United States: SALT Legislative Outlook, Trends And Predictions For 2013

With significant shifts in the political composition of state legislatures as well as uncertainty about the effect of the "fiscal cliff" and the amount of funding that will be available from federal sources, 2013 promises to be a year in which states consider innovative, and potentially dramatic, changes to their state tax systems.

We begin with some thoughts on the federal "fiscal cliff," which we initially considered a few weeks back in our SALT Alert summarizing the Top SALT Stories of 2012.1 The well-publicized backpedal off the "fiscal cliff" from a federal income tax perspective at the turn of the new year contains an extension of income tax cuts in effect since 2001 for all taxpayers except for single filers earning more than $400,000 and joint filers earning more than $450,000.2 In addition, phase outs of personal exemptions and itemized deductions will be reinstated for high-income taxpayers.3 For those who track SALT developments, this result is not surprising, as in recent years, a number of states have implemented increased tax rates for high-income taxpayers, along with restrictions on personal exemptions and itemized deductions in certain cases. The economic impact of these effective tax increases, when combined with the failure to extend a temporary 2 percent cut in the payroll tax, could be significant, potentially leading to downward pressure on state sales taxes as consumption declines.

On the corporate income tax side, many provisions were extended for an additional year, including the application of 50 percent bonus depreciation and Section 179 expensing provisions.4 For states, the extension of these provisions for another year is not likely to be treated in a significantly different manner than in the past several years. The states that have typically decoupled from these provisions are likely to continue to do so, and the states that have automatically conformed to these provisions are unlikely to affirmatively make a change. However, Pennsylvania5 and Illinois6 are examples of states likely to alter their treatment of bonus depreciation from full conformity in late 2011 and 2012 (pursuant to 100 percent bonus depreciation, as a result of a technical issue in their bonus depreciation statutes) to full decoupling in 2013.

The resolution of the "fiscal cliff" provides some level of certainty with respect to the federal income tax structure. However, it leaves open the issue of what federal expenditures will be reduced, either through the sequestration process scheduled to begin in early spring, or through other means. That raises some interesting questions for the states, which will need to deal with uncertainty in the amount of funding they will receive from the federal government in the future, including Medicaid and the advent of a new national health care system.7 One would think that states will have to be very conservative in their budgeting process as long as the federal funding question remains, even though a couple of years of slow, steady economic growth and substantial federal funding have helped many states balance their budgets, and in some cases, enter 2013 in a surplus position.8 While some states may be in a position right now to cut tax rates, replenish rainy day funds, or pay bills for burgeoning and potentially uncontrollable expenses like Medicaid, state pension costs, other entitlement programs and education, it remains to be seen how long this will last. At least the threat of the states requesting a wholesale bailout from the federal government appears to have declined for the moment, though that could change if the federal government substantially slashes financial aid for the states in the next few months.

While the federal framework is vital in understanding how states will deal with their budget issues, the composition of each state legislature and executive branch is also important and will drive what types of state tax reforms ultimately occur from state to state. As a result of the 2012 elections, many states are going to have one-party control of state government, with majority (and in some cases, supermajority) margins in the legislatures aligned with governors who may be willing to consider state tax reforms.9 The question that will arise in these states is whether the opportunity for state tax reform can be realized in just a few short months (for example, substantial changes to the overall state tax structure, modifications in tax rates or composition of the sales tax base). In the alternative, will such supermajorities fail to enact state tax reforms, either because of the perception that nothing really needs to be changed, or because the supermajorities are too difficult to manage, falling upon their own weight and leading to discord, gridlock and extended legislative sessions? With so many states controlled by one party, it will be fascinating to watch which states, if any, will succeed in radically changing their state tax systems.

With this background, we review our 2012 predictions made in last year's outlook Alert and then consider what 2013 might bring from a SALT perspective.

