United States: Alabama Legislative Update—Rounding The Corner In The Last Lap: An Update On Pending And Recently Enacted Tax Legislation

The 2014 regular session of the Alabama legislature has been underway for over two months and is nearing its end. The legislature is off this week for Spring Break, then returns on Tuesday, April 1, for three final meeting days in which they will tie up loose ends, chiefly the Education Trust Fund and General Fund budgets. Lawmakers have introduced many important tax bills, with several making significant progress through both houses. In addition, Governor Bentley has signed two significant business and tax bills into law: the landmark Alabama Taxpayer Fairness Act and the Alabama Limited Liability Company Act of 2014; while, two more bills await his signature.

The Alabama Taxpayer Fairness Act (HB 105 Sub., Act No. 2014-146), effective October 1, is the most important tax bill enacted so far this year. As mentioned in our last Alabama SALT Alert, this landmark legislation establishes the Alabama Tax Tribunal (ATT), an independent tax appeals agency separate from the Alabama Department of Revenue (ADOR). In doing so, the act abolishes the current Administrative Law Division (ALD) of the department and transfers all of the ALD's personnel and equipment to the newly formed tax tribunal under the executive branch. Taxpayers may also appeal final assessments of sales, use, rental, and lodging taxes issued by self-administered municipalities and counties or their contract-auditing firms but, as a compromise, the cities and counties are permitted to affirmatively opt-out of ATT jurisdiction and hire their own impartial administrative law judge (ALJ).

Introduced in various forms over the last decade, this pro-taxpayer change passed in large part due to the diligent efforts of hard-working sponsors, Representative Paul DeMarco and Senator Bryan Taylor, with Senator Paul Sanford as the ardent sponsor of the compromise bill. Current and former Alabama State Bar Presidents Anthony "AJ" Johnson, Jim Pratt, and Alyce Spruell were also instrumental in the bill's success. The support of the business community and the Alabama Society of CPAs was also crucial.

The legislature also passed and Governor Bentley signed into law the Alabama Limited Liability Company Act of 2014 (HB 2, Act No. 2014-144), which contains several key amendments to Alabama's LLC laws. Notable among the amendments are those providing for the formation and recognition of series LLCs and updating the state's adherence to the federal check-the-box regulations.

Various tax bills of statewide importance introduced during this legislative session are detailed below. If you have any questions about these bills, or any other tax bills introduced during this session, please contact one of the members of our Alabama State and Local Tax (SALT) Practice Team.

I. Income/Business Privilege Taxes

Historic Structures Income Tax Credit (HB 274 / SB 257): Act No. 2013-241 provided a tax credit against the tax liability of the owner or its partners/members for the rehabilitation, preservation, and development of certain historic structures. The credit can be applied against the state portion of the financial institution excise tax and income taxes. The annual aggregate amount of any tax credits that may be reserved is $20 million, and the maximum credit for a commercial project is $5 million. The credits may not be applied until the 2014 tax year and the act is scheduled to sunset three years from the date of enactment. The Alabama Historical Commission finalized regulations on December 20, 2013, and the application forms are available on the commission's website.

HB 274 increases the annual cap on these tax credits from $20,000,000 to $30,000,000 and provides for the transferability of the tax credits. SB 257 likewise provides for the transferability of tax credits, and additionally, expands the tax credit's availability to offset business privilege tax, insurance premium tax, and certain utility taxes. Unlike HB 274, SB 257 does not increase the annual cap on tax credits available. Both bills repeal the current three-year sunset provision, making the historic rehabilitation tax credit permanent.

Business Privilege Tax Exemption for Dormant Entities (SB 6): This bill would exempt any legal entity that becomes dormant from the Alabama business privilege tax, even if the entity fails to dissolve or withdraw its qualification to conduct business with the Secretary of State. For purposes of this bill, an entity is deemed to be dormant if—for two consecutive years prior to the taxable year—the entity has not owned property, produced income, or carried out any business activity or function of any type.

