Noteworthy Cases

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In a recent decision by the Washington Supreme Court, the court found that a taxpayer had nexus in Washington for B&O tax purposes even though the taxpayer’s sole presence in the state consisted only of infrequent visits by sales employees to customers. Lamtec Corp. v. Dep’t of Revenue, Docket No. 83579-9 (Wash. Jan. 20, 2011) (en banc). In holding that Lamtec had B&O nexus in Washington, the court stated that, “to the extent there is a physical presence requirement, it can be satisfied by the presence of activities within the state” (emphasis added).

Lamtec, a manufacturer of insulation and vapor barrier in New Jersey, sold its products wholesale to customers via telephone. Lamtec had no facilities, offices, or employees located in Washington. However, several times a year, Lamtec sales employees visited customers in Washington to provide information regarding Lamtec products. The sales employees did not solicit sales. The Washington Department of Revenue (Department) asserted that Lamtec had nexus in Washington and issued an assessment to Lamtec for the period in which it was not registered.  Lamtec challenged the assessment.Continue Reading Washington Supreme Court Finds Nexus, Confuses the Rest of Us

The California Board of Equalization (BOE) recently issued a decision holding that dividends received by an out-of-state corporate taxpayer were business income because the dividend payor played an integral and operational role in the taxpayer’s unitary business.  The BOE also denied the taxpayer’s dividends received deduction (DRD) under Cal. Revenue & Tax Code (R&TC) § 24402. Appeal of Rio Doce Ltd., No. 402204 (Cal. Bd. of Eq. Nov. 17, 2010) (released Jan. 17, 2011).Continue Reading California Double Whammy: Dividends Are Apportionable Income, Not Deductible

On January 26, 2011, the U.S. District Court for the District of Colorado granted the Direct Marketing Association’s (DMA) motion for a preliminary injunction preventing the Colorado Department of Revenue (Department) from enforcing its sales tax notice and reporting regime enacted in 2010 and set to become effective January 31, 2011. The Direct Mktg. Ass’n v. Roxy Huber, Civil Case No. 10-cv-01546-REB-CBS, Order Granting Motion for Preliminary Injunction (D. Colo. Jan. 26, 2011). The DMA’s amended complaint, which provided the basis for the injunction, alleged constitutional violations under the Commerce Clause, the First Amendment right to free speech of businesses and consumers, the right to privacy of Colorado residents, and the deprivation of the value of proprietary customer lists without due process or fair compensation. The preliminary injunction was premised only on the Commerce Clause claims and left open the consideration of the other claims in the amended complaint.

The court concluded that the DMA had demonstrated the four requirements to be granted a preliminary injunction: 

  1. The plaintiff has a substantial likelihood of success on the merits; 
  2. The plaintiff has an irreparable injury; 
  3. The injury to the plaintiff outweighs the injury to the defendant; and 
  4. The preliminary injunction is in the best interests of the public.

Continue Reading Oh No You Didn’t! Colorado Enjoined From Enforcing Reporting Requirements

On January 31, 2011, the California Supreme Court issued its long-awaited decision in California Farm Bureau Federation, et al. v. State Water Resources Control Board, No. S150518 (Cal. Jan. 31, 2011), which addressed the constitutionality of an annual levy imposed by the State Water Resources Control Board. While the court concluded that the statute imposing the water rights levy imposed a fee (not a tax) and was constitutional on its face, the court remanded to the Court of Appeals to determine whether the regulation implementing the statute was unconstitutional on an as-applied basis.Continue Reading California Supreme Court Floats New Tax/Fee Decision

On October 21, the Supreme Court of Kentucky overturned the denial of a taxpayer’s document request under Kentucky’s Open Records Law. Dep’t of Revenue v. Wyrick, Case No. 2008-SC-000468-DG (Ky. 2010). Wyrick, an attorney representing a newspaper company on a tax refund claim before the Board of Tax Appeals, sought numerous documents from the Department of Revenue through a pretrial discovery request. When the Board denied Wyrick’s pretrial discovery request, Wyrick requested many of the same documents from the Department under Kentucky’s Open Records Law. The Department denied most of the request, citing the civil litigation limit in Ky. Rev. Stat. Ann. § 61.878(1) (2010), which provides that “no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.”Continue Reading Kentucky Supreme Court Tells Department of Revenue: ‘Open Sesame’

The Iowa Supreme Court and Iowa Department of Revenue issued interesting opinions that continue to expand corporate income tax nexus arguably beyond the limitations of the Commerce Clause of the U.S. Constitution.

