The New York State Department of Taxation and Finance issued two advisory opinions determining that surplus lines insurance companies are subject to uncapped insurance franchise tax instead of premium tax.

  • The Department’s position treats authorized non-life insurance companies differently than unauthorized non-life insurance companies.
  • The Department rejected the insurance companies’ argument that New York’s direct placement tax or surplus lines tax is imposed in lieu of the insurance franchise tax for surplus lines companies.
  • The conclusions in these advisory opinions may violate the federal Nonadmitted and Reinsurance Reform Act and may be contrary to legislative intent.

View the full Legal Alert.

Read our June 2016 posts on stateandlocaltax.com or read each article by clicking on the title. For the latest coverage and commentary on state and local tax developments delivered directly to your phone, download the latest version of the Sutherland SALT Shaker app.

mollisquare1.JPGMeet Molli, the 11-year-old English Bulldog of Jaimie Lee, Indirect Tax Senior Manager at Uber. Molli is a sociable gal, who would much rather spend time with her two-legged friends and family than other dogs. This special pup loves to be the center of attention and enjoys her life as an only child.

She loves when friends come over to visit and remembers good friends by name. She even manages to make friends while riding in the car. Molli sits in the backseat and looks out the window at her many admirers. Her favorite activities include playing with toys like her tennis ball, squeaky Kong tennis ball, and rope toys for tugging and playing take-away.

Molli burrito.jpg

This social gal has her quirks. Even though she has her own comfy dog bed, she would much rather be in Jaimie’s bed. She likes to burrow her way under all the blankets until her nose is the only thing you can see. She gets called “burrito dog,” when she pulls this move.

Molli is an indoor dog, but loves the outdoors. She enjoys going to the beach, where you’ll find her playing in the sand and occasionally getting soaked by an ocean wave. Her favorite vacation spots are Sonoma, Napa and downtown Seattle where she walks to Pike Place Market. When she’s not on vacation, you can find her outside, soaking up the sun and enjoying the city views.

Molli is thrilled to be featured as June’s Pet of the Month!

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By Hanish Patel and Eric Coffill

The Alabama Tax Tribunal held that a taxpayer was entitled to a refund of sales taxes paid on purchases of software that was modified for its exclusive use because it constituted nontaxable custom software. Relying on its regulation, the Alabama Department of Revenue (DOR) denied the refund, stating the “software contained canned software that was customized and the nontaxable customized portion was not separated from the taxable canned portion[.]” However, Chief Tax Tribunal Judge Bill Thompson pointed out the DOR’s regulation is contradictory because although it states modified canned software only constitutes nontaxable custom software to the extent of the modification, the regulation’s definition of custom software includes the “pre-existing program” (i.e., the canned software). See Ala. Admin. Code r. 810-6-1-.37. Therefore, since there was no statutory or judicial authority to support the regulation’s limit on modifications to canned software, the Tax Tribunal ruled the taxpayer’s modified software constituted nontaxable custom software. Russell Cty. Cmty. Hosp. v. Ala. Dep’t of Revenue, No. S 15-1683 (Ala. Tax Trib. June 13, 2016).

By Charles Capouet and Todd Lard

The Supreme Court of Texas held that an oil and gas exploration and production company’s purchases of casing, tubing, other well equipment, and associated services were not exempt from sales tax under various processing exemptions. Texas provides multiple exemptions from sales tax for certain tangible personal property related to the “actual manufacturing, processing, or fabrication of tangible personal property.” The court held that “processing” meant “the application of materials and labor necessary to modify or change characteristics of tangible personal property.” The taxpayer’s equipment was used in the process of extracting hydrocarbons from underground mineral reservoirs, separating the hydrocarbons into their component substances, and bringing them to the surface. However, there was “no evidence that the equipment acted upon the hydrocarbons to modify or change their characteristics.” Because the changes in the hydrocarbons were instead caused by the natural pressure and temperature changes occurring as the hydrocarbons traveled from the reservoir to the surface, the court held that the taxpayer was not entitled to the processing exemptions from sales tax on its purchases of the equipment. Southwest Royalties, Inc. v. Hegar, No. 14-0743 (Tex. June 17, 2016).

By Douglas Upton and Timothy Gustafson

The New York State Department of Taxation and Finance issued an Advisory Opinion concluding that a retail operator of kiosks selling various prepaid telecommunication plans and additional telecommunication rights for existing plans was subject to New York sales and use tax collection and remittance requirements, but was not subject to the additional excise tax on telecommunication service providers imposed by section 186-e.2(a) of the New York Tax Law. Specifically, the Department determined that the sale of the prepaid calling services was the sale of taxable telecommunication services subject to sales and use tax, unless the service charge was expressly for Internet access, either as a standalone charge or a broken-out component of other charges (charges for Internet access were not taxable because the Internet Tax Freedom Act, 47 U.S.C. § 151 n applied). However, the kiosk operator was not a telecommunication service provider subject to the additional excise tax because the kiosk operator was “merely facilitating the sale of telecommunication service between the carrier liable for the telecommunication services being sold, and the customer” and did not furnish or sell the transmission of the telecommunication service. N.Y. Advisory Opinion, TSB-A-16(2)C (Apr. 25, 2016).

