By Kathryn Pittman and Andrew Appleby

The Virginia Tax Commissioner determined that an ink manufacturer’s purchase of cleaning chemicals did not qualify for the industrial manufacturing exemption from sales and use tax. To avoid color contamination, the taxpayer had to regularly clean the equipment used to produce the ink with special cleaning chemicals. The taxpayer claimed such cleaning chemicals were exempt from sales and use tax pursuant to the industrial manufacturing exemption because the cleaning chemicals were an integral and necessary part of the manufacturing and quality control process. Virginia law provides an exemption from sales and use tax for certain materials that are “used directly” in and are an “immediate part of” a manufacturing process. After reviewing relevant Virginia authorities, the Tax Commissioner found that the chemicals were not an “immediate part of” the ink production process but rather were used before and after production. The Tax Commissioner specifically noted that production had to stop before any cleaning activity could begin. Therefore, the chemicals were not actively and continuously used in the taxpayer’s manufacturing process and as such failed to meet the “used directly” requirement in the industrial manufacturing exemption. Va. Pub. Doc. No. 14-114 (Jul. 18, 2014).

By Stephanie Do and Timothy Gustafson

The Texas Comptroller has filed a reply supporting its petition for review to the Texas Supreme Court in Titan Transp., LP v. Combs, 433 S.W.3d 625 (Tex. App. 3rd 2014). The taxpayer in Titan was in the business of hauling, delivering and depositing aggregate at construction sites, providing its services primarily through subcontractor drivers. For Texas franchise tax purposes, the taxpayer excluded certain flow-through payments to its subcontractors mandated by contract from its total revenue, claiming a substantial revenue exclusion. Alternatively, the taxpayer claimed it was entitled to deduct these flow-through payments as a cost of goods sold. The Court of Appeals determined the taxpayer was entitled to a tax refund based on the substantial revenue exclusion and thus did not address the taxpayer’s alternative claim. The Comptroller subsequently filed a petition for review to the Texas Supreme Court. In response, the taxpayer argued Titan did not merit review because the Court of Appeals properly applied the statutory exclusion. Moreover, although the Court of Appeals did not address the merits of the taxpayer’s cost-of-goods-sold deduction claim, the taxpayer contended its alternative claim provided a basis to affirm the Court of Appeals’ decision. Urging the Texas Supreme Court otherwise, the Comptroller subsequently argued that permitting the taxpayer to exclude such payments to subcontractors would allow businesses to exclude similar receipts by merely changing contract terms. In addition, with regard to the taxpayer’s cost-of-goods-sold deduction claim, the Comptroller argued that the case should be remanded to the Court of Appeals for consideration as it is a matter of first impression and is of great importance to the State. Reply Supporting Petition for Review, Combs v. Titan Transp., LP, No. 14-0307 (Tex. Aug. 13, 2014); Response to Petition for Review, Combs v. Titan Transp., LP, No. 14-0307 (Tex. Aug. 11, 2014).

By Todd Betor and Timothy Gustafson

A California Franchise Tax Board (FTB) Chief Counsel Ruling concluded that a taxpayer’s sales of assets pursuant to a plan of reorganization under Chapter 11 of the U.S. Bankruptcy Code were not “occasional sales” within the meaning of 18 Cal. Code Regs. § 25137(c)(1)(A)2. Instead, the sales of assets were deemed to be part of the taxpayer’s normal course of business and occurred frequently. As a result, the taxpayer’s gross receipts from the asset sales were includable in its sales factor for apportionment purposes. Under 18 Cal. Code Regs. § 25137(c)(1)(A), receipts are excluded from the sales factor when a substantial amount of gross receipts arise from an occasional sale of assets used in that taxpayer’s trade or business. A sale is an “occasional sale” if the transaction is outside of a taxpayer’s normal course of business and occurs infrequently. The taxpayer at issue filed for Chapter 11 bankruptcy, which lead to a number of creditors cashing out to investors for amounts less than face value of the debt. In order to monetize their investments, and as part of the taxpayer’s plan of reorganization, the new owners directed the taxpayer’s management to sell the taxpayer’s assets, resulting in a series of asset sales over a two-year period. The FTB concluded that “[t]o accomplish the goal of the Plan of Reorganization, negotiation and implementation of asset sale transactions became part of [the] Taxpayer’s normal course of business.” Consequently, the asset sales were found not to be “occasional sales.” California FTB Chief Counsel Ruling No. 2014-2 (June 3, 2014).