Research and Development Tax Credit (SB 122): This bill would provide for a state income and financial institution excise tax credit for research and development expenses parallel to the I.R.C. § 41 tax credit, with some modifications. In addition, if a taxpayer claiming the credit has fewer than 150 employees, the credit would be refundable upon the taxpayer's election. An additional credit (or "super credit") is available if the taxpayer engages certain universities or research institutes located in Alabama to conduct the related research.

SB 122 passed the Senate and is currently pending in the House Ways and Means Education Committee.

Capital Loss Carryforwards (SB 5): Under current Alabama law, an Alabama resident who incurs a capital loss is allowed to use that loss as a deduction only in the year in which the loss is incurred. This bill would allow individual taxpayers to carry an unused capital loss forward for up to three years in the same manner as I.R.C. § 1212(b).

Amendments to the Alabama Accountability Act (HB 558): This bill would amend several of the tax credit provisions applicable to individuals and businesses under the Alabama Accountability Act of 2013. Specifically, the bill would remove the $7,500 annual limitation on contributions made by individual donors. The bill also allows certain pass-through entities, such as S corporations, partnerships, and LLCs, to make contributions to scholarship-granting organizations and pass the credits through to their shareholders, partners, or members. HB 558 changes the release date of funds available to students not enrolled in failing public schools from September 15 to May 15. Finally, the bill changes the reporting period for scholarship-granting organizations from the calendar year to the school year.

HB 558 was amended on the House floor to change the definition of "failing school" under the Accountability Act. The House passed the bill, as amended; it is now pending in the Senate Fiscal Responsibility and Accountability Committee.

Repeal of Income Tax Credits under the Alabama Accountability Act (HB 307 / SB 187): In contrast to the above, both of these bills would repeal the income tax credits available under the Alabama Accountability Act of 2013. HB 307 would amend specific sections of the Alabama Accountability Act; while, SB 187 would repeal the entire act. These changes would effectively eliminate income tax credits for parents who elect to transfer a child enrolled in a "failing" K-12 school to a non-"failing" public or private school and for individuals and C corporations who make contributions to qualified scholarship-granting organizations. HB 307 would also rename the intact portions of the Accountability Act the Local Control School Flexibility Act of 2013.

The Alabama Job Creation and Taxpayer Protection Act (HB 311): This bill would require any company receiving a tax incentive or subsidy to build or expand operations in Alabama to commit to a certain level of job creation in the state for no less than five years. The bill requires such a company to provide annual certifications each tax year of the actual number of jobs created, to be verified by the State Department of Labor. The bill requires any company failing to meet its agreed level of job creation to refund any incentives or subsidies on a pro rata basis.

II. Transactional Taxes

Retroactive Clarification of Private School Sales/Use Tax Exemption (HB 129 / SB 96): These bills would retroactively clarify and confirm that private schools, colleges, and universities are exempt from state and local sales and use taxes. The necessity of these bills was caused by Chief Administrative Law Judge Bill Thompson's recent ruling in Columbia Southern Education Group v. Baldwin County, Admin. L. Div. (Aug. 15, 2013) (on appeal), where he held that private schools in Alabama are not exempt from state or local sales and use taxes and that a 1959 act and a 1961 ADOR regulation were invalid.

HB 129 passed the House and was reported favorably out of the Senate Finance and Taxation Education Committee. It now awaits a vote by the full Senate. SB 96 passed the Senate and was reported favorably out of the House Ways and Means Education Committee. It now awaits a vote by the full House.

Perennial "Alabama Arise" Bill (HB 130): This bill proposes a constitutional amendment to repeal the deduction for federal income taxes for individual Alabama taxpayers. Using that newfound revenue, the bill would also propose a constitutional amendment to exempt food and over-the-counter drugs from the state 4% sales tax (but not local sales taxes).

New Sales Tax Exemption for Food and Increased Sales Tax Rate (SB 287): This bill, like the perennial "Alabama Arise" bill, would exempt sales of food from the state's sales and use tax. This bill would also exempt sales of food through coin-operated vending machines from state sales and use tax. This new exemption would be phased in over a four-year period, with the sales and use tax rate on food being decreased by one percent each year. To pay for the lost revenue, the bill proposes to increase the state's general sales and use tax rate to five percent, also phasing in the rate increase over a four-year period.

