The California Office of Tax Appeals (OTA)—in a 3-0 pending precedential opinion granting the Appeal of Jali, LLC—has rejected the Franchise Tax Board’s (FTB) 0.2 percent ownership threshold as the new bright-line standard for determining whether an out-of-state LLC member is actively “doing business” (and thereby required to file and pay tax) in California. The FTB relied upon Swart Enterprises, Inc. v. Franchise Tax Bd. (2017) 7 Cal.App.5th 497 (Swart) to deem Jali as actively doing business in California because its membership interest in an in-state LLC ranged between 1.12 to 4.75 percent, which “was well beyond the 0.2% Swart limit.” However, the OTA determined the FTB misconstrued Swart and found Swart was “squarely grounded on the relationship between the out-of-state member and the in-state LLC” and not simply based on ownership percentage. The OTA then evaluated Jali’s facts and found no evidence it had “any ability or authority, directly or indirectly, to influence or participate in the management or operation” of the LLC that conducted business in California.
The Fifth Appellate District of the California Court of Appeal has struck another blow to taxpayers claiming California unconstitutionally discriminates against interstate commerce by permitting intrastate unitary businesses to file using either a combined reporting method or separate accounting method, while requiring interstate unitary businesses to file under the combined reporting method.
(This article originally was published by Law360 on August 21, 2019.)
The repercussions of the California Supreme Court’s August 2017 opinion in California Cannabis Coalition, et al. v. City of Upland, et al.1 continue to reverberate, leading San Francisco’s business taxpayers to wonder what practical precautions to consider.
In a February article, we analyzed the Upland opinion, the over 40-year history of California’s two-thirds supermajority voting requirement for passing local special taxes, and an introduction to the first five post-Upland litigation challenges, including San Francisco actions involving the validity of two separate Proposition C voter initiatives that passed in 2018 with a majority but not a supermajority vote. In a follow-up article last month, we provided an update on the status of these five supermajority tax challenges pending around the state, including trial court decisions made in the two San Francisco Proposition C actions.
The New York State Tax Appeals Tribunal (TAT) issued a decision that addresses sourcing “services” vs. the catch-all “other business receipts” for years prior to New York Tax Reform (tax years beginning prior to 1/1/2015). The TAT found that the taxpayer, who provided electronic litigation support to its clients, was not providing a “service” to its clients. Instead, the TAT found the taxpayer’s receipts were properly classified by the Department of Taxation and Finance as “other business receipts.” However, the TAT found for the taxpayer in determining where other business receipts must be sourced. The TAT found that the receipts should be sourced to where they are earned (as provided in the Department’s regulations) and found that the receipts were earned where the taxpayer performed the work resulting in the income, which was at the taxpayer’s Colorado location and not at the electronic devices of the taxpayer’s customers. Matter of Catalyst Repository Systems, Inc., DTA No. 826545 (Tax App. Trib. July 24, 2019).
After a successful SALT Retreat in Napa, Calif., the team headed to Foster City to present on topics at the COST State and Local Tax Workshop for Technology Companies. Marc Simonetti kicked things off by presenting on the session regarding market-based sourcing for tech companies. The following day Carley Roberts, Craig Becker, and Jeffrey Vesely spoke on a variety of topics including an overview of new and established local taxes in cities that are aggressively targeting businesses, property tax issues that impact the tech industry, and a question and answer panel with the experts. The presentations were very informative and the Workshop was a success!
At the 2019 Inaugural Pillsbury SALT Retreat in Napa, Calif., the team spent the weekend learning more about each other, strategizing ways to better serve our clients, and attending a variety of substantive sessions. We kicked off the retreat with various “ice breaker” activities, opening the dialogue for even more productive strategy sessions throughout the weekend. Between sessions, we indulged in some friendly competition during an evening of bowling, learning more about the local vineyards via an afternoon wine tasting, and challenging our creative sides with a cooking class. Following a successful retreat, the team headed to Foster City to present on various topics at the COST Tech Conference.
(This article originally was published by Law360 on July 22, 2019.)
On July 5, the San Francisco Superior Court issued a pair of rulings in favor of the city and county of San Francisco, finding that two local special taxes introduced by voter initiatives were valid even though they passed with a simple majority vote and not a two-thirds supermajority vote.
(This article originally was published by Law360 on July 1, 2019.)
One of the more recent and aggressive shifts in state tax administration has been the rise of the state False Claims Act, or FCA, tax lawsuit. The scourge of the tax community, these lawsuits represent a shift from the disciplined examination by state tax authorities to a free-for-all attack by anyone with a theory on an alleged unfulfilled tax obligation.
On July 23-24, members of Pillsbury SALT will lead discussions at COST’s much anticipated state and local tax technology workshop in Foster City, Calif. This one-and-a-half day event promises to deliver in-depth state and local tax content tailored to technology businesses—everything from startups to long established companies. The varied presentations are for those new to tax and those who are tax savvy.
Pillsbury SALT members will lead discussions on a number of topics, including:
- “Market-Based Sourcing for Tech Companies: Identifying ‘Customers’ and Locating Their ‘Benefits'” (Marc Simonetti)
- “Beware of the Locals—They Might Take You by Surprise” (Carley Roberts)
- “All Things Property Tax for Tech Companies” (Craig Becker)
- “Ask The Experts” (Jeffrey Vesely)
For more information and to register, please visit the event page.
As of January 1, 2019, large retailers doing business in Portland, Ore., are subject to a new 1% gross receipts tax dubbed the “Clean Energy Surcharge.” This new tax is imposed on all businesses subject to the Portland business license tax that have annual retail receipts of over $1 billion and at least $500,000 annual retail receipts attributable to Portland. This tax has complications that qualifying large retailers should keep in mind. For instance, the tax is unconventionally broad and applies to, among other things, services (generally, without enumeration), interest income from lending, and sales of houses by builders. The tax uses current-year receipts, as opposed to prior-year receipts, to determine whether the thresholds are met, so businesses that may not be sure in advance if they will meet the thresholds should take caution accordingly. Finally, as is often the case with localities, Portland intends to apply its business license tax apportionment rule (income-producing activity approach), which differs from that of the State (market-based sourcing).