United States: California Tax Developments

Last Updated: May 22 2014
Article by Marty Dakessian, Brian W. Toman, John R. Messenger, Mike Shaikh, Shirley J. Wei and Erin J. Mariano

Most Read Contributor in United States, October 2017

Case Updates

Superior Court deems Comcast and QVC are not unitary; determines early termination fee is business income. On March 6, 2014, a Los Angeles Superior Court issued its final decision in Comcon Production Services, Inc. v. Franchise Tax Board.1 Two issues were before the court: (1) whether Comcast was unitary with its subsidiary, QVC, and (2) whether an early termination fee received by Comcast as a result of a failed merger with MediaOne was business income subject to apportionment, or non-business income allocable outside California. In a split decision, the court ruled that (1) Comcast and QVC were not a unitary business, and (2) the termination fee was apportionable business income.

On March 28, 2014, the parties lodged a Proposed Statement of Decision with the court but requested additional time to compute the proper amount of refund due to Comcast.

Takeaway: We do not yet have a written decision, but the court's ruling on the unitary business issue should provide useful guidance to taxpayers in future unitary business analyses. The ruling on the MediaOne termination fee issue extends the realm of activities that generate business income for California tax purposes, and makes the scope of business income in California consistent with its scope in many other states.

Court of Appeal affirms online travel companies are not responsible for collecting local transient occupancy tax on markup costs. On March 27, 2014, a California Court of Appeal filed its opinion in In re Transient Occupancy Tax Cases.2 The issue was whether, under San Diego's transient occupancy tax ("TOT") ordinance, various online travel companies ("OTCs") were responsible for collecting and remitting the TOT on service fees and markups that they charge for reserving hotel rooms through their websites.

San Diego's TOT ordinance reads as follows: "For the privilege of Occupancy in any Hotel located in the City of San Diego, each Transient is subject to and shall pay a tax in the amount of six percent (6%) of the Rent charged by the Operator."3 The Court of Appeal stated that the ordinance imposed tax on the amount charged by the hotel operator. Focusing its analysis on the plain language of the statute and its prior decisions on whether OTCs were liable for transient occupancy taxes in other cities,4 the court held that OTCs are not hotel operators. OTCs purchase blocks of rooms at a wholesale price. They then sell those rooms at a price higher than the wholesale price, with at least a portion of the difference being attributable to a service fee charged to the purchaser. Since the OTCs are not operators, those markups and service fees collected by them are not subject to the TOT.

Takeaway: TOTs have been subject to plenty of litigation in California. The local ordinances imposing TOTs come in a variety of types, but this Court of Appeal decision should reduce some of the uncertainty for businesses collecting these taxes.

Motion for Summary Judgment filed in Abercrombie case. In Abercrombie & Fitch Co. & Subsidiaries v. Franchise Tax Board,5 Abercrombie & Fitch filed a refund action with the Fresno County Superior Court alleging that an election available only to taxpayers operating solely in California violates the commerce clause. The election allows California unitary groups to compute their California taxable income using the separate reporting method. That method is unavailable to taxpayers operating in and out of the state.

The taxpayer filed its motion for summary judgment and supporting documents April 18, 2014. Summary judgment is set for July 2, 2014. The FTB has until June 18, 2014 to file opposition to the motion.

Takeaway: This case involves issues similar to those considered in the Court of Appeal's decision in Cutler v. FTB.6 In that case, litigated by Reed Smith, the Court of Appeal held that an in-state investment requirement for a tax incentive discriminated against interstate commerce. We believe that in light of past litigation, and cases like Abercrombie that are still pending, the legislature should heed a warning that discriminatory tax statutes will be challenged and ultimately struck down.

Trailing nexus at issue in C.V. Starr & Co. v. Franchise Tax Board.7 This case involves the question of when two related corporations stop being unitary. In this case, C.V. Starr and its related entity, AIG, were in the midst of a heated public split. If they were still unitary, dividends received by C.V. Starr from AIG and the subsequent sale of AIG's stock would both be considered apportionable business income. In the audit, the FTB determined that both the dividends and gain from the sale of stock generated business income through the first half of 2006, and non-business income for the second half of 2006. C.V. Starr took the position that the AIG dividends and gain from the entire year should be classified as non-business income because C.V. Starr and AIG were not unitary.