2012 Predictions - A Review

  • Federal legislation on states' rights to impose remote seller collection requirements will not be adopted in 2012, although signs point to adoption in 2013. We predicted that a hybrid version of the three bills10 ultimately would be considered, but would not pass the House this year, though important developments would occur in 2012 laying the groundwork for adoption in 2013. Our prediction on where the remote seller sales and use tax bills would stand at the end of 2012 was verified. The amount of attention on this issue by Congress, in the form of hearings during the last twelve months has been significant, and the prospects for Congress to finally coalesce around one bill for adoption in 2013 are better than they were a year ago.
  • State legislative frenzy will continue on click-through nexus, affiliate nexus and notification / disclosure requirements. We predicted that at least four states would adopt clickthrough nexus laws, four states would adopt affiliate nexus rules and four states would adopt notification / disclosure requirements.11 This prediction only partially verified, as only Georgia adopted new click-through requirements, and Tennessee adopted notification / disclosure requirements applicable to Amazon.12 Four states (Georgia,13 Tennessee,14 Utah15 and Virginia16) adopted affiliate nexus rules, with Tennessee's rules applicable only to Amazon.17 The state legislative frenzy in this area seems to be dying down, as constitutional attacks on this type of legislation in Colorado18 and Illinois19 have slowed the pace of adoption. In addition, many states are pursuing a different tack - entering into agreements with Amazon and awaiting the adoption of federal legislation in this area.20
  • H.R. 1864 will pass the House but hit resistance in the Senate. As we had thought, H.R. 1864 (the Mobile Workforce Bill), which would limit the states' authority to tax the income of non resident employees and would provide uniformity for employer withholding on such income, passed the House during 2012.21 However, the bill failed to pass the Senate, primarily due to resistance from New York senators concerned about its potential revenue impact.
  • The Texas Supreme Court will continue to decide expedited Revised Texas Franchise Tax (RTFT) matters. We predicted that at least two more RTFT challenges would reach the Texas Supreme Court following the decision in Nestle, which would offer hope to taxpayers that some form of constitutional challenge to the RTFT is possible. Well, Nestle ultimately reached the Texas Supreme Court late in 2012, but the decision was adverse to taxpayers on the constitutional issues raised,22 and no other cases have reached the Texas Supreme Court to date (though other RTFT challenges are being raised in administrative and judicial forums).
  • Market-based sourcing of items other than tangible personal property will gain momentum. We predicted that at least one state that has relied on cost-of-performance rules for purposes of sales factor sourcing of services would endorse market-based sourcing. This prediction verified, as early in the year, both Arizona23 and Nebraska24 adopted legislation that will bring market-based sourcing in some form to these states in the near future.
  • California citizens will decide to vote against broad-based tax increases, and the single sales factor will remain elective. We expected that broad-based tax increases and mandatory single sales factor provisions would face significant opposition and not be adopted this year. This prediction clearly did not verify. Despite the opposition on this front, Californians ultimately embraced the broad-based income and sales tax increases, as well as the mandatory single sales factor, by approving in the November elections Propositions 30 and 39, respectively.25
  • States will follow the lead of Illinois (Sears / CME) and California (Amazon) in completing more "sweetheart deals." We predicted that at least three states would again adopt significant SALT legislation targeting incentives to a very narrow class of taxpayers, and this prediction came to pass. The Amazon agreement in Tennessee provided these types of incentives.26 The market-based sourcing legislation in Arizona, while likely to help many businesses that qualify as "multistate service providers," was designed to keep the University of Phoenix, an online education company, in Arizona.27 Finally, the Oregon legislature was brought into special session to provide a tax incentive targeted to keep Nike Corporation in the state.28
  • Significant New York corporate income tax reforms will not be adopted in budget legislation. We predicted that the 2012 budget deal would not include significant corporation franchise tax reforms. This prediction verified since the New York budget legislation did not address items such as mandatory unitary combined reporting and the elimination of distinctions between New York corporate taxes imposed on business corporations and banking corporations. Ultimately, the New York budget deal addressed only a few substantive and procedural provisions, including: (i) extensions of corporation franchise tax credits and the sales tax exemption for alternative fuels; (ii) sales tax collection requirements imposed on hotel room remarketers; (iii) amendment of some electronic filing requirements; and (iv) the rate of the Metropolitan Commuter Transportation Mobility Tax applicable to professional employer organizations.29
  • Sales tax bases will continue to expand to include certain services. We predicted that two states would marginally expand their sales tax bases by taxing more services. While several states considered such an expansion in the sales tax base, this prediction did not come to fruition. It should be noted that state tax authorities are continuing to take broad interpretations of what constitutes a taxable service, particularly in the area of Internet / electronic transactions.
  • More unique and often industry-specific transactional taxes will emerge. We predicted that at least one state would either adopt or make significant reforms to an industry specific entity-level tax. Ohio did just that at the end of the year, adopting legislation that eliminates the state's franchise tax and dealers in intangibles tax, replacing these taxes in 2014 with a special tax imposed on financial institutions that is based on a percentage of "total Ohio equity capital."30 Also, Pennsylvania enacted an industry-specific fee on producers that drill unconventional gas wells (i.e. hydraulic fracturing or fracking).31 Further, while not a state, the city of San Francisco adopted an overhaul of its payroll tax on companies doing business in the city pursuant to a voter initiative, under which a tax based on gross receipts gradually will be phased into effect.32

