal of Southern Minnesota Beet Sugar Co-op., the California Office of Tax Appeals (OTA) ruled that payroll, property and sales that generated deductible agricultural cooperative income under Cal. Rev. & Tax. Code Section 24404 must be included in the taxpayer’s corresponding payroll, property and sales factors. 

    The California Franchise Tax Board (FTB) argued that such payroll, property and sales should be excluded from both the numerator and denominator of the apportionment factors because the activities produced deductible income. The FTB relied on Legal Ruling 2006-01, which reflects the agency’s long-standing position that activities not resulting in net business income should not be reflected in the apportionment formula.  Despite the FTB’s request for deference to its interpretation, the OTA disagreed with the FTB’s position.  Looking to the plain language of the governing apportionment statutes, the OTA concluded that there were no grounds to exclude activities that give rise to apportionable business income whether or not deductible. Specifically, the OTA drew a distinction between income that is deducted, and income that is “exempted,” “excluded,” or “not recognized” under the terms of the Revenue and Taxation Code, the latter of which “generally do not enter into gross income (or gross receipts) to begin with.” 

    In the Matter of the Appeal of Southern Minnesota Beet Sugar Co-op., 2023-OTA-342P (Cal. OTA March 17, 2023), petition for rehearing denied, 2023-OTA-343 (Cal. OTA June 6, 2023).

    The Colorado Department of Revenue issued a private letter ruling concluding that a taxpayer’s income arising from the sale of Colorado real property is apportionable income because the property was used in the taxpayer property rental business. However, the proceeds from such sales are not “receipts” and thus not included in its Colorado apportionment factor calculation because the sale of the property did not occur in the regular course of the taxpayer’s business.  The taxpayer received receipts in the regular course of its business from property rentals, and disposed of its real property only on infrequent occurrences.  Thus, the Department concluded that proceeds for a sale of real property was apportionable income as it was “income arising from transactions and activity in the regular course of a taxpayer’s trade or business.” But, for purposes of determining the apportionment factor, receipts are included in the calculation only to the extent that they are “received from transactions and activity in the regular course of a taxpayer’s trade or business.”  The taxpayer’s business is property rental, not property sales, and thus the Department determined that the receipts received from the disposition of the real property are not “receipts” for purposes of determining the taxpayer’s Colorado apportionment factor.

    Colo. Dept. of Rev., PLR 23-002 (Mar. 13, 2023).

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: The Washington DOR recently determined that an audio equipment rental company who rented and also operated the equipment was not entitled to an exemption from what state-level tax?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The Wisconsin Supreme Court recently held that the state’s sales tax exemption for the sale of aircraft parts and maintenance does not apply to per-flight-hour aircraft lease charges for repairs and maintenance.

    Under Wis. Stat. § 77.51(15b)(a), sales tax applies to the total amount of consideration that the taxpayer receives for leasing its aircraft, without any deduction for the taxpayer’s cost of materials used, labor or service cost, or any other expense of the taxpayer. Although the taxpayer’s purchase of aircraft repairs and engine maintenance from vendors is tax-exempt, tax applies when the taxpayer passes those costs along to its customers as part of the total amount of consideration in a lease.

    The taxpayer sought to apply statutory exemptions related to aircraft: Wis. Stat. § 77.54(5)(a)3., which exempts the sale of “parts used to modify or repair aircraft,” and Wis. Stat. § 77.52(2)(a)10., which exempts the sale of “repair, service, … and maintenance of any aircraft or aircraft parts.” The court held that the taxpayer’s activities fell outside of the text of the exemptions because it was leasing aircraft to the lessees rather than re-selling aircraft repairs or engine maintenance services.  Further, the court found that the taxpayer was not incurring the repair and maintenance costs as the lessee’s agent.  The repairs and maintenance were cost of the taxpayer’s business that did not reduce the taxable sales price of the aircraft lease. 

    Citation Partners, LLC v. Wisconsin Department of Revenue, 985 N.W.2d 761 (Wis. 2023)

    Meet sweet Zita, our August Pet of the Month and rescue pup belonging to Jace Chevalier, Senior Tax Manager at T-Mobile. Named after the children’s book series “Zita the Spacegirl,” Zita joined the Chevalier family in 2021 by way of the Houston K-911 Rescue.

    Jace and his family speculate that Zita is a Corgi and Pit Bull mix. They are one hundred percent certain, though, that she’s a good girl!

    The five-year-old’s favorite munchies are bananas and sunflower seeds, and she also enjoys her two daily walks, chasing balls at the park and sunbathing on the deck.

    Her morning routine of stretching, rolling around on her back, and making good morning sounds is pretty funny. It also didn’t take her long to figure out how to remove that sweater she’s wearing in the picture below!

    We’re happy to have you, Zita!

    On August 9, join Eversheds Sutherland attorneys Charles Capouet, Cyavash Ahmadi and Meriem El-Khattabi for a review of the long-standing SALT Scoreboard publication and the important state tax cases from the first half of 2023. In addition to recapping case opinions, Charles, Cyavash and Meriem will analyze case trends and compare 2023’s results to prior years’ case tallies.

    Register to join us here.

    An Illinois Appellate Court affirmed a circuit court’s dismissal of a qui tam action filed against a United Kingdom-based tailoring shop. The court held that although the tailor’s failure to investigate its use tax collection obligations was “an ostrich-type situation,” the tailor nevertheless did not violate the Illinois False Claims Act.

     The Illinois False Claims Act provides two theories of liability:

    1. knowingly making, using, or causing to be made or used a false record or statement material to an obligation to pay or transmit money or property to the State; or
    2. knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay or transmit money or property to the State.

    The Act defines “knowingly” to include a person: (i) having actual knowledge of the information; (ii) acting in deliberate ignorance of the truth or falsity of the information; or (iii) acting in “reckless disregard” of the truth or falsity of the information.  The Relator claimed the tailor’s failure to investigate its tax responsibilities was reckless disregard of the tax law. 

    The tailor’s failure to investigate its use tax obligation could have been sufficient to demonstrate that it acted with reckless disregard, but the Relator failed to seek and submit discovery on the tailor’s nexus with Illinois to support a finding of scienter, i.e. the requisite knowledge under the False Claims Act.

    Further, in choosing to use the words “avoid” and “conceal,” the court found that the legislature intended to cover only those persons who intentionally choose not to meet their tax obligation, rather than a merely failing to pay tax.

    The record failed to show the tailor knowingly concealed, avoided, or decreased an overpayment it received from the State of Illinois. Therefore a dismissal of the qui tam action was warranted.

