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 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).
(This article originally was published by Law360 on May 17, 2019.)
In the last year, several state legislatures have enacted laws and several state courts have published decisions on whether software as a service, or SaaS, is subject to sales and use tax. These developments impact many SaaS providers, especially due to the expanded nexus provisions that many states are enacting after the United States Supreme Court’s South Dakota v. Wayfair Inc. decision.1 The states have gone in different directions—Indiana enacted legislation exempting SaaS, while Iowa and Rhode Island began taxing SaaS. The Massachusetts Appellate Tax Board and the Pennsylvania Board of Finance and Revenue have both issued decisions clarifying the taxability of SaaS offerings.
(This article was originally published by Law360 on April 16, 2019.)
In recent years, many have openly criticized California for its income tax litigating position involving out-of-state companies that hold passive, minority interests in pass-through entities doing business in California. The state argues these out-of-state companies are doing business in California solely by virtue of their passive, minority investment in pass-throughs that conduct business in California. The state has lost the issue twice in the last two years. Most recently in September 2018 before an administrative appellate body in a nonprecedential decision involving a 25% passive ownership interest and the other in 2017 at the California Court of Appeal in a published decision involving a 0.2% passive ownership interest.
Assembly Bill 2412 (Migden and Aroner), now pending in the California Legislature, would drastically expand the California rules for nexus to tax under the California Sales and Use Tax Law. The bill should be of high interest to Internet retailers who do not have a physical presence in California. A.B. 2412 would expand California law to provide that a retailer has nexus with California based solely on the relationship between the out-of-state retailer and another retailer who does have nexus with California.
(The remainder of this article can be accessed in the July/August 2000 edition of Cyberspace Lawyer.)