Following a taxpayer’s appeal of a local Virginia county (County) Business, Professional and Occupational License (BPOL) tax assessment, the Virginia Tax Commissioner held that the taxpayer’s remote employees’ payroll was properly excluded from the numerator of the payroll apportionment calculation. The taxpayer was headquartered out of state and maintained offices worldwide, including an office in the County. The taxpayer and County agreed to apportion its gross receipts by payroll. The taxpayer had included in the numerator only the payroll of those employees working at its County location and those remote workers in Virginia who reported to the County location. The County, however, determined that the numerator should include the payroll of all employees working in Virginia.

For BPOL situsing purposes, taxpayers generally must include in the tax base “only those gross receipts attributed to the exercise of a privilege subject to licensure at a definite place of business” within the taxing jurisdiction. Va. Code § 58.1-3703.1(A)3.a. For receipts from the performance of services, if the services are not performed at any definite place of business, they are attributed to the definite place of business from which they are directed or controlled. Va. Code § 58.1-3703.1(A)3.a.(4).  But when it is impossible or impractical to determine where the service is performed or from where the service is directed or controlled, such receipts are taxed based on payroll apportionment between a taxpayer’s definite places of business. Va. Code § 58.1-3703.1(A)3.b. For purposes of the payroll apportionment calculation, “[g]ross receipts shall not be apportioned to a definite place of business unless some activities under the applicable general rule occurred at, or were controlled from, such definite place of business.” Va. Code § 58.1-3703.1(A)3.b.

The Tax Commissioner held that this statutory language does not require the payroll of remote employees to be sitused to the definite place of business to which they report. Rather, the remote employee’s home may itself constitute a definite place of business. The Tax Commissioner further observed that requiring payroll of remote employees to be apportioned on a direction and control basis “would reintroduce the types of factual complexities that payroll apportionment was designed to avoid.” Thus, the Tax Commissioner rejected the County’s determination and took the taxpayer’s argument one step further, holding that numerator of the payroll apportionment calculation “should not include any employees who worked remotely outside of the County, regardless of what office they reported to.”

Va. Public Document Ruling No. 21-131, Va. Dep’t of Taxation (issued Sept. 28, 2021).

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: The New York State Tax Appeal Tribunal recently held that a limited liability company was entitled to a refund of sales tax paid on the purchase of an interest in a painting by which famous artist?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. Answers will be posted on Saturdays in our SALT Shaker Weekly Digest. Be sure to check back then!

On April 4, 2022, the Colorado House of Representatives unanimously approved S.B. 32, a measure simplifying local sales and use tax reporting by prohibiting Colorado’s approximately 70 home-rule cities from requiring remote sellers to obtain local business licenses as long as the retailer has a state standard retail license. Beginning on July 1, 2022, local taxing jurisdictions may no longer charge remote retailers or retailers with only incidental physical presence in the local taxing jurisdiction for a general business license. Starting in July 2023, local taxing jurisdictions may not require such remote sellers to separately apply for a retail license, and if a local license is required, the local jurisdiction shall automatically issue it. The bill also requires the Colorado Department of Revenue to provide information about remote sellers to local taxing jurisdictions. The measure now heads to the Governor for his signature.

The Utah Supreme Court ruled for taxpayers John and Brooke Buck, finding they were not domiciled in Utah during tax year 2012. The Court held that the State Tax Commission had incorrectly applied Utah’s statutory domicile presumption that attaches when a taxpayer claims a residential exemption for property tax purposes. As addressed in more detail in our previous coverage here, the taxpayers presented significant evidence to rebut the presumption, including showing that they had relocated to Florida in 2011 and that neither the husband nor the wife spent more than 22 days in Utah during 2012.

A Utah statute provides a rebuttable presumption that an individual is domiciled in the state if the taxpayer claims the residential exemption for property tax purposes for the individual or individual’s spouse’s primary residence. The State Tax Commission had narrowly interpreted the types of evidence taxpayers could present to rebut the presumption, limiting the evidence to the taxpayer’s actions or inactions related to the residential property tax exemption itself. The Supreme Court ruled that the Commission erred in that interpretation, because it was contrary to the statute and effectively precluded taxpayers from being able to overcome the presumption. The Court explained that because the presumption is rebuttable taxpayers should have a meaningful opportunity to rebut the presumption by producing evidence of the totality of circumstances relevant to their domicile, including for example, the state in which they held drivers’ licenses, the state in which they worked, and the state in which their children attended school. As the taxpayers provided significant evidence that their domicile was Florida, the Court ruled they were Utah nonresidents in 2012.