SB 287 was reported favorably out of the Senate Finance and Taxation Education Committee and now awaits a vote by the full Senate.

Estimated Sales Tax Payment Threshold (HB 151 / SB 46): Under current law, an Alabama taxpayer whose average monthly state sales tax liability was $1,000 or greater during the preceding calendar year is required to make estimated sales tax payments to the Department of Revenue on or before the 20th day of the month in which the liability occurs. These bills would increase the threshold for estimated payments from $1,000 to $2,500.

HB 151, the Small Business Tax Relief Act, passed the House and Senate and now awaits Governor Bentley's signature, which is expected.

Prepaid Wireless Service Evidenced by Card Subject to Sales Tax (HB 373): Under current law, prepaid calling cards and prepaid authorization numbers are deemed to be tangible personal property, the sale of which is subject to sales and use tax. This bill amends the definition of prepaid telephone calling card to clarify that prepaid wireless service that is evidenced by a physical card and prepaid wireless service that is not evidenced by a card but is considered a prepaid authorization number are subject to sales and use tax. The necessity of this bill was caused by Chief Administrative Law Judge Bill Thompson's decision in Beauty & More, Inc. v. Alabama Department of Revenue, Admin. Law Div. Dkt. No. S. 12-336 (June 10, 2013), where he held that the sale of prepaid cell phone services was not subject to sales tax under Alabama Code § 40-23-1(a)(13).

HB 373 was passed by the House and was reported favorably out of the Senate Finance and Taxation Education Committee. It now awaits a vote by the full Senate.

III. Ad Valorem Property Taxes

Business Personal Property Online Filing System (HB 108): This bill requires the ADOR to create a centralized online filing system for business personal property tax returns, called the Optional Personal Property Assessment Link (OPPAL). All Alabama taxing jurisdictions will be required to accept business personal property tax returns filed using OPPAL; however, the system is optional to taxpayers. Not only does HB 108 create a single-point filing system, it also provides uniform procedures and standardized formatting for online filing across all 67 Alabama counties. The OPPAL system must be operational no later than September 30, 2016, and will be available for use in tax periods beginning on or after October 1, 2016. HB 108 also creates a ten-member advisory committee to review ADOR's design and operation of the system and to make recommendations regarding system requirements and functionality to the Commissioner of Revenue. The advisory committee must hold its first meeting no later than September 30, 2014.

In addition to OPPAL, HB 108 also creates a non-itemized short-form tax return for certain small businesses. The short-form return will be available to taxpayers who either: (1) filed an itemized personal property tax return that included $10,000 or less in total property acquisition costs in the previous tax year, or (2) properly filed a short form in the previous tax year. If the short-form return is used, the $10,000 amount will be used by the local tax assessing official as the market value of the property when calculating the taxes due.

The version of the bill that passed the House was amended in the Senate Job Creation and Economic Development Committee to allow counties with their own online filing systems for business personal property tax returns to continue to use those systems as an alternative to OPPAL. HB 108 now awaits a vote by the full Senate.

Quadrennial Reappraisals (HB 215): Under existing law, the ADOR supervises and regulates the annual reappraisal of all property in Alabama. HB 215 would provide that Class II and Class III real property in Alabama (i.e., most business and residential property) would not be subject to reappraisal more often than once every four years, provided that the level of equalization for a particular county falls between 90 and 105 percent with a coefficient of dispersion of no greater than 20, as determined by an annual sales ratio study conducted by the ADOR.

