A taxpayer has filed a petition for certiorari, asking the U.S. Supreme Court to rule on whether an out-of-state corporation has nexus with Kentucky by virtue of its ownership interest in a limited partnership that does business in the state. Asworth LLC (f/k/a Asworth Corp) v. Kentucky Dep’t of Revenue, Docket No. 10-662 (Nov. 16, 2010).
Asworth and its affiliates are out-of-state corporations that manage investments of various legal entities. None of the corporations has any property, employees, or payroll in Kentucky. Asworth owns a limited partnership interest in a partnership that conducts business in Kentucky. The Department of Revenue assessed Asworth for corporate income taxes on its distributive share of partnership income. Asworth challenged the assessment arguing that it was not subject to the corporate income tax because it did not have nexus with the state.
The Kentucky Court of Appeals reversed the decision of the Circuit Court and upheld the Department’s finding that Asworth had nexus with the state through its distributive share of partnership income. Revenue Cabinet v. Asworth Corp., 2009 Ky. App. LEXIS 229 (Ky. Ct. App. 2009). Asworth’s argument that the assessment violated the dormant Commerce Clause’s physical presence nexus requirement was rejected because the corporation owned an interest (up to 99% at various times) in a partnership that conducted business in Kentucky. The court observed that it still remains unclear whether the bright-line physical presence standard articulated in Quill v. North Dakota, 504 U.S. 298 (1992), for sales and use taxes applies to income taxes.
The time has come for the Court to accept a nexus case. Time will tell whether Asworth is the appropriate vehicle for the Court to provide further nexus guidance.