By Andrew Appleby

The New York City Tax Appeals Tribunal reversed an administrative law judge (ALJ) and determined that a health maintenance organization (HMO) was subject to the New York City general corporation tax.

In Aetna, the parties stipulated that all the requirements for combination had been satisfied, so the sole issue was whether the New York City preclusion for insurance companies applied. If the HMOs were doing an insurance business in the state, the HMOs could not be included in the combined group for general corporation tax purposes. At the ALJ level, the ALJ looked to various sources to analyze whether the HMO was doing an insurance business, including a U.S. Supreme Court case, and ultimately determined that the HMO was doing an insurance business and could not be included in the combined group. Notably, however, the Tax Appeals Tribunal relied heavily on New York State’s regulatory structure. The Tribunal determined that HMOs were regulated almost entirely under the Public Health Law, not the Insurance Law, and therefore were not doing an insurance business in the state (although the Tribunal disregarded two Insurance Department opinions that arguably treated HMOs as insurance companies). The Tribunal also looked to a 2009 New York Tax Law amendment that stated that HMOs are subject to insurance franchise tax (Article 33), not corporate franchise tax (Article 9-A). The Tribunal rejected Aetna’s argument that the amendment was a clarification, and instead considered it a reclassification based on legislative history. The Tribunal reversed the ALJ and determined that the HMO was not doing an insurance business in the state and was properly included in the combined general corporation tax return. In The Matter of Aetna, Inc., TAT(E)12-3(GC), TAT(E)12-4(GC) (NYC Tax App. Trib. June 3, 2016).

By Charles Capouet and Madison Barnett

The New York City Tax Appeals Tribunal held that a bank filing a combined New York City bank tax return properly excluded from its combined group a Connecticut investment subsidiary that primarily held mortgage loans secured by non-New York property. Where there are substantial intercorporate transactions among banking corporations or bank holding companies engaged in a unitary business, New York City law presumes that a combined return is required. The Tribunal held that although there were substantial intercorporate transactions, the combined report presumption was rebutted because the intercompany transactions were conducted at arm’s length, and the transactions and entities had non-tax business purposes and economic substance. The Tribunal determined that “[a]lthough it is clear that the tax purposes [of forming the investment subsidiary] were substantial, separating the non-New York loans from [the New York bank] was a sufficient non-tax business purpose to support the transactions.” As a result, New York City could not require the bank to include its investment subsidiary in its combined New York City bank tax return. In re Astoria Fin. Corp. & Affiliates, No. TAT (E) 10-35 (BT) (N.Y.C. Tax Appeals Tribunal May 19, 2016).

By Samantha Trencs and Amy Nogid

A Washington State administrative law judge (ALJ) denied a business and occupation (B&O) tax protest from a German pharmaceutical corporation with no physical presence in the state after finding that the royalty income from products sold in Washington far exceeded Washington’s economic nexus threshold. The double taxation relief available in the treaty between the U.S. and Germany did not prevent Washington from imposing the B&O tax since the corporation could exclude income taxed by Washington in its German tax base. Additionally, the ALJ found that if the treaty’s non-discrimination provision applied to state and local taxes, the B&O tax did not discriminate against foreign businesses, because the tax applies equally to both U.S. and non-U.S. businesses that derive royalty income in the state. Det. No. 15-0251, 35 WTD 230 (05/31/2016).

By Stephen Burroughs and Scott Wright

The Supreme Court of Arkansas recently upheld use tax assessments imposed upon a contractor that purchased and installed equipment used in a water treatment facility expansion. Arkansas exempts from sales and use tax purchases of machinery and equipment used to create or expand a manufacturing or processing facility in the state. While the purchased equipment was used for the expansion, the court ultimately concluded that the facility’s water treatment process did not constitute “manufacturing” for purposes of the sales and use tax exemption. The court reasoned that manufacturing requires a transformation—raw material must emerge from the manufacturing process as a different article “having a distinct name, character or use.” The taxpayer argued, and two dissenting justices agreed, that the water treatment process transformed contaminated river water into consumable drinking water. The court’s majority, however, disagreed and concluded that “[i]t was water in the beginning, and it was water in the end.” Walther v. Carrothers Constr. Co. of Ark., LLC, 2016 Ark. 209, No. CV-15-799 (Ark. 2016).