IV. Miscellaneous

"Alabama Taxpayer Fairness Act" (Substitute HB 105): The Alabama Taxpayer Fairness Act (Act No. 2014-146) was signed into law by Governor Bentley on March 11. It represents a modified version of the bill formerly referred to as TBOR II. Most importantly, Substitute HB 105 establishes the Alabama Tax Tribunal (ATT) by abolishing the current Administrative Law Division of the ADOR and transferring both the personnel and equipment to a newly formed, independent state agency under the executive branch. The ATT provisions are substantially similar to the American Bar Association's Model State Administrative Tax Tribunal Act, except that appeals from the ATT will continue to be filed with the appropriate circuit court rather than with the Court of Civil Appeals. The annual appropriation earmarked for the ALD is carved out and assigned to the ATT, so there should be no additional cost to Alabama taxpayers for creating the tribunal. Alabama was in the distinct and shrinking minority of states that lacked an independent tax appeals tribunal, recently receiving a "D" grade on the latest State Tax Due Process Scorecard issued by the Council On State Taxation (COST) primarily for this reason.

The stated purpose of the ATT is to:

Perhaps of equal importance will be the ability of taxpayers, for the first time, to appeal most assessments issued by localities or their contract-auditing firms to the new ATT. Current Chief Administrative Law Judge Bill Thompson is set to become the first Chief Judge of the ATT.

There are four key features of the ATT:

1. ATT judges are appointed by the Governor for six-year terms. There must be at least one ATT judge, but no more than three in total. In addition, the Governor may appoint pro tem judges if necessary. Unlike previous versions of the bill, there is no Senate confirmation or nominating committee involved in the appointment of ATT judges.
2. Taxpayers may appeal final assessments of sales, use, rental, and lodging taxes issued by or on behalf of self-administered cities and counties to the ATT, unless the governing body of the self-administered city or county opts out.
3. No filing fees will be imposed on taxpayers for appeals to the ATT.
4. At the end of each six-year term, the Governor may reappoint a judge to serve another term or appoint a new judge. The initial judge will be ADOR Chief Administrative Law Judge Bill Thompson.

Allowing taxpayers to appeal final assessments issued by self-administered cities and counties or their contract-auditing firms is a major step toward addressing the frustration of the business community and tax practitioners with differing interpretations of the law and varied appeals procedures offered by the many self-administered localities and their private auditing firms. This provision is designed to work hand in hand with the new Optional Network Election for Single Point Online Transactions (ONE SPOT) e-filing program for local sales, use, and rental taxes.

Substitute HB 105 also includes several updates and changes to the existing procedural protections contained in the Alabama Taxpayers' Bill of Rights/Uniform Revenue Procedures Act of 1992. Those changes include:

• Date of mailing for preliminary and final assessments: A preliminary or final assessment must be appealed within 30 days from the date of actual mailing to the taxpayer (or date of personal service, whichever occurred earlier) instead of the date of its entry under current law.
• Option to appeal net operating loss (NOL) adjustments to the ATT: This clarifies that taxpayers have the option, but are not required, to appeal to the ATT any proposed adjustments by the ADOR to their NOL deductions or carryovers, even though the proposed adjustment does not result in an assessment of tax or a denied refund claim.
• "Innocent spouse" relief: This conforms to two intervening changes to the "innocent spouse" rules under the Internal Revenue Code to expand the scope of the defense for Alabama spouses. An Alabama bill passed in 2012 only partially adhered to the pro-taxpayer federal changes.
• Increased power of the Taxpayer Advocate: The Taxpayer Advocate may correct a final order issued by the ATT if there is newly discovered evidence that shows the taxpayer was incorrectly assessed.
• Dormant preliminary assessments: Taxpayers have the option of appealing a preliminary assessment to the ATT or the appropriate circuit court after five years from the date of entry if the assessment has not been made final or withdrawn by the taxing authority. Under current law, the issuance of a preliminary assessment suspends the statute of limitations indefinitely, during which a taxpayer has no appeal rights.
• Security exemption for appeals to circuit court: In cases in which a final assessment is appealed directly to circuit court (or from the ATT to circuit court), a taxpayer who has a net worth of less than $250,000 need not post an appeal bond or pay the disputed tax before filing the appeal. Currently, the threshold is $100,000 in net worth.
• Consultation with department attorney on revenue rulings: This change requires the ADOR attorney assigned to a revenue ruling request to consult with the taxpayer and his or her authorized representative prior to issuing the ruling.
• Penalties: Unlike previous versions of the TBOR II bill, the current bill contains no increases to existing penalties; no new penalties for filing frivolous returns or appeals, or for failing to file certain pass-through entity information returns; and no changes to the one-year period for reporting IRS audit adjustments to the ADOR.