The Iowa Supreme Court held that physical presence is not a required ingredient of the secret recipe for substantial nexus in the corporate income tax context. KFC Corp. v. Iowa Dep’t of Revenue, No. 09-1032 (Iowa Dec. 30, 2010). The Department issued a corporate income tax assessment to KFC Corp., which had no employees or property in Iowa. KFC’s only connection with Iowa was that it licensed the KFC intangible property to independent franchisees operating or conducting business in Iowa. The Iowa Supreme Court held that, despite this tenuous connection and no physical presence, KFC had substantial nexus in Iowa.Continue Reading Iowa Supreme Court Deep-Fries Commerce Clause

When is an insurance company “subject to” premium tax? Recently, the Indiana Tax Court answered this question in United Parcel Service, Inc. v. Indiana Department of Revenue, 49T10-0704-TA-24 (December 29, 2010), concluding that an insurance company is “subject to” premium tax when it is placed under the authority, dominion, control, or influence of the tax, and not simply when it is required to pay the tax. 

In United Parcel Service, the Indiana Department of Revenue had determined that UPS should have included the income of two affiliated foreign reinsurance companies in its Indiana worldwide unitary corporation income tax return. UPS, however, maintained that its affiliated foreign reinsurance companies should be excluded because the Indiana statutes provided that there is no income tax on the adjusted gross income of insurance companies “subject to” the Indiana gross premium tax.Continue Reading Inclusion of Insurance Company in Unitary Return – When Is an Insurance Company “Subject to” Premium Tax?

The Arizona Superior Court denied Home Depot a bad debt deduction related to customer credit card transactions. Home Depot USA Inc. v. Arizona Department of Revenue, TX 2006-000028 (Dec. 10, 2010). The court reviewed three conditions that must be met under Arizona law in order for a bad debt to be deducted: 

  1. The transaction upon which the bad debt deduction is being taken was reported as taxable;
  2. The debt arose from a debtor-creditor relationship based upon a valid and enforceable obligation to pay a fixed or determinable sum of money; and 
  3. All or a portion of the debt is worthless. Id.

In determining whether Home Depot could claim the deduction associated with its private label credit card transactions, the court relied on a decision of the Arizona Appeals Court and interpreted the first and second conditions as  limited only to those persons who made the sale and originally reported the tax. Id. (DaimlerChrysler Services North America, LLC v. Arizona Dep’t. of Revenue, 210 Ariz. 297, 302 (Ariz. App. 2005)). While Home Depot made the sales and reported the tax, it did not incur the bad debt directly. The finance company paid Home Depot the amount of each transaction, less a negotiated percentage that included the overall cost of bad debt for all transactions.Continue Reading Retailers, Finance Companies and Sales Tax Refunds on Bad Debt – Heads I Win, Tails You Lose

The Washington Court of Appeals has held that a statutory amendment barring the filing of 24 years of business and occupation (B&O) tax refund claims violates a taxpayer’s due process rights and is therefore unconstitutional. Tesoro Refining & Mktg. Co., No. 39417-1-II (Wash. Ct. App. Dec. 21, 2010). Tesoro Refining and Marketing Company (Tesoro), a Delaware corporation, operates an oil refinery in Washington. Tesoro manufactures and sells bunker fuel (a residual fuel oil that remains after gasoline and distillate fuel are extracted from crude oil) primarily to vessels engaged in foreign commerce for consumption outside the territorial waters of the United States. 

Prior to 2009, Washington law permitted a company that manufactured and sold a qualifying fuel (such as bunker fuel) to deduct amounts derived from the sale of the fuel against its manufacturing B&O tax liability. Tesoro did not take the deduction on its originally filed tax returns and later filed a refund claim for B&O taxes paid on bunker fuel manufactured and sold from 1999 to 2004. The Department of Revenue denied the refund claim after finding that the deduction applied only to the wholesaler and retailer B&O tax and not to the manufacturer B&O tax. Tesoro appealed the Department’s determination to the superior court. While the case was pending, in 2009, the Washington legislature amended the B&O tax deduction statute limiting the applicability of the B&O tax deduction to retailers and wholesalers of qualifying fuels prospectively and retroactively. The superior court held that Tesoro was not entitled to the deduction and granted summary judgment to the Department. Tesoro appealed the superior court’s decision.Continue Reading Washington Court of Appeals Holds Retroactive Application of a Statute Unconstitutional

The South Dakota Supreme Court appears to have added the South Dakota sales tax to the list of fees associated with automated teller machine (ATM) usage. TRM ATM Corporation v. South Dakota Dep’t. of Rev., 2010 SD 90 (December 8, 2010). In TRM, an Oregon company that owned, operated, sold, leased, and serviced ATM machines was assessed South Dakota sales tax on transaction processing and surcharge fees received from sponsor banks and core-data companies (parties that serve as intermediaries in the ATM transaction by contracting with card-holders’ depository banks to make ATM services available to cardholders). 

While TRM conceded the taxability of its transaction processing and surcharge fees under South Dakota’s sales and use tax laws, TRM claimed it was not liable for payment of the South Dakota sales tax. TRM made two arguments.Continue Reading The Latest ATM Fee, a Sales Tax?