    People ex rel. Stephen B. Diamond PC v. Henry Poole & Co. LTD, No. 2018 L 10136 (Ill. App. Ct. June 30, 2023).

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state’s legislature recently overrode a governor’s veto of a bill that creates a payroll tax to increase funding for child care?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The power and reach of administrative agencies — often led by unelected officials — has long been a source of controversy. Nearly 40 years ago, in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., the U.S. Supreme Court held that an administrative agency’s interpretation of a statute administered by that agency should be given deference if (1) the statutory provision is ambiguous and (2) the agency’s interpretation is merely reasonable. Since then, the case “has become ‘the most cited case in modern public law.’” For state tax practitioners, this is nothing new — deference to a tax collector’s interpretation of the tax law was taken for granted well before Chevron was decided, and its application extended beyond formally promulgated regulations.

    Wide variation between and within states’ administrative deference doctrines are problematic for obvious reasons. Taxpayers and businesses are harmed when there is uncertainty whether the law will be applied the same way in factually (and substantively) similar circumstances. But the rise of state tax tribunals, recent judicial opinions, and legislative and voter actions call into question the continued existence and viability of Chevron and related doctrines: How much deference should tax administrators be entitled to (if any)?

    In this installment of A Pinch of SALT in Tax Notes State, Eversheds Sutherland attorneys Jonathan Feldman, Cyavash Ahmadi and Cat Baron explore the deference afforded to state administrative agencies and suggest that, perhaps, the high-water mark is behind us.

    Read the full article here.

    The New Mexico Taxation and Revenue Department recently updated FYI-206, which describes the gross receipts tax collection responsibilities for online marketplace providers and sellers. The updated guidance reflects the new reduced gross receipts tax rate used for out-of-state taxpayers, 4.875%. Additionally, the updated guidance provides that marketplace providers may use Form TRD-31117, Marketplace Provider Data Sharing Agreement, to report to the Department a list of marketplace sellers it facilities sales for and paying gross receipts tax on those sales.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state recently approved legislation that requires its revenue services department to study the possibility of creating a blanket sales and use tax exemption for nonprofit organizations?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    Curious what the top 10 sales tax issues for 2023 are? Join Eversheds Sutherland attorneys Jonathan Feldman and Alla Raykin as they cover this topic during the Southeastern Association of Tax Administrators (SEATA) 73rd Annual Conference in Little Rock, AR on July 18.

    For more information and to register, click here.

    View and learn more about past and upcoming events and presentations for the SALT team.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: The Washington Court of Appeals recently held that a provider of what type of services for its affiliate’s enrollees met the insurance business exemption to the B&O tax?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The Alabama Court of Civil Appeals affirmed the trial court’s decision and held that retroactive application of the 2014 revisions to the “prepaid telephone calling card” provision of the Tax Code were unconstitutional as applied to the taxpayer. Taxpayer, an authorized dealer for Boost Mobile (“Boost”), sold Boost prepaid wireless-service plans to customers, but did not collect and remit the sales tax on the transactions. After an audit, the Department of Revenue (“Department”) assessed the taxpayer for the unpaid sales tax on the transaction and took the position that the transactions were subject to the sales tax under the “prepaid telephone calling card” provision of the Tax Code even though, as a Department employee conceded at trial, the type of prepaid wireless service provided by Boost through the taxpayer did not exist when the provision was enacted. While the assessment was being appealed at the Tax Tribunal, the legislature revised the Tax Code to require that the type of prepaid wireless service provided by Boost through the taxpayer would be subject to the sales tax. The revisions also included a provision stating that this change was prospective only except for “audits that began or assessments that were entered” prior to the effective date of the changes. The taxpayer asserted that this retroactive application violated its due process rights. The trial court agreed, holding that the taxpayer was not liable for the sales tax because the revisions, as applied to the taxpayer, were unconstitutional since the changes only applied retroactively to taxpayers who were either under audit or had an assessment entered against them as of the effective date of the revisions but did not apply retroactively to other taxpayers.

    On appeal, the Alabama Court of Civil Appeals, held that the retroactive application of the revisions to some taxpayers but not others “was not supported by a legislative purpose furthered by rational means.” The court disagreed with the Department’s argument that the retroactivity was constitutional because the revisions only clarified the “prepaid telephone calling card” provision of the Tax Code and that this clarification was rational. The court stated that “it was not the clarification … that the trial court determined was not supported by a legislative purpose furthered by rational means; it was [the] retroactive application to a small number of taxpayers … while exempting other taxpayers from the retroactive application[.]” The court also rejected the Department’s argument that that the language of the statute before the revisions made the taxpayer liable for the sales tax. The court stated that the plain language of the statute did not subject the taxpayer’s “receipt of a prepayment for Boost’s wireless service” to the sales tax.

    Alabama Department of Revenue v. Cellular Express Inc., No. CL-2022-0701 (Ala. Civ. App. May 12, 2023).

    On March 23, 2023, the Washington Department of Revenue issued an emergency rule-making order. The purpose of the emergency rule was to make the public aware that certain of the Department’s administrative rules concerning remote sellers’ sales and use tax nexus and minimum nexus thresholds for the state’s business and occupation tax may be outdated. Specifically, the Department cautioned that the public should not use Rules 193 (Interstate sales of tangible personal property), 221 (Collection of use tax by retailers and selling agents), and 19401 (Minimum nexus thresholds for apportionable activities and selling activities) “to determine their sales or use tax collection obligations or to determine substantial nexus for apportionable activities and selling activities for periods beginning on or after October 1, 2018.” The Department explained that the rules may be outdated because, Substitute Senate Bill No. 5581 (2019) “clarified the sales tax obligation for remote sellers and when a person is deemed to have substantial nexus for business and occupation (B&O) tax purposes.” Substitute Senate Bill No. 5581 (2019) provides that substantial nexus is established by a nonresident individual or business entity who has more than $100,000 of cumulative gross receipts in Washington in the current or immediately preceding year.

    A whole latte love! Meet our July Pet of the Month, Latte! Latte is an adorable Cavachon pup, combining the Cavalier King Charles Spaniel and Bichon Frise breeds. He recently celebrated his first birthday in May with his owner, Eugina Lim, a tax manager in SALT audit at Amazon.

    Eugina came up with his name due to his coat color as a puppy. At the time, she thought his color perfectly resembled the color of milk poured into iced coffee. However, given a coat color transformation as he’s gotten older, he’s now more a milk than a latte.

    Since his arrival in New York from Missouri last year, he’s enjoyed many of the finer things in life, including chicken jerky cooked up by Eugina’s parents when they visit. He also likes to play with visitors’ shoes. Eugina always warns her guests to hide them upon arrival because Latte will make sure their shoes follow them into the living room. 