By Ted Friedman and Timothy Gustafson

The New York State Department of Taxation and Finance issued a Tax Bulletin addressing the application of sales tax to sales of computer software and related services. The Department explained that the sale of prewritten software is taxable, while the sale of custom software is not subject to tax. Accordingly, the sale of an upgrade of prewritten software is subject to tax unless the upgrade is designed and developed to the specifications of a particular purchaser. Further, a sale of software includes any transfer of title or possession, including a license to use, and the sale to a purchaser in New York of a license to remotely access software is subject to tax because, by accessing the software, the purchaser gains “constructive possession of” and “the right to use or control” the software. The situs of the sale is “the location from which the purchaser uses or directs the use of the software, not the location of the code embodying the software.” Separately stated and reasonable charges for maintaining, servicing or repairing software are exempt from sales tax. However, if a software maintenance agreement provides for the sale of taxable and nontaxable elements, the charge for the entire maintenance agreement is subject to tax unless the charges for the nontaxable elements are: (1) reasonable and separately stated in the maintenance agreement; and (2) billed separately on the invoice or other document of sale given to the purchaser. In addition, custom software is exempt from tax when resold or transferred directly or indirectly by the purchaser of the software to either: (1) a corporation that is a member of an affiliated group of corporations that includes the original purchaser of the custom software; or (2) a partnership in which the original purchaser of the custom software and other members of the affiliated group have at least a 50% interest in capital or profits. Finally, services related to computer software, such as training, consulting, troubleshooting, installing, programming and servicing, are exempt from tax, except when provided in conjunction with the sale of prewritten software; then such services are exempt only when related charges are reasonable and separately stated on the invoice or billing statement given to the customer. N.Y. Tax Bulletin, TB-ST-128 (Aug. 5, 2014).

By Stephen Burroughs and Pilar Mata

The California Franchise Tax Board (FTB) issued a legal ruling determining that it will attribute the business activities of a multiple-member limited liability company classified as a partnership for tax purposes (LLC) to its members when determining whether such members are “doing business” in California. As a result, out-of-state business entities that own a membership interest in an LLC doing business in California will be subject to tax themselves. In reaching this determination, the FTB acknowledged that LLCs share characteristics with both partnerships and corporations but determined that LLCs that do not “check the box” for federal tax purposes are considered partnerships under California tax law. Because “the activities of [a] partnership are attributed to each partner,” the FTB concluded that “if an LLC…is ‘doing business’ in California [then] the members of the LLC are themselves ‘doing business’ in California.” The FTB declined to extend the exception provided to limited partnerships in Amman & Schmid Finanz AG, et al., 96-SBE-008, April 11, 1996, to LLCs on the ground that, unlike limited partners, LLC members have the statutory right to manage or control the decision-making process of the entity. The legal ruling includes six examples. The first two examples find that an LLC merely registering to do business or organizing in California is not actively engaging in a transaction for the purpose of financial gain or profit attributable to its members, and therefore will not create a filing requirement for its members. The other examples demonstrate that the FTB will consider a member of an LLC to be doing business in California if the LLC is commercially domiciled in California or has activities or factor presence in California sufficient to constitute “doing business” within the meaning of Cal. Rev. & Tax. Code § 23101. The ruling has come under criticism from practitioners not only disagreeing with the ruling’s substantive conclusions but also its timing, as the FTB is actively litigating related issues in the California courts. California FTB Legal Ruling 2014-01 (July 22, 2014).

We are pleased to announce that Leah Robinson joined Sutherland’s State and Local Tax (SALT) practice as a partner in New York. Prior to joining Sutherland, Leah was a partner at McDermott Will & Emery LLP.

Leah advises clients in state and local tax planning, policy, controversy and litigation across a wide range of industries, including the financial services, insurance, energy, technology and retail sectors. Nationally recognized for her advocacy in tax disputes with New York State, New York City and New Jersey, she also has represented clients in front of departments of revenue throughout the country. Leah provides national state tax strategy for clients on the full range of state tax matters, including nexus, income tax apportionment and combination planning, sales tax characterization of products, and audit defense, controversy and litigation. She advises on a variety of sales and use tax issues, from the taxability of digital goods to the treatment of temporary help services. She also has handled income tax litigation associated with the constitutionality of New Jersey’s controversial “throw out” apportionment rule.

Leah previously served as a tax attorney with the IRS Office of Chief Counsel in New York City, where she was part of the strategic trial attorney litigation team handling the largest § 482 transfer pricing controversy in history. Her transfer pricing experience will enhance significantly our SALT team’s controversy experience, as an increasing number of states are seeking to challenge state taxpayers’ intercompany charges and structures.

