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gross-receipt-taxes-portlandAs 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).

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(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.

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TAKEAWAYS

On April 25, 2019, California enacted comprehensive marketplace facilitator legislation. Many said last fall this would be an impossible feat given the divided constituency of the California Legislature on whether all marketplace facilitators should be treated equally for purposes of imposing California’s Sales and Use Tax law. Consider the impossible achieved. California’s sweeping Marketplace Facilitator Act, adopted under Assembly Bill (AB) 147, treats virtually all marketplaces the same.

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(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.

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Three years ago, the U.S. Supreme Court invalidated a portion of Maryland’s personal income tax scheme on grounds that it violated the dormant commerce clause of the U.S. Constitution. In Comptroller of the Treasury of Maryland v Wynne, the Court held that Maryland’s credit mechanism for income taxes paid to other states impermissibly discriminated against interstate commerce because it allowed a credit against state taxes paid but not county taxes, resulting in double taxation on some income earned outside the state.

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