    He also makes sure to always keep his eye on the ball. Each time Eugina asks him “where’s the ball?” he drops everything and scurries around the room until he finds it. She (sometimes!) hides the ball just to add to the challenge. 

    We’re pleased to feature Latte this month!

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state recently passed an exemption from state and local sales and use tax for purchases of qualifying agricultural fencing materials by commercial farmers?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    This week on the SALT Shaker Podcast, host and Eversheds Sutherland Associate Jeremy Gove welcomes New York Associate Chelsea Marmor back to the show for an update on New York tax developments.

    Jeremy and Chelsea kick off their discussion with a review of New York Governor Kathy Hochul’s Fiscal Year 2024 Executive Budget and the implications of its tax – and nontax – provisions. They particularly focus on the revenue raisers and what it all means for taxpayers going forward.

    They wrap with an underrated/overrated question – are mascots overrated?

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:


    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state’s Supreme Court recently held that capital gains resulting from the sale of an urban redevelopment project were not subject to personal income tax?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The Supreme Court granted certiorari on June 26 with respect to the Ninth Circuit’s decision in Moore v. United States. The question presented is whether the section 965 transition tax is a “direct tax” that violates the Apportionment Clause of the US Constitution.

    The Supreme Court has not invalidated a federal tax on constitutional grounds since Eisner v. Macomber, over a century ago. The last time the Supreme Court addressed the direct tax clause, in the Affordable Care Act case NFIB v. Sebelius, it required only a few paragraphs to hold that a tax on the condition of not having health insurance was not a direct tax. The opinion in NFIB was written by Chief Justice Roberts and joined by four other members of the court, two of whom (Justices Sotomayor and Kagan) are still on the bench.

    Read the full Legal Alert here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state legislature recently introduced a bill that would provide an income tax credit equal to 95% of donations made by a taxpayer to a lower-performing public school?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!


    The NYU School of Professional Studies is hosting its Introduction to State and Local Taxation Conference. This two day conference in the heart of Manhattan will provide attendees with the key concepts of state corporate income tax AND state sales and use tax. This conference is perfect for those who are new to SALT or those looking to brush up on the foundational concepts. 

    From July 24-25 in New York City, hear from state and local tax leaders as they describe fundamental concepts and practical applications of state corporate income tax and sales taxation. Topics include:

    • Sales and Use Taxation Fundamentals
      • Differences between Sales and Use Taxes
      • Sales tax exemptions and administration
      • Sales taxation of services and digital products
      • Marketplace facilitator tax requirements
    • Corporate Income Taxation Fundamentals
      • Determining the corporate income tax base
      • Allocation and apportionment
      • Separate, Consolidated, and Combined Reporting
      • The Unitary Business Principle
    • Gross Receipts Taxes
    • State Tax Research Tools, Tips and Tricks
    • And more…

    We hope to see you there! For more information or to register, click here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: New York’s State Legislature recently approved a bill that would extend a partial property tax abatement for what type of property owners in New York City?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    This week, Eversheds Sutherland Partners Liz Cha and Eric Tresh will present during the 2023 TEI Region 8 Annual Conference in Hilton Head Island, SC. Liz and Eric will tackle a state tax controversy update.

    For more information and to register, click here.

    View and learn more about past and upcoming events and presentations for the SALT team.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: The Internet Tax Freedom Act was recently held to prohibit which city’s tax on online storage services?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    Meet two very special ladies and our June SALT Pets of the Month, Haley and Hildee! Both dogs were rescued and now live in Northern California with Ben Wylie, Senior Tax Director at Instacart, and his family.

    Haley was originally homeless in the streets of Taipei, Taiwan until she was hit by a car. She was lucky to receive sponsorship and medical attention, but lost her left eye and had her hip joint removed. The Wylie’s had her transported to the San Francisco Bay Area to join their family and continue her recovery. Haley is now very active and loves hiking, going to the beach and playing with her many toys. Understandably, she still dislikes cars!

    Haley’s sister Hildee hails from Compton, CA. She was left outside a local shelter with a broken back, starving, and with other serious medical and dental issues. Despite her many challenges, Hildee has an amazing spirit and loves all people, dogs and even cats. She has since worked hard on her physical therapy and was determined to walk again. Hildee is now wheelchair free and enjoys her (several) short walks per day. Hildee is also an avid soccer fan and has become the unofficial team mascot for Ben’s daughter’s soccer team.

    We’re so happy to have these two ladies as our SALT Pets of the Month!

    On Thursday, June 8, New York-based SALT Partner Todd Betor will participate in the TEI New York Chapter’s M&A Tax Conference, held in person. The full day of programming will cover all aspects of M&A tax from both the buy side and sell side. Todd’s panel will discuss operational issues – state and local income, sales, and real estate transfer taxes including NOLs and sell side and buy side issues. 

    For more information and to register, click here.

    The Court of Appeals of Virginia, upholding the trial court’s decision, held that the successor to The C. F. Sauer Company could elect the manufacturer’s apportionment method for the first time on its amended tax return. By doing so, the court (preliminarily*) paved the way for qualifying taxpayers to take a wait and see approach to deciding on whether to elect Virginia’s alternative apportionment method for manufacturers is right for them. Virginia’s standard apportionment method prescribes a three-factor formula comprised of a taxpayer’s property factor, payroll factor, and double-weighted sales factor, whereas the manufacturer’s apportionment method for tax years beginning on or after July 1, 2014 is comprised of a single-sales factor. Considering that the manufacturer’s apportionment method is irrevocable for three taxable years, the flexibility in making such an election could be crucial for taxpayers that are uncertain of the impact that the alternative method could have when filing their original tax returns. To reach its conclusion, the court rejected the Department’s argument that certain provisions (e.g., the recapture provision) and phrases (e.g. any interest accrued would be “from the original due date for filing”) in the statute directly conflicted with the trial court’s ruling (and the taxpayer’s position) and showed the legislature’s intent to limit the election to the original tax return. Rather, the court found that there is no conflict and that, unlike other Virginia tax elections, the plain language of the statute “simply does not prevent a taxpayer company from electing to use the manufacturer’s apportionment method in a timely amended return.” Further support for the court’s reading was found in the “legislature’s liberal acceptance of amended returns generally elsewhere in the tax code.” *Virginia does not permit an appeal to the Supreme Court of Virginia as a matter of right in tax cases that do not involve the State Corporation Commission.

    Commonwealth of Virginia, Department of Taxation v. 1887 Holdings, Inc., Record No. 0598-22-2 (Va. Ct. App. May 23, 2023).