On February 18, 2014, the FTB filed its Memorandum of Points and Authorities in support of its Motion for Summary Judgment. Chiefly, the FTB argues that under the functional test for determining whether income is business income,8 C.V. Starr had the right to direct and control its ownership interest in AIG, and that the income generated from the dividends and sale of stock materially contributed to generating its business income. And, because that income served an operational function in C.V. Starr's business, classifying the income as business income does not violate the U.S. Constitution.

Takeaway: The facts of this case are unique in that during the period at issue, AIG and C.V. Starr were going through a deliberate and acrimonious split. Nonetheless, this decision in this case should provide useful guidance in future cases for deciding exactly when a unitary business ceases to exist.

Responses to amicus briefs filed in Gillette v. Franchise Tax Board9 On January 22, 2014, the taxpayers and the FTB both filed briefs in response to the briefs filed by amicus curiae in Gillette v. Franchise Tax Board, including the amicus brief filed by Reed Smith in support of Gillette on behalf of the Institute for Professionals in Taxation.

In its response brief, Gillette responded to the amicus briefs filed by the Multistate Tax Commission and several states by reiterating that the Multistate Tax Compact is a binding interstate compact, the election contained in the Compact is clear and unambiguous, and compact law and the contract clause preclude California from unilaterally eliminating the election. The taxpayers also filed a motion for judicial notice and attached academic articles discussing the relevance of established interstate compact law.

The FTB's response brief contends that the Compact allows states to change their provisions, that compact law does not require a waiver of rights to enact legislative changes, that the taxpayers' interpretation of the Compact is incorrect, and that changes to the Compact election do not violate the contract clause.

Takeaway: Now that responses to amicus briefs have been filed, the case should be ready to be scheduled for oral arguments. Typically, the California Supreme Court has scheduled arguments one to two years after briefing finishes.

Gilbert Hyatt sues for injunctive relief against the Franchise Tax Board and State Board of Equalization for dragging feet in a 20+ year audit. On April 4, 2014, Gilbert Hyatt filed a complaint for permanent injunctive relief against the FTB and the SBE in federal court in the Eastern District of California.10 The complaint claims that the FTB violated the due process and equal protection clauses for investigating and assessing amounts on taxes owed as the result of an ongoing residency audit that started in 1993, and an ongoing sourcing assessment that was first made in 2007 for the same six-month period of time and is still stuck at the administrative level. In effect, the FTB is assessing Mr. Hyatt for being a California resident and for being a California nonresident for the same period of time. As a result of the more than 20-year administrative delay, the complaint alleges that Mr. Hyatt has been deprived of his right to a meaningful opportunity to be heard. Mr. Hyatt's claim is based on the FTB's inability to provide a full, fair, and timely adjudication of any tax, penalty, or interest he might owe.

At issue in the audit is Mr. Hyatt's residency status for a six-month period bridging 1991 and 1992, more than 22 years ago. As the result of numerous administrative delays, the audit controversy is still incomplete. However, the interest and penalties that have accrued now total more than $55 million—a staggering amount.11 In earlier litigation, Mr. Hyatt sued the FTB in Nevada state court for tortious conduct during the audit, including fraud, invasion of privacy, intentional infliction of emotional distress, abuse of process, and breach of confidential relationship. Although the FTB denied wrongdoing, Mr. Hyatt was vindicated when a jury found that the FTB acted with malice, fraud, and oppression during its audit, and awarded him $138 million in compensatory damages and $250 million in punitive damages. That case had previously made its way for pretrial review by the U.S. Supreme Court, where Mr. Hyatt won a unanimous decision against the FTB.12

Takeaway: This is the latest installment in the long saga surrounding Mr. Hyatt's residency dispute with the FTB. The complaint describes in detail the discriminatory treatment he suffered at the hands of the FTB for more than two decades. The filing includes a timeline of events that have transpired over the 20-plus years, and the inexplicable delay by the FTB and SBE in the audit and the continuing administrative appeal.

Legislation

(a) Updates on California's New Tax Incentive Regime

In an earlier update, we reported on the close of California's Enterprise Zone program and the inception of the state's new incentive programs. Below are updates on the progress of each of those incentives.