Click here to read our July 2014 posts or read each article by clicking on the title. A printable PDF is also available here. To read our commentary on the latest state and local tax developments as they are published, be sure to download the Sutherland SALT Shaker mobile app.

Lily1.jpgMeet Lily, the adorable six-month-old Beagle/Basset Hound mix belonging to Sutherland SALT’s Jonathan Maddison and his fiancée, Molly. Lily is a rescue dog and was found in a Lily2.jpgtrailer in Alabama. Jon and Molly adopted her at seven weeks old, so they have enjoyed seeing her grow up! Lily enjoys chewing on everything (especially her parents’ shoes), playing with her friends at the dog park, rolling around in mud, watching hockey with her dad, keeping a lookout from her watch tower and falling asleep on her parents.

On July 30, the Multistate Tax Commission (MTC) approved amendments to the Multistate Tax Compact’s (1) definition of nonbusiness income, (2) definition of “sales,” (3) factor-weighting, (4) alternative apportionment, and (5) sourcing of service and intangible revenue. With the approval, the amendments officially become a model act of the MTC, and taxpayers should expect legislation to be introduced in several states when their legislatures convene for next year’s sessions.

The most significant amendment adopted was the change to Section 17 of the Compact, which is identical to the Uniform Division of Income for Tax Purposes Act (UDITPA). Section 17 applies to the sourcing of sales, other than the sale of tangible personal property. The amendment switches the sourcing methodology from the traditional costs-of-performance method to a market-based sourcing method for services and intangibles.

As to the factor-weighting amendment, the current version of Section 9 of the Compact provides for an equally weighted apportionment formula consisting of the sum of a taxpayer’s property, payroll and sales factors divided by three. The amendment provides that member states are able to define their own factor weighting fraction. However, a double-weighted sales factor is “recommended.”

The amendment to Section 1(a) of the Compact replaces the concept of business income with the phrase “apportionable income.” The phrase essentially applies a constitutional standard with additional guidance. The definition—among other revisions—exchanges the language “constitute integral parts of” for “is or was related to the operation of,” and also removes the word “regular” in describing what income arises from tangible and intangible property in the taxpayer’s trade or business.

The Section 1(g) amendment narrows the definition of what constitutes “sales” for purposes of the sales factor. The amendment expressly excludes treasury and hedging activities from the sales factor.

Lastly, the MTC amended Section 18, which contains the MTC’s alternative apportionment provision. The amendment allows for an administrator to adopt regulations under Section 18 that must be applied to all similar taxpayers. Arguably, the amendment broadens a state’s current authority, which usually results in regulations targeted at unique industries. The amendment provides the administrator the authority to draft regulations to target a “particular transaction or activity.”

The adoption of these amendments marks the end of a Compact revision process that started in August 2007. While the amendments are now officially part of the MTC’s uniform law collection, many of the changes will require regulations to be enacted before they can be applied. The question now is whether states will move to enact the new amendments, or perhaps defer enactment until the MTC pulls together effective regulations.

By Derek Takehara and Andrew Appleby

The Texas Comptroller determined that a semiconductor manufacturer’s purchases of computer software-related services were subject to sales and use tax because the taxpayer failed to prove that such purchases qualified for the multistate benefit exemption. Taxable services performed for use in Texas are generally subject to tax. Because some services are performed for use both in and outside of Texas, legislation was created to provide an exemption—the multistate benefit exemption—for the portion of the taxable services performed for use outside of Texas. The Comptroller clarified such exemption applies only to services that became taxable after September 1, 1987, and a taxpayer must prove by clear and convincing evidence that it operates in more than one state and that the service supports a separate, identifiable segment of the business rather than the general administration or operation of the business. In 1984, Texas began to impose tax on repair, maintenance and restoration services of tangible personal property, including canned computer software. Texas did not include custom computer programs in the definition of tangible personal property until October 1, 1987. Given this timeline, only a small portion of the taxpayer’s purchases were even eligible for the multistate benefit exemption: purchases for repair, maintenance and restoration services of custom computer software. However, a 2007 Texas Comptroller’s Decision provided that such services constitute part of the original sale of the software when performed by the original vendor, and the taxpayer was further required to prove that the services it purchased were stand-alone services in order to claim the exemption. Based on the evidence proffered, the Comptroller determined that the taxpayer failed to meet its burdens and denied the taxpayer’s claim for refund. Tex. Comp. Decision 105,855 (Apr. 24, 2014).