Our 2013 Predictions

1. The time is now . . . Congressional action on SALT legislation.

For years, proponents of SALT legislation have been frustrated by the lack of activity in Congress, particularly in the areas of sales tax simplification and potential solutions to the mobile workforce issue. The increase in the number of Congressional hearings on these and other subjects over the past two years is a strong sign of interest in SALT issues. Congressional hearings ultimately lead to subcommittee and committee votes, and then votes by the full House and Senate. While any concerted effort to re-introduce SALT legislation into the new Congress could be temporarily delayed until the debt ceiling and potential sequestration issues are resolved, the thought here is that sponsors of these bills will push for reconsideration in the near future. We think this year will feature a Congress that will desire to show that some things can get done in Washington. Passing a bill on SALT issues might be a way to do this in a manner that is less controversial than through consideration of some of the high-profile, contentious federal issues that Congress has been struggling with lately. At least one piece of SALT-specific legislation that was considered in some form by the previous Congress will be adopted this year.

2. The Multistate Tax Compact election to use equally-weighted three-factor apportionment formula continues to dominate the realm of corporate income taxation.

As noted in our end-of-year Alert, we concluded that "the decision in The Gillette Co. v. Franchise Tax Board was the most significant development of the year from a state and local tax perspective."33 Dealing with the potential applicability of an election to use Multistate Tax Compact provisions (a standard equally-weighted apportionment formula consisting of property, payroll and sales factors) in lieu of more recently adopted state-specific allocation and apportionment provisions, the taxpayer in Gillette succeeded in arguing that it was entitled to operate under the Compact provisions at the California Court of Appeal level. In contrast, the Michigan Court of Appeals held against a similarly situated taxpayer and came to a contrary conclusion in IBM.34 In 2013, we expect a number of additional developments dealing with the Compact that may serve to keep this story at or near the top of the list of material SALT stories in 2013. At the very least, taxpayers will need to consider whether the election could be taken on amended returns, or on a prospective basis in California, and in other Compact states. The expectation is that initial decisions by Texas and Oregon courts on the Compact issue will be forthcoming in 2013. Further, current Compact member states may weigh whether statutorily withdrawing from the Compact, and by extension, full Multistate Tax Commission (MTC) membership, is a viable idea. Do not expect a neat and tidy conclusion to this issue this year. Conflicting decisions by the California and Michigan Supreme Courts in Gillette and IBM in 2013 will lead to a U.S. Supreme Court challenge.

3. Bonus depreciation will be utilized as an incentive tool.

Ohio recently made significant changes to the bonus depreciation addback rules for purposes of calculating the Ohio income tax.35 Owners of non-corporate entities who claim bonus depreciation and who increase payroll in Ohio will be allowed to reduce the amount of bonus depreciation required to be added back to adjusted gross income and will receive more preferential bonus depreciation treatment. Designed to encourage investment in Ohio, the concept of allowing bonus depreciation for entities that increase their footprint in a state is intriguing, albeit constitutionally questionable.36 This seems like a concept that could readily translate to the corporate income tax in states that currently decouple from bonus depreciation. At least one state will adopt changes to current bonus depreciation policies specifically tailored to favor in-state business interests.

4. State net operating losses become less useful.

Many taxpayers often assume that the state net operating loss regimes in place mirror the federal income tax provisions. Unfortunately, that is not the case, as some states completely decouple from the federal concept, and additional limitations on the creation and utilization of state-specific net operating losses are often created. In 2012, North Carolina released a notice providing guidance on how to calculate net economic losses that serve to limit the ability of taxpayers to utilize this tax attribute in certain instances.37 In an era where fiscal prudence remains paramount, preventing the creation or use of a net operating loss for state corporate income tax purposes is something that can effectively increase revenue for the state without being characterized as a tax increase. At least two states will enact statutes or provide regulations that serve to limit or otherwise impair the creation or utilization of net operating losses.

5. Corporate income tax rates will decline, but will they disappear altogether?

Much of the pre-session chatter in the state legislatures has revolved around the potential for significant SALT reform, including a reduction in corporate income tax rates. In some cases, the possibility of completely eliminating the corporate income tax has been raised. Eliminating the income tax on corporations and replacing it with an increase in the sales tax rate or base as a means to maintain revenue levels may satisfy the dictates of reform commissions by making the state tax system less complex.38 But when the revenue effect of doing this is closely examined, will states really decide to lower the tax burden on corporations (often nonresidents) at the expense of their own citizens? Reducing the corporate income tax and replacing the revenue with rules characterized as "loophole" closers seems to be a more likely solution. At least three states will lower the corporate income tax rate, but no state will act to eliminate the corporate income tax.

