By Mary Alexander and Timothy Gustafson
The Indiana Department of Revenue applied the State’s throwback rule to an Indiana company’s sales to California customers based on a determination that the taxpayer was not subject to tax in California due to P.L. 86-272. Under Indiana law, a sale is attributed to Indiana for sales factor apportionment purposes if the taxpayer is not taxable in the state of the purchaser and the property is shipped from a place of storage in Indiana. According to the Department, this means “an Indiana company’s income derived from its sales to other states is thrown back to Indiana for income tax purposes when the Indiana company’s business activities in those states are protected and are not taxable pursuant to P.L. 86-272.” While the taxpayer provided evidence of (1) its California tax filings for the years at issue, (2) an independent contractor agreement with an individual located in California, and (3) tangible property in California, it also stated in its California returns that it was not doing business in the state. The Department determined the “[t]axpayer’s supporting documentation show[ed] that its business activities in California did not go beyond solicitation[.]” Denying the taxpayer’s protest, the Department concluded that the taxpayer had not met its burden of proof and agreed the throwback of the taxpayer’s sales to customers located in California was appropriate. Ind. Dep’t of Revenue, Letter of Findings No. 02-20140293 (Dec. 4, 2014).