By Douglas Upton and Andrew Appleby

The New Jersey Tax Court determined that credit card issuers must source to New Jersey all of their interest and interchange fee receipts, and half of their credit card service fees, from New Jersey accountholders. The Tax Court concluded that the Division of Taxation’s regulations required the taxpayers to source their interest receipts based on the location of their cardholders, rejecting the taxpayers’ argument that the interest receipts were not so integrated with a business carried on in New Jersey as to acquire a New Jersey tax situs. The Tax Court further determined that credit card interchange fees constituted interest for corporation business tax purposes, noting that the taxpayers treated the interchange fees as an original issue discount for federal income tax purposes and that the interchange fees amounted to a fee charged for the use of money. The Tax Court also held that the Division of Taxation’s 25/50/25 sourcing regulation (i.e., sourcing 25% of receipts to the where the service originates, 50% to where the service is performed, and 25% to where the service terminates) applied to source 50% of credit card service fees from New Jersey cardholders to New Jersey because the service was performed where the cardholder received the benefit of such service, in New Jersey.  Finally, the Tax Court found that the Division of Taxation could not apply the throwout rule to any of the taxpayers’ receipts because the Division of Taxation failed to point to any state that would not have jurisdiction to tax the taxpayers’ sales if New Jersey’s economic nexus standard applied.  Bank of Am. Consumer Card Holdings v. N.J. Div. of Taxation, __ N.J. Tax __, 2016 WL 5899786 (N.J. Tax. Ct. Oct. 6, 2016).