6. As market-based sourcing grows in importance, the benefit-received rule begins to wane.

Consistent with the past several years, we expect that states will continue to move towards sourcing sales other than tangible personal property via market-based sourcing instead of the historic cost-of-performance method. In measuring the marketplace, for purposes of sales of services, several states have decided to concentrate on the location where the benefit of a service is received. A recent development at the MTC suggests, however, that for those states considering market-based sourcing, a shift in how the market is defined for sales of services is beginning to occur. Practically, it is difficult for a service provider to accurately determine where its customers receive the benefit of service-based transactions. Arguably, it is somewhat easier to figure out where the service was actually delivered to the customer. The MTC is proposing that the location of delivery be the preferred sourcing method instead of where the benefit of the service is received,39 and it would not be surprising for states that are active members of the MTC to go this route. At least two states will propose legislation or explanatory regulations that would source services according to the location where the service is delivered, rather than the location where the benefit of a service is received.

7. Sales tax base broadening efforts will concentrate on the digital economy.

In order for revenues from the sales tax to consistently grow, the sales tax base will need to expand to account for newly created products of the digital economy, including software as a service (SaaS), cloud computing and technical support activities. The expansion of the sales tax base can occur through new legislation, regulatory clarifications or case law interpretation of existing legislation. Given the potential challenges in passing tax increases through state legislation, and the intermittent release of court decisions, regulations and other guidance issued by state tax authorities is the most likely source of base broadening. At least five state tax authorities will provide some guidance addressing how digital products should be taxed that will effectively increase the scope of the sales tax base.

8. "Sin" taxes will increase.

By "sin" taxes, we mean taxes on tobacco, alcohol, the extraction of natural resources, and other things perceived to be bad for people or the environment. Typically, these products and services have been subject to a high level of regulatory scrutiny, and have often served as relatively easy targets for additional revenue. The imposition of the Marcellus Shale fee imposed on producers that drill unconventional gas wells (i.e. hydraulic fracturing or fracking) is one recent example of this.40 Given the uncertainty in the budgeting process this year, considering increases in the imposition of "sin" taxes may be politically popular in certain areas of the country. Doing so could provide these states with the cushion they need to counter shortfalls in federal funding. At least two states will propose legislation that would impose significant increases in "sin" taxes and/or fees.

9. Claiming Chapter 9 bankruptcies will continue to be an option for struggling local jurisdictions.

In 2012, several municipalities in fiscal distress, including Stockton, Mammoth Lakes and San Bernardino, California, implemented the "worst-case scenario," claiming bankruptcy under Chapter 9 of the U.S. Bankruptcy Code.41 While budgetary prospects for the states have improved, some of this improvement has been achieved by pushing state costs to municipalities. Expect more of the same this year, as pension obligations and other out-of-control costs pinch local economies. At least one municipality with a population of at least 100,000 will claim bankruptcy protection under Chapter 9.

10. SALT effect of the debt ceiling and sequestration debates.

As noted above, the resolution of the "fiscal cliff" is the first in a series of issues that will need to be resolved by Congress in the first three months of the year. Negotiations to increase the level of the United States' debt ceiling are in progress, as well as a concerted effort to cut expenses through the sequestration process or by other means. Federal support to the states used to cover Medicaid, pensions, and other functions, is likely to take a hit. How much of a hit, and when the uncertainty will cease are the great unknowns. While the chances of a full-scale bailout of the states seem slim, states should not expect blank checks from the government to continue in perpetuity. Rather, a half measure keeping some level of federal support in place at the last possible moment prior to crisis seems about right. That result will not be timely enough for some states. At least two states will need to commence special legislative sessions to substantially revisit their budgets due to lingering uncertainty about federal funding.

Footnotes

1 GT SALT Alert: SALT Top Stories of 2012, Dec. 19, 2012.

2 P.L. 112-240.

3 Id.

4 Id.

5 35 ILL. COMP. STAT. 5/203(b)(2)(E-10); Instructions, Form IL-4562, Special Depreciation.

6 72 PA. CONS. STAT. § 7401(3)1(q), (r); Corporation Tax Bulletin 2011-01, Pennsylvania Department of Revenue, Feb. 24, 2011.

7 As explained by an article from The Pew Center on the States, states face uncertainty concerning the level of federal funding they will receive this year. Because approximately 30 percent of state revenue is provided by the federal government, federal funding is a major issue for states. Also, the effect of the recent federal tax legislation differs by state according to the extent that a state's tax laws are tied to the Internal Revenue Code. Pamela M. Prah, Uncertainty from Washington Continues for States, STATELINE, THE DAILY NEWS SERVICE OF THE PEW CENTER ON THE STATES, Jan. 4, 2013.