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state recently enacted significant tax legislation that decouples from the TCJA changes to IRC § 174, imposes sales tax on certain digital goods, and revises eligibility for the pass-through entity tax election?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On Thursday, June 1, Eversheds Sutherland Partner Jeff Friedman will present at the Villanova University Charles Widger School of Law’s First Annual State and Local Tax (SALT) Forum, which will bring together SALT thought leaders from around the country to discuss relevant policy, practice, procedural and technical issues. Hosted by the Villanova University Graduate Tax Program, the conference will cover the struggles of applying traditional tax laws to today’s digital economy. Jeff’s panel will discuss digital economy controversies.

    View and learn more about past and upcoming events and presentations.

    This week on the SALT Shaker Podcast, Eversheds Sutherland Associate Jeremy Gove is pleased to welcome Professor Richard Pomp, a state and local tax professor at both the University of Connecticut School of Law and NYU School of Law, to discuss the pending U.S. Supreme Court cert petition in Quad Graphics, Inc. v. North Carolina Department of Revenue.

    Professor Pomp recently filed an amicus brief with COST supporting Quad Graphics in its request to have the US Supreme Court review its North Carolina Supreme Court decision, which upheld the North Carolina Department of Revenue’s sales tax assessment rather than a use tax assessment. The decision was upheld despite Quad Graphics lacking sufficient nexus to be subject to the North Carolina sales tax.

    Jeremy and Professor Pomp discuss the Quad Graphics case and the cert petition in greater detail, and how it relates to two long-standing U.S. Supreme Court cases: McLeod v. J.E. Dilworth Co. and General Trading Co. v. State Tax Commission.

    To end the show, Jeremy proposes a pertinent question now that business travel is on the rise – have backpacks replaced briefcases?

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Recently, a New York Administrative Law Judge ruled that New York’s corporation franchise tax on receipts from broadband services and other internet access services is preempted by what federal statute?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    In this installment of A Pinch of SALT for Tax Notes State, Eversheds Sutherland Partner Tim Gustafson reviews California’s market-based sourcing regulation, various interpretations of and proposed amendments to the regulation offered over the past six years, and how the interpretations and amendments might affect taxpayers.

    Read the full article here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: The Supreme Court of Missouri recently held that replacement equipment used to provide telecommunications services was exempt from which state tax?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On February 27, 2023, the Washington Court of Appeals held that a provider of pharmacy services and pharmacy benefits services (PBM) to its affiliate’s enrollees met the insurance business exemption to the Business and Occupation Tax because its activities were at least functionally related to insurance business. The taxpayer fulfilled the PBM services required by an affiliate’s Washington State Health Care Authority contract, including managing the availability and payment of the enrollees’ pharmacy benefits on behalf of the affiliate.  Washington provides a B&O Tax exemption to “any person in respect to insurance business upon which a tax based on gross premiums is paid to the state.” The Department contended that the taxpayer would be exempt only if it provided services that were “functionally related” to its affiliate’s insurance business. The amounts it received from the affiliate for its services would then be exempt to the extent that the affiliate paid the Washington premiums tax. The court held that “where activities are required to be performed under the insurance contract in exchange for premium payments and a tax is paid on those premium payments the activities are at least functionally related to ‘insurance business’” under the insurance benefit exemption. Because the activities performed by the taxpayer were required under its affiliate’s HCA contract – and if performed by the affiliate would be insurance business activities – the taxpayer’s activities were functionally related to the insurance business and satisfied the exemption.

    Envolve Pharm. Sols., Inc. v. Washington Dep’t of Revenue, 524 P.3d 1066 (Wash. Ct. App. 2023).

    Eversheds Sutherland Partner Ted Friedman will participate in a SALT panel during the Wall Street Tax Association’s Spring Tax Conference in New York, NY on May 17. He will help cover a variety of SALT topics, including legislative developments, recent judicial decisions of interest, and Multistate Tax Commission projects to watch. 

    In addition, Eversheds Sutherland Partners Todd Betor and Charlie Kearns will help present a training for the TEI Nashville Chapter on May 17, covering a SALT legislative update, as well as pass-through entity workarounds.

    Also on May 17, members of the SALT team will present at the TEI Orange County Chapter SALT event.

    Speakers and topics include:

    • Michele Borens, Jeff Friedman – SALT Controversy Update
    • Jeff Friedman, Cyavash Ahmadi – Use Tax Considerations for Purchase of Software and Digital Products/Services
    • Michele Borens, John Ormonde – Local Tax Complications
    • Michele Borens, Jeff Friedman, Cyavash Ahmadi, John Ormonde – SALT Legislative Roundup

    Finally, Eversheds Sutherland attorneys Maria Todorova and Laurin McDonald will present an ethics session for the TEI St. Louis Chapter on May 18.

    View and learn more about past and upcoming events and presentations.

    On January 12, 2023, the Louisiana Board of Tax Appeals held that sales of remote personal electronic storage capacity services were not subject to the New Orleans French Quarter Economic Development District sales and use tax. A federal statute, the Internet Tax Freedom Act, prohibits states and political subdivisions from imposing taxes on Internet access. Effective November 1, 2007, Congress expanded the ITFA’s definition of Internet access to include, among other items, “personal electronic storage capacity” that is provided independently or not packaged with Internet access. The taxpayer offers a service that allowed users, via an Internet connection, to upload their personal digital content to the taxpayer’s remote servers and access their personal digital content from any of their Internet-connected devices. The taxpayer provides the storage service at no cost, but also offers customers the option to pay a subscription fee for additional storage capacity. The Board held that under the plain meaning of the ITFA, the storage service provided subscribers with “personal electronic storage capacity.” Therefore, the storage service is Internet access and not taxable. The Board further noted that services are generally not taxable, unless specifically enumerated. The storage service was thus also not taxable because it was not specifically enumerated.

    Apple Inc. v. Samuel, Dkt. No. L01283 (La. Bd. Tax App. Jan. 12, 2023).

    On December 29, 2022, the District of Columbia Court of Appeals held that transfer and recordation taxes were due on the portion of consideration from a sale of land and related improvements related to reversionary interests in land improvements. The taxpayers argued that the acquisition consisted of two distinct steps: (1) taxable land sales, via special warranty deeds; and (2) non-taxable terminations of ground leases, via lease termination memoranda.  The District generally does not tax either the formation or termination of ground leases of less than thirty years. The taxpayers allocated a portion of the purchase price to the land based on the assessed value for real property taxes and paid transfer and recordation taxes on that amount. The taxpayers asserted that the remainder of the purchase price was allocated to the non-taxable terminations of ground leases. Following an audit, the District contended that the acquisition was a single taxable transaction in which the land and buildings transferred to the purchaser and the pre-existing ground leases terminated.