New Employment Credit The New Employment Credit replaces the Enterprise Zone program's old hiring credit, which had historically generated controversy over the life of the EZ program. The New Employment Credit is administered by the FTB. To qualify for the credit, employers must hire "hard to hire" employees in certain targeted geographic areas of the state, and they must increase the number of full-time employees every year.

In January 2014, the FTB launched its New Credit Reservation System, through which employers must register themselves and qualifying employees within 30 days of completing Employment Development Department paperwork for the same, to be eligible to receive the credit. In March 2014, the FTB launched the Annual Certification of Employment online system, through which employers must annually register qualified employees.

Employers must complete each step above to qualify for the New Employment Credit. If you have questions about the mechanics or requirements of the credit, please contact one of the members of the California Team.

California Competes Tax Credit Program The new California Competes Tax Credit program is run by Go-Biz, the Governor's Office of Business and Economic Development. It is an income tax credit available to businesses that want to move to or stay in California. A pool of credits, starting with $30 million through June 2014 and reaching $200 million annually beginning 2016, is allocated to the program every year. As the name implies, businesses compete with one another by promising the most investment in California while requesting the least amount of credit.

There are four general phases to the application process. In the first phase, the applicant answers a series of questions that will be screened through an automated computer review for ranking among applicants. The top phase-one applicants make it to the second phase, where they are evaluated on both qualitative and quantitative metrics. Applicants making it through the first two phases will generally receive the credit. For those applicants, the third phase involves negotiation of credit terms. These terms include claw-backs, length of the contract, and other terms. But the credit amount is not negotiable. Finally, in the last phase, the California Competes Tax Credit Committee (consisting of the Go-Biz Director, Department of Finance Director, State Treasurer, and one appointee each from the Senate and Assembly) will review and approve or disapprove of the tax credit. The last phase will be in a forum open to the public.

Takeaway: The deadline for the first application period ended April 14, 2014. Although that period has now closed, there will be more opportunities to apply for the program in the second half of this year. Go-Biz will announce the next application period before July 1, 2014.

New Manufacturing/Research & Development Regulation The new incentive regime provides a sales tax exemption for manufacturing and R&D equipment.13 The Sales and Use Tax Division of the Board of Equalization has held multiple interested parties meetings since late last year, soliciting input from the public on the scope of a new regulation implementing the exemption. At the April 22, 2014 SBE meeting, the Business Taxes Committee presented the proposed regulation to the Board for approval and authorization; it is now published for review by the public. The SBE is tentatively scheduled to act on the regulation at its July 1, 2014 meeting.

Takeaway: The new regulation impacts a broad range of taxpayers. The new manufacturing and R&D equipment sales tax exemption has the potential to be a lucrative benefit because, unlike the franchise tax credit offered under the Enterprise Zone program, the new manufacturing/R&D exemption provides a partial exemption from tax. Taxpayers qualifying for the sales tax exemption will not have to ensure they meet credit-use limitation requirements based on their franchise tax amount and geographic footprint in the state.

Footnotes

1 Los Angeles Superior Court, Case No. BC489779.

2 San Diego Superior Court, Case No. B243800.

3 San Diego Municipal Code § 35.0103.

4 In re Transient Occupancy Tax Cases (Nov. 1, 2012, B230457) (non-published - Anaheim), (Nov. 1, 2012, B236166) (non-published - Santa Monica).

5 Fresno Superior Court, Case No. 12CECG03408.

6 208 Cal. App. 4th 1247 (2012).

7 San Francisco Superior Court, Case No. CGC-13-527952.

8 See Hoechst Celanese Corp. v. Franchise Tax Board, 25 Cal. 4th 508 (2001).

9 Supreme Court Case No. S206587.

10 Hyatt v. Chiang, U.S. District Court, Eastern District of California, Case 2:14-cv-00849-GEB-DAD.

11 Hyatt v. Chiang, U.S. District Court, Eastern District of California, Case 2:14-cv-00849-GEB-DAD, at page 4.

12 Franchise Tax Board v. Hyatt, 538 U.S. 488 (2003).

13 Cal. Code Regs. §1525.4.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.