By Saabir Kapoor and Prentiss Willson

Virginia’s Tax Commissioner denied a taxpayer’s request for alternative apportionment because the taxpayer did not demonstrate by clear and cogent evidence that the statutory apportionment methodology led to an unconstitutional and inequitable result. The taxpayer, a limited partnership headquartered outside Virginia, sold real estate located in its home state and sought to allocate income to Virginia based on a separate accounting methodology. Virginia will only grant permission to use an alternative method of apportionment if the taxpayer can show: (1) the statutory method produces an unconstitutional result under the particular facts and circumstances; and (2) the statutory method is inequitable because it results in double taxation, and the inequity is attributable to Virginia’s, rather than another state’s, method of apportionment. The Commissioner relied on the long-standing principle established by the U.S. Supreme Court in Moorman Manufacturing Company v. G.D. Bair, etc., 437 U.S. 267 (1978), that states have wide latitude in the selection of apportionment formulas that will only be disturbed when the taxpayer can demonstrate by clear and cogent evidence that income attributed to the state is out of all appropriate proportion to business transacted in the state or has led to a grossly distorted result. The Commissioner ruled that the taxpayer did not meet its burden of proof because the only evidence offered was the fact that Virginia’s statutory apportionment methodology would “substantially increase” the amount of income subject to tax by Virginia. Rulings of the Tax Commissioner, No. 13-86 (June 10, 2013).