    Ultimately, the Court of Appeals held that the taxpayers had not accounted for – and owed tax on – reversionary interests in the land improvements transferred between parties.  Because the consideration attributed by the taxpayers to the ground lease terminations also included a portion attributable to the taxable reversionary interests in land improvements, the Court of Appeals remanded the case to the Superior Court to resolve the factual issue.

    District of Columbia v. Design Ctr. Owner (D.C.) LLC, 286 A.3d 1010 (D.C. 2022).

    On February 6, 2023, the Texas Comptroller of Public Accounts released a memorandum summarizing the internal-use software regulations related to the state’s franchise tax research and development credit and the sales tax R&D exemption. The comptroller significantly revised these regulations in 2021 and then reversed the revisions in 2022, causing confusion among members of the state’s tech industry.

    In this installment of A Pinch of SALT for Tax Notes State, Eversheds Sutherland attorneys Jeff Friedman, Mary Monahan and Dennis Jansen examine the recent memorandum and discuss what’s next for the Texas R&D credit.

    Read the full article here.

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Recently, a bill was introduced in the New York state legislature that would impose a delivery surcharge on any item purchased online and delivered within New York City. How much is the delivery surcharge for?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On March 10, 2023, the Supreme Judicial Court of Massachusetts held that capital gains resulting from the sale of an urban redevelopment project were not subject to Massachusetts personal income tax. As an incentive for private entities to invest in constructing, operating, and maintaining urban redevelopment projects, Massachusetts exempts these entities “from the payment of any tax, excise or assessment to or from the commonwealth … on account of a project.” The court concluded that the exemption extends to capital gains from the sale of such urban redevelopment projects because the gains are “on account of” the project. The court relied on an analysis of the statute’s plain language, finding that “on account of” the project meant “because of” the project. The court concluded that capital gains – the increased value of the properties – are causally related to the project and thus exempt. The court’s conclusion was buttressed by the statute as a whole and its legislative history, which demonstrated that the tax exemption was established to stimulate the investment of private capital. The court observed that “[a]chieving a capital gain from the sale of [the] project is often a significant driver for real estate investors[.]”

    Reagan v. Commissioner of Revenue, 203 N.E.3d 1150 (Mass. 2023).

    On Wednesday, May 10, members of the Eversheds Sutherland SALT team, including Partners Todd Betor, Michele Borens, Jeff Friedman, Ted Friedman, Tim Gustafson and Maria Todorova, will present on a variety of state and local tax topics at the TEI Denver state and local tax seminar.

    Speakers and topics include:

    • Jeff Friedman, Maria Todorova – State and Local Tax Update
    • Todd Betor, Ted Friedman – State Tax Issues in M&A
    • Michele Borens, Tim Gustafson – Use Tax Considerations for Purchases of Software and Digital Products/Services
    • Jeff Friedman, Todd Betor, Michele Borens, Ted Friedman, Maria Todorova – Why State and Local Tax is Awesome!

    Meet mama Dory! This precious tabby cat and her league of kittens are under the careful watch of Maria Biava, Senior Managing Associate General Counsel at Verizon.

    For the last several years, Maria has been on a mission to rescue feral cats from a Philadelphia neighborhood once known for housing local breweries. Named after a specific beer hop, Dory (short for Dorado) came to be in Maria’s care after Maria found her in the parking lot of a series of townhomes.

    A vet appointment revealed Dory was pregnant, so Maria brought her home to give her shelter and help find homes for her kittens!

    Dory and her cuddly kiddos are available for adoption in the Philadelphia area. If you’re interested in providing a forever home, email SALTonline@eversheds-sutherland.com.

    We’re so glad to feature Dory and her kittens as the May SALT Pets of the Month!

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state’s court of appeals recently held that meter-reading services are non-taxable data processing services exempt from retail sales tax?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    This week, Eversheds Sutherland Partners Liz Cha, Maria Todorova and Eric Tresh will participate in panel sessions during TeleStrategies’ 2023 Communications Taxation Conference in New Orleans, LA. The conference addresses the challenging and complex domain of telecommunications taxation, regulatory compliance and fees.

    On May 4, Liz and Eric will provide an update on key litigation and controversies involving the taxation of telecommunications services, including the application of telecommunications taxes to hardware and software, court interpretations of the limitations of the Internet Tax Freedom Act and the unbundling of taxable and nontaxable products and services. 

    Also on May 4, Eric will participate in a panel that looks at how to create and implement bundled pricing for tax and regulatory purposes. Eric will help review issues associated with market pricing and elasticity of demand, minimizing taxes, and risk management.

    Finally, on May 5, Maria will help discuss the complexities of gross receipts taxes, as well as new taxes and fees applicable to the communications industry. In addition, she will highlight issues and controversies related to these taxes.

    View and learn more about past and upcoming events and presentations.

    On April 18, 2023, the Supreme Court of Missouri affirmed the Administrative Hearing Commission’s (AHC) decision that replacement equipment used to provide telecommunications services was exempt from use tax under the State’s manufacturing exemption in effect in 2011 and 2012.

    Like most States, Missouri exempts from sales and use tax equipment used in manufacturing or producing a product or taxable service ultimately intended to be sold at retail. Under Missouri law, telecommunications services are taxable services when sold at retail. In 2018, the legislature amended the sales and use tax statute to make clear that equipment used in the production of telecommunications services qualified for the manufacturing exemption.  The amendment expressly provided that it was not intended to change the law and was only a clarification of existing law. 

    This case involved purchases of telecommunications equipment by Charter Communications Entertainment I, LLC (CCE I) in 2011 and 2012 (prior to the statutory amendment). The court found that the equipment qualified for the exemption as equipment used in “manufacturing” and that CCE I had sufficiently shown that its replacement equipment was “used directly” in manufacturing telecommunications services. In rendering its decision, the court found that the provision of telecommunications services constituted manufacturing because it transforms an input (the caller’s voice) into an output with a separate and distinct value from the original. It also agreed with the AHC that CCE I was not also required to establish that its replacement equipment is “substantially used” in manufacturing—relevant because CCE I used its equipment not only to provide telecommunications service but also cable and Internet service as well.

    Accordingly, the court affirmed the AHC’s decision, awarding CCE I with a $1.5 million refund on use taxes paid on replacement equipment purchased in 2011 and 2012.