A last-minute amendment affords self-administered cities and counties a narrow window of time to enter a preliminary assessment against a taxpayer who was audited by the ADOR and issued a final assessment for additional sales, use, rental, or lodging tax. These localities have either six months from the date the ADOR enters the final assessment against the taxpayer or 60 days from the date of mailing (or email transmission) of a copy of the final assessment by the ADOR to the self-administered locality, whichever expires first, to enter a preliminary assessment against the taxpayer.

The assessment is limited to the same disputed adjustment and tax periods. The taxpayer is encouraged to approach the locality and negotiate a voluntary compliance agreement before the final assessment is issued. The bill also clarifies that self-administered cities and counties have the ability to enter into installment agreements with taxpayers, similar to the powers of the Alabama Commissioner of Revenue.

Alabama Limited Liability Company Law of 2014 (Act No. 2014-144): This Alabama Law Institute bill substantially amends Alabama's LLC laws, provides for the formation and recognition of series LLCs, and updates the state's conformity with the federal check-the-box regulations, effective January 1, 2015.

Under current Alabama law, domestic or foreign LLCs are treated as partnerships for all state tax purposes unless classified otherwise for federal income tax purposes. If a single member LLC is classified as a disregarded entity for federal income tax purposes, for example, the SMLLC would be classified in the same manner for state tax purposes, i.e., as a disregarded entity for state income, sales, use, rental, payroll, motor fuel excise, etc. taxes. Act No. 2014-144 updates the federal conformity provision by providing that LLCs are treated as partnerships for state tax purposes unless classified otherwise for "federal tax purposes." By deleting the word "income" from the current federal conformity provision, Alabama law will align with relatively recent changes to the U.S. Treasury Department's check-the-box regulations in the area of SMLLCs and excise and payroll taxes.

In addition to the federal conformity change, the act provides for the establishment of domestic series LLCs and recognition of foreign series LLCs. Alabama joins the 11 other states, the District of Columbia, and Puerto Rico, all of which have enacted legislation permitting the creation of series LLCs with internal liability shields within each series. Under the new law, an LLC may establish, by way of its LLC agreement, one or more designated series of assets with which certain members might be associated. Each series has separate rights, powers, and duties with respect to the specific property or obligation within the series, and each series can have a separate purpose or investment objective. Tax and business law practitioners anxiously await the Treasury's finalization of its proposed series LLC regulations later this year.

Alabama Taxpayer Audit Protection Act (HB 42): This bill would make it unlawful for an officer, agent, or employee of the ADOR, any county, any municipal government, or a third party acting on behalf of or as agent for the state or locality, to intentionally mislead, threaten, or coerce a taxpayer. The four types of misconduct covered under the bill are: (1) providing a false statement or failing to fully disclose relevant information under oath with respect to a material matter relating to official business of ADOR, county, or municipality and involving the audit of a taxpayer; (2) violating Alabama tax law or ADOR, county, or municipality rules for the purpose of retaliating against or harassing a taxpayer or the taxpayer's representative, or for personal gain or benefit of the taxpayer; (3) falsifying or destroying documents to conceal mistakes made by an officer, agent, or employee with regard to a material matter relating to official business of ADOR, county, or municipality and involving the audit of a taxpayer; and (4) threatening to audit a taxpayer for purpose of extracting personal gain or benefit, or for the purpose of retaliating against or harassing a taxpayer. Any violation is grounds for a summons and complaint in lieu of a custodial arrest and can serve as a basis for dismissal or other disciplinary action by the ADOR, county, or municipal government.

HB 42 passed the House and was reported favorably by the Senate Finance and Taxation Education Committee. It now awaits a vote by the full Senate.

Suspension of Tax Collection When Cost Exceeds Tax Collected (HB 97): This bill