8 A recent article from The Pew Center on the States indicates that states such as Florida, Indiana, Iowa, Michigan, Tennessee and Texas have budget surpluses. California is predicted to correct its budget shortfall and have a surplus in the future. However, "[s]tates say that much of their surpluses will cover sweeping cuts anticipated in federal funding later and increases in Medicaid costs." Pamela M. Prah, Surpluses Await Some States in 2013 Sessions, STATELINE, THE DAILY NEWS SERVICE OF THE PEW CENTER ON THE STATES, Jan. 8, 2013.

9 According to a recent article, 37 states currently have single party control of the legislature and governorship (25 Republican and 12 Democratic). Nanette Byrnes, U.S. States Flirt with Major Tax Changes, REUTERS, Jan. 13, 2013.

10 The Main Street Fairness Act was introduced by both the House and the Senate on July 29, 2011 (S. 1452 and H.R. 2701); the House introduced its Marketplace Equity Act (H.R. 3179) on October 13, 2011; the Senate introduced its Marketplace Fairness Act (S. 1832) on November 9, 2011.

11 Act 607 (H.B. 386), Laws 2012.

12 Ch. 624 (H.B. 2370), Laws 2012.

13 Act 607 (H.B. 386), Laws 2012.

14 Ch. 624 (H.B. 2370), Laws 2012.

15 Ch. 312 (H.B. 384), Laws 2012.

16 Ch. 590 (S.B. 597), Laws 2012.

17 Ch. 624 (H.B. 2370), Laws 2012.

18 Direct Marketing Association v. Huber, U.S. District Court, D. Colorado, No. 10-cv-01546-REBCBS, March 30, 2012.

19 Performance Marketing Association, Inc. v. Hamer, Circuit Court of Cook County, Illinois, No. 2011 CH 26333, May 7, 2012.

20 For example, Amazon has entered into tax collection agreements with Arizona, California, Indiana, Massachusetts, Nevada, New Jersey, South Carolina, Tennessee, Texas and Virginia.

21 H.R. 1864, passed in House by voice vote, May 15, 2012.

22 In re Nestle USA, Inc., Texas Supreme Court, No. 12-0518, Oct. 19, 2012.

23 Ch. 2 (S.B. 1046), Laws 2012, allowing multistate service providers to make an election to use market-based sourcing for tax years beginning from and after December 31, 2013.

24 L.B. 872, Laws 2012, effective for tax years beginning on or after January 1, 2014.

25 Propositions 30 and 39, approved by California voters at the November 6, 2012 general election.

26 Ch. 624 (H.B. 2370), Laws 2012.

27 Ch. 2 (S.B. 1046), Laws 2012.

28 H.B. 4200, 2012 1st Special Session.

29 Ch. 59 (A.B. 9059), Laws 2012.

30 H.B. 510, Laws 2012.

31 H.B. 1950, signed Feb. 14, 2012 (58 PA. CONS. STAT. § 2301 et seq.)

32 Measure E, approved by San Francisco voters at the November 6, 2012 general election.

33 California Court of Appeal, First District, No. A130803, Oct. 2, 2012; petition for review granted by California Supreme Court, Jan. 16, 2013; GT SALT Alert: SALT Top Stories of 2012, Dec. 19, 2012.

34 International Business Machines Corp. v. Department of Treasury, Michigan Court of Appeals, No. 306618, Nov. 20, 2012 (unpublished).

35 Substitute House Bill 365, enacted Dec. 11, 2012.

36 Caterpillar, Inc. v. Department of Treasury, 488 N.W.2d 182 (Mich. 1992).

37 North Carolina Department of Revenue, "Important Notice: Computation of Net Economic Loss," Aug. 17, 2012.

38 According to a recent article, there are major tax reform proposals in Kansas, Louisiana and North Carolina to replace income taxes with sales taxes. Also, Oklahoma may try again to reduce income taxes. Nanette Byrnes, U.S. States Flirt with Major Tax Changes, REUTERS, Jan. 13, 2013.

39 Multistate Tax Compact Art. IV Recommended Amendments, Multistate Tax Commission Uniformity Committee, May 3, 2012.

40 H.B. 1950, signed Feb. 14, 2012 (58 PA. CONS. STAT. § 2301 et seq.)

41 See 11 U.S.C. § 901 et seq. Notably, states are precluded from claiming bankruptcy under Chapter 9 or any other provision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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