    Charter Commc’ns Ent. I, LLC v. Dir. of Revenue, Mo., No. SC99517 (April 18, 2023).

    In the latest episode of the SALT Shaker Podcast, Eversheds Sutherland Associate Jeremy Gove is joined by SALT Partner Tim Gustafson to discuss the ins and outs of the one-of-a-kind settlement process in California.

    Before diving into specific considerations for taxpayers, Jeremy and Tim provide an overview of the settlement process itself, including a discussion of the agencies involved, the oft-surprising rules in play, and the impact on controversy generally.

    Their conversation ends with an overrated/underrated question pertaining to casual office wear – how do you feel about jeans?

    You can read the article Tim referenced, co-authored by Partner Liz Cha, in Tax Executive here.

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:


    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: According to the Illinois Independent Tax Tribunal, what type of fuel is not eligible for the expanded temporary storage exemption under the Retailer’s Occupation Tax?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    Assembly Bill 6008, introduced on March 30, 2023, would impose a $3 delivery surcharge on any item purchased online and delivered within New York City. The person selling the item to be delivered within New York City is liable for the surcharge and the surcharge “shall be passed along to the purchaser and separately stated on any receipt” provided to the purchaser.

    Deliveries of food, diapers, baby formula, drugs and medicines are exempt from the surcharge under this proposed legislation. If enacted, the surcharge would take effect on January 1, 2025.

    The North Carolina Department of Revenue issued a letter ruling that concluded an online platform owner and administrator was not a marketplace facilitator because it neither collected nor otherwise processed payment for any items sold on the website. The taxpayer requesting the ruling was an affiliate of original equipment manufacturers “OEMs), and operated a platform whereby the OEMs sold parts to established customers. The taxpayer administered the electronic infrastructure of the platform and provided connection support. The taxpayer did not receive any compensation for the use of the platform or for orders received through the platform. An independent entity processed all customer payments, or made payment processing services available.

    North Carolina’s definition of “marketplace facilitator” under N.C. Gen. Stat. § 105-164.3(133) has two parts: (1) listing or otherwise making available for sale a marketplace seller’s items through a marketplace owned or operated by the marketplace facilitator; and (2) collects the sales or purchase price of a marketplace seller’s items, processes payment, or makes payment processing services available to purchasers. The Department concluded that while the taxpayer satisfied the first part, it did not meet the second part. Neither the taxpayer nor its affiliates collected or processed payments; instead, an unrelated entity handled that function.

    N.C. Private Letter Ruling No. SUPLR 2022-0008 (Dec. 9, 2022).

    Eversheds Sutherland is a proud sponsor of TEI’s Region 10 43rd Annual Tax Conference, held in Huntington Beach, CA from April 26 to 28. Eversheds Sutherland Partner Michele Borens will help provide updates in the taxation of the digital economy and cryptocurrency, and Partner Jeff Friedman will discuss a current state of the states.

    Find out more information and register here.

    During COST’s 2023 Income Tax Conference & Spring Audit Session, Eversheds Sutherland Partner Maria Todorova will present on hot topics in transfer pricing and intercompany transactions, discussing transfer pricing methodologies employed, how to counter aggressive assertions of profit shifting, and risks and opportunities around intercompany transactions and transfer pricing.

    Finally, on April 27, Eversheds Sutherland attorneys Todd Betor, Jeremy Gove and Chelsea Marmor will lead a state litigation update during the TEI Minnesota Chapter’s 37th Annual President’s Seminar.

    View and learn more about past and upcoming events and presentations.

    Say hello to Diego! Adopted in 2022, this 13-year-old certified good boy is owned by Brandi Drake, Senior Director of Strategic Tax at Charter Communications.

    When he first came home with Brandi and her husband, Matthew, he looked at them for permission for everything – except for one thing. Despite being a senior pup, he fought his way onto their bed, laid down, and refused to move. With the help of some added steps, he has snoozed there every night since!

    He loves all treats, but is particularly fond of dental sticks and doggie ice cream. In fact, he will not go to bed until he gets his nightly dental stick!

    Beyond his love for sleeping in his humans’ bed, he enjoys his daily walks and belly rubs. He will also destroy any new toy within minutes, and makes sure to bring Brandi his favorite ball every time she gets home from work and greets him.

    We are thrilled to feature Diego as our April pet of the month!

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state legislature recently introduced a bill that would amend the state income tax return to let filers register to be an organ donor?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    The California Court of Appeal held that the Los Angeles County Assessor erred by failing to remove the value of certain nontaxable intangible assets when valuing a hotel for property tax purposes. Intangible assets are generally exempt from property tax in California. In valuing the hotel, the Assessor used the income valuation approach, which looks to the current and future income stream associated with the property in order to calculate its present, taxable value. The taxpayer argued that in calculating the income stream, the Assessor failed to remove income associated with three intangible assets: a subsidy from the City of Los Angeles valued at $80 million (directly tied to the City’s hotel tax collected on the rooms); a onetime upfront payment made by the hotel’s operators, Ritz Carlton and Marriott, of $36 million dollars for the right to operate the hotel; and “hotel enterprise assets,” including “flag and franchise, food and beverage, and assembled workforce,” valued at $34 million dollars. 

    First, the Assessor argued that the $80 million subsidy was not exempt from tax because it “runs with the land and is associated with the ownership of the property.” Relying on Elk Hills Power, LLC v. Board of Equalization, 57 Cal. 4th 593 (2013), the Court rejected the Assessor’s argument, finding that the correct test is whether “the asset is directly necessary to the productive use of the property, whether it is intangible, and whether it can be valued.”  Because all three of these requirements were met, the Court found the subsidy was not taxable and must be removed from the income stream.

    Second, turning to the $36 million dollars paid by Ritz Carlton and Marriott for the right to operate the hotel, the Court found that the Assessor erred by treating the payment as income attributable to the hotel. Rather, the Court concluded, it “was not income to the hotel; it was a price break the managers gave the hotel on payments from the hotel.” 

    Third, the Court found that the income attributable to the “hotel enterprise assets” had to be removed from the income stream. The Assessor argued that the value of these assets, owned by the hotel’s operators, had already been removed from the income stream by deducting the fees paid to the operators under the so-called “Rushmore” approach.  Following SHC Half Moon Bay, LLC v. County of San Mateo, 226 Cal. App. 4th 471 (2014), the Court found that this method failed to account for the value of these assets, reasoning that if the “fee were so high as to account completely for all intangible benefits to a hotel owner,” the owner would have no reason to pay it.

    Olympic & Georgia Partners, LLC v. County of Los Angeles, 2023 Cal. App. LEXIS 263 (2023).