Buck v. Utah State Tax Comm’n, 2022 UT 11 (Sup. Ct. 2022).

After a long wait, the Maryland Comptroller of the Treasury recently released Maryland Form 600D, Declaration of Estimated Digital Advertising Gross Revenues Tax. The Maryland Digital Advertising Tax went into effect on January 1, 2022. Taxpayers subject to the tax are required under Maryland law to make estimated payments. The first one is due April 15, 2022. The recently released Form 600D is provided to calculate and make estimated payments. The form must be filed by every taxpayer that reasonably expects its Maryland gross revenues attributable to digital advertising services to exceed $1,000,000 for the calendar year. However, there is no tax rate for a taxpayer that generates less than $100,000,000 of global revenues from any activity.

For more information regarding digital advertising tax compliance, please contact any member of the Eversheds Sutherland SALT team.

In this episode of the SALT Shaker Podcast policy series, host and Eversheds Sutherland Partner Nikki Dobay welcomes Ryan Maness, Director and Counsel of Tax Policy at MultiState, for a discussion of notable, current state tax policy.

Before diving into what’s happened in the policy space for Q1 of this year, Ryan shares more about his background and what led him to MultiState.

Ryan also shares what’s been on his radar so far this year, including how this being an election year affects state tax policy decisions by legislators. In addition, Ryan and Nikki discuss how states have been considering changes to personal income tax, and how inflation headlines are impacting bills being introduced.

Ryan also speaks to which states he’s most interested in following this year, due to their trend of changing tax codes, and how crypto and blockchain topics are affecting both states and their lawmakers.

Nikki’s surprise non-tax question this week involves marriage ceremonies – If you were getting married this weekend, where would you do it?

The Eversheds Sutherland SALT team has been engaged in state tax policy work for years, tracking tax legislation, helping clients gauge the impact of various proposals, drafting talking points and rewriting legislation. Partner Nikki Dobay, who has an extensive background in tax policy, hosts this series, which is focused on state and local tax policy issues.

Questions or comments? Email SALTonline@eversheds-sutherland.com. You can also subscribe to receive our regular updates hosted on the SALT Shaker blog.

 

 

 

 

 

 

 

 

 

 

 

 

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During the 2022 legislative session, the Georgia General Assembly passed significant tax legislation, including authorizing affiliated groups to file consolidated corporate income tax returns without prior approval from the Department of Revenue, extending and amending qualification for the high-technology and data center sales tax exemptions, extending and increasing several income tax credits, and changing procedures for appealing some tax cases to superior court.

Read the full legal alert here.

The Massachusetts Appellate Tax Board ruled that a company that develops and sells software-as-a-Service (SaaS) is allowed a property tax exemption for the machinery it uses in its development process. The Appellate Tax Board previously ruled that the company was a manufacturing corporation, and thus was entitled to use single sales factor apportionment provided to manufacturing companies for corporate income tax purposes, rather than the standard three-factor formula used by service providers.  Because the Appellate Tax Board classified the company as a manufacturing corporation for corporate income tax purposes, the Board concluded that the company was also entitled to the attendant property tax exemption for the machinery used in conducting its manufacturing business.

Calling all trivia fans! Don’t miss out on a chance to show off your SALT knowledge!

We will award prizes for the smartest (and fastest) participants.

This week’s question: A recent Technical Advice Memorandum from the New Jersey Division of Taxation updated the tax treatment of transactions involving which items?

E-mail your response to SALTonline@eversheds-sutherland.com.

The prize for the first response to today’s question is a $25 UBER Eats gift card. Answers will be posted on Saturdays in our SALT Shaker Weekly Digest. Be sure to check back then!

On March 28, 2022, Mississippi’s governor signed S.B. 2831, creating the Taxation of Remote and Internet-based Computer Software Products and Services Study Committee, which is tasked with examining the taxation of remote and internet-based computer software products and services in Mississippi. By October 1, 2022, the Committee must report to the legislature its findings and recommendations regarding which products and services should be taxable, and how they should be taxed. The five member committee is comprised of a representative or designee from each of the Mississippi Department of Revenue, the Mississippi Association of Realtors, the Business and Industry Political Education Committee, the Mississippi Manufacturer’s Association, and the Mississippi Bankers Association.