    The Washington Court of Appeals held that a company’s collection of data from electric and natural gas meters constituted data processing services exempt from the retail sales tax. The taxpayer collected data from meters used by an energy company’s customers, converted the data into a usable form, and transmitted the data to the energy company so that it could be used for customer billing.

    Washington law defines data processing services (an exception from taxable digital automated services) as “primarily automated service[s]…where the primary object of the service is the systematic performance of operations by the service provider on data supplied in whole or in part by the customer to extract the required information in an appropriate form or to convert the data to usable information.”  The Department contended that the taxpayer’s services did not constitute exempt data processing because the primary purpose or true object of the services was the collection and transmission of data—not its processing. The taxpayer disagreed, arguing that the primary purpose of its services was the manipulation and conversion of the data into information usable for its customers, as opposed to the transmission of the data itself.

    Relying on precedent, the Court of Appeals concluded that the company was primarily providing data processing services. The court focused on the distinction between services involving the mere transmission of data, versus those involving manipulation or conversion of the data. Because the company (1) converted the data into an appropriate form in a process that took several hours, (2) quantified the information, (3) identified patterns in the information, and (4) without the company’s conversion the data was useless to the customer, the court held that the manipulation and conversion of the data was the true purpose of the transaction. As a result, the court concluded that the company’s services met the statutory definition of data processing and were therefore exempt from retail sales tax. 

    Landis+GYR Midwest Inc. v. Washington Department of Revenue, Case No. 56877-2-II, Wash. Ct. App. 2d  (March 28, 2023).

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state recently held that taxpayers are not entitled to a set interest rate for their refund because no consistent interest rate has been provided on all refunds?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    This week on the SALT Shaker Podcast, Eversheds Sutherland Associate Jeremy Gove welcomes Chris Emigholz, Chief Government Affairs Officer at the New Jersey Business & Industry Association (NJBIA), to the show.

    First, they cover Chris’ role at NJBIA and what NJBIA does for New Jersey taxpayers. They then dive into a meaty tax discussion of current issues and legislative proposals in the state, including corporate tax rate reduction, the state’s remote work tax policies, unemployment insurance payroll taxes, and proposed changes to how New Jersey taxes GILTI.

    Jeremy picks his latest overrated/underrated question from a large menu – how do you feel about diners?

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: During Georgia’s 2023 legislative session, which bill would have increased the tax on tobacco and vaping products by 20 cents?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    In a recent unreported decision, the Maryland Appellate Court held that taxpayers were not entitled to a 13 percent interest rate on a judgement after the legislature lowered the state’s refund interest rate during the pendency of the taxpayers’ appeal.

    The taxpayers successfully challenged the limits that Maryland state law placed on the tax credit for income taxes paid to other states. The law authorized a tax credit against state income taxes but not county income taxes. While the taxpayers’ claim was pending, the state legislature lowered the interest rate for tax refunds from 13 percent to the 2015 prime lending rate. The court characterized the lower interest rate as “sound fiscal planning” because of the estimated $200 million in potential refund claims that would be paid if the taxpayers prevailed with their claim.

    The court held that the legislature set up the tax refund interest rate on “shifting sands,” and that the state has never consistently provided interest on all refunds nor locked the interest rate in place. Accordingly, the taxpayers could not reasonably rely on or have a settled expectation of a specific rate.

    The court also noted that this is the fourth appeal to reach an appellate court in this controversy, deeming it a “threequel.”

    Wynne v. Comptroller of Maryland, Md. App. No. 1561 (March 15, 2023).

    During the 2023 legislative session, the Georgia General Assembly passed significant tax legislation including decoupling from IRC § 174, imposing sales tax on certain digital goods, and revising eligibility for the pass-through entity tax election.

    March 29, 2023 was “Sine Die” or the 40th and final legislative day of the 2023 session. Both chambers of the General Assembly passed the below bills before the end of the session. These bills are now transmitted to the Governor, who can sign or veto the legislation within 40 days after the end of the legislative session. If the Governor fails to take any action, the legislation becomes law upon the expiration of the 40-day period (May 8).

    Read the full Legal Alert here.

    In this week’s episode of the SALT Shaker Podcast, Eversheds Sutherland Associate Jeremy Gove welcomes a fellow New York resident to the show, Partner Todd Betor. Todd recently re-joined the SALT practice in January.

    Jeremy and Todd delve into a key area of Todd’s practice, SALT issues arising as a result of mergers, acquisitions, or dispositions.

    Jeremy and Todd’s conversation covers a few key reasons why it’s important for SALT advisors to be involved in a deal, such as the potential disconnect between state and federal tax treatment of certain transactions. In addition, they talk about why it’s important to review major SALT considerations that go into a deal, and how the consideration of SALT issues can affect tax savings.   

    They conclude with this week’s overrated/underrated consideration – Nashville hot chicken.

    As referenced in this week’s show, you can read more of Todd’s key takeaways from his presentation at TEI’s 2023 M&A Seminar here.

    Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

    Listen now:

    Subscribe for more:

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state’s Department of Revenue recently released guidance specifying that sales of “canned” computer software are taxable sales of tangible personal property regardless of the form in which the software is transferred or transmitted?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On Wednesday, March 29, Eversheds Sutherland attorneys Eric Coffill and Chelsea Marmor will participate in the TEI Philadelphia Chapter’s virtual East/West Summit, covering SALT updates on both coasts.

    In addition, on Thursday, March 30, Eversheds Sutherland Partners Michele Borens, Jeff Friedman and Tim Gustafson will present at the TEI Virginia Chapter’s SALT Day, covering a legislative update as well as use tax considerations for purchasing electronically delivered software, SaaS, digital services and digital content.

    View and learn more about past and upcoming events and presentations.

    The unitary combined reporting method for state corporate income taxation has been adopted by an increasing number of states. While combined reporting requirements vary significantly from state to state, nearly all combined reporting regimes require or allow a water’s-edge method that limits the members of a group return to entities that are incorporated in the United States and meet other combined reporting requirements. 

    The water’s-edge combined reporting method makes sense for many taxpayers and stems from criticisms and litigation aimed at the worldwide combined reporting method. Problems with worldwide combined reporting include compliance challenges associated with varying accounting methods required by other countries, conversion of foreign currencies, and even the lack of available data associated with non-U.S. entities.

    There are instances when a domestic incorporated entity is largely engaged in business outside the United States. To help solve this problem, many states adopted the Pareto principle, which states that “for many outcomes, roughly 80 percent of consequences come from 20 percent of causes (the ‘vital few’).” Application of an 80/20 rule in the context of water’s-edge combined reporting requires taxpayers to include in a water’s-edge return those foreign entities that conduct at least 20 percent of their business in the United States (an inbound 80/20 company), and exclude those domestic corporations that conduct at least 80 percent of their businesses outside the United States (an outbound 80/20 company).

    In this installment of A Pinch of SALT for Tax Notes State, Eversheds Sutherland attorneys Jeff Friedman, Cyavash Ahmadi and Laurin McDonald describe 80/20 rules used by states in the context of water’s-edge combined reporting and the compliance issues that can arise as a result.

    Read the full article here.

    The Texas Comptroller of Public Accounts amended its franchise tax apportionment rule, as published in proposed form in the March 10 issue of the Texas Register. The rule, which is now final, discards the “receipt-producing, end-product act” test in light of Eversheds Sutherland’s litigation in Sirius XM Radio, Inc. v. Hegar. Taxpayers should consider the new rule and potentially filing refund claims.

    Read Eversheds Sutherland’s description of the Comptroller’s now-adopted amendments here. Eversheds Sutherland attorneys will continue to monitor any developments.

    48 Tex. Reg. 200 (January 20, 2023) available at:

    https://www.sos.state.tx.us/texreg/pdf/backview/0120/0120prop.pdf.

    Meet our March SALT Pets of the Month, 12-year-old Sunny and 5-year-old Lily! These lovely ladies belong to David Weiner, Vice President and Tax Counsel for A&E Television Networks. 

    Sunny and Lily were both rescued as adult pups and were happy to join David’s family in 2017 and 2020. Sunny, whose coat is an adorable wiry mix of orange and white, and Lily, who has black and white markings, are both mixed breeds and around 50 pounds each. They get along like two peas in a pod!

    Sunny was found in Louisiana, which must have been hard for her since she hates the heat.  Sunny wants to stay outside all day (and night!) during the winter. The colder the temps, the better! Prior to the pandemic, Sunny volunteered at schools and government offices as a certified therapy dog with David’s wife, Paula. She offered emotional support and stress relief.

    Meanwhile, Lily was an owner surrender from South Carolina. Prior to her adoption, Lily had not spent much time indoors, but she has quickly gotten used to the good life, especially time on the couch. Lily can often be seen lounging on David’s bed, as well.

    Around December 2021, Sunny began dragging one of her back legs. She was diagnosed with degenerative myelopathy, which is a genetic condition that affects dogs’ spinal cords. It causes progressive loss of coordination and weakness, but thankfully, the condition has not spread to her front legs. Sunny has adapted very well and uses a dog wheelchair outside. Neighbors and acquaintances are very supportive of her and often stop to inquire about her health or just give her scratches! 

    The girls are beloved by David and Paula’s children Sabrina, age 17, and Cole, age 13.

    We’re so happy to welcome them to the SALT Pet of the Month family! 

    Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

    We will award prizes for the smartest (and fastest) participants.

    This week’s question: Which state legislature recently excluded digital advertising taxes from the governor’s appropriation bills?

    E-mail your response to SALTonline@eversheds-sutherland.com.

    The prize for the first response to today’s question is a $25 UBER Eats gift card. This week’s answer will be posted on Saturday in our SALT Shaker Weekly Digest. Be sure to check back then!

    On February 24, 2023, the Wisconsin Tax Appeals Commission upheld the Department’s assessment that Skechers’ licensing transaction with its wholly owned subsidiary, Skechers USA Inc. II (SKII), lacked a valid business purpose and economic substance. On the formation of SKII, Skechers entered into a license agreement with its subsidiary that generated significant royalty deductions, which Skechers claimed on its Wisconsin tax returns. The Department disallowed the royalty expense paid by Skechers to SKII, assessing that the intercompany transactions between Skechers and SKII were sham transactions.

    In its decision, the Commission agreed with the Department, finding that Skechers was unable to show that these intercompany transactions had a valid business purpose other than tax avoidance. While the Commission acknowledged that there may be some valid, non-tax, intellectual property related benefits to the formation of SKII, none of these benefits were considered by Skechers before the formation of SKII. The Commission further found that the royalty payments had no economic substance as Skechers failed to provide any documentary evidence showing a change to business practices, profitability or intellectual property before and after the creation of SKII and the transactions at issue.

    Therefore, the Commission upheld the Department’s assessments, finding that Skechers failed to present persuasive evidence or testimony that it had a valid business purpose for entering into the licensing transaction with SKII that generated royalty deductions claimed on its Wisconsin tax returns and that the licensing transaction had economic substance.

    Skechers USA Inc. v. Wisconsin Department of Revenue, docket numbers 10-I-071 and 10-I-072, in the State of Wisconsin Tax Appeals Commission.

    The Illinois Department of Revenue (IDOR) released a general information letter outlining the applicability of Illinois Retailers’ Occupation Tax (ROT) on computer software licenses and maintenance agreements.

    The letter states that sales of “canned” computer software are taxable retail sales in Illinois and are considered to be tangible personal property regardless of the form in which it is transferred or transmitted. However, if the computer software consists of “custom” computer programs, then the sales of such software may not be taxable retail sales. In addition, if the computer software, including canned software, is licensed and the license agreement meets the specified criteria in 86 Ill. Adm. Code § 130.1935(a)(1) (distinguishing licenses from sales a retail), neither the transfer of the software license nor the subsequent software updates are subject to ROT. With respect to the software maintenance agreements, the letter provides that taxability depends on whether the charges for the agreements are included in the selling price of the tangible personal property. The IDOR notes that software maintenance agreements are not taxable if the agreements for the maintenance of tangible personal property are sold separately from the tangible personal property. However, the service providers would incur use tax based on their cost price of tangible personal property transferred to customers incident to the completion of the maintenance service.  On the other hand, if the charges for the software maintenance agreements are included in the selling price of the tangible personal property, the charges are part of the gross receipts of the retail transaction and subject to ROT, but no ROT is incurred on the maintenance services or parts when the repair or servicing is performed.

    Ill. Dep’t of Revenue, Gen. Info. Ltr. ST-22-0023-GIL (Oct. 19, 2022) (released Feb. 2023).

    On March 15, 2023, the two houses of the New York State Legislature released their respective amendments (Senate Bills S.4008 and S.4009, Assembly Bills A.3008 and A.3009, collectively the Amendments) to New York Governor Kathy Hochul’s Fiscal Year 2024 Executive Budget (the Budget Bill) (see our prior legal alert). While the Amendments make notable changes to the Budget Bill, outlined below, which tax proposals the Amendments do not include is equally important to the future of New York’s tax climate. 

    Read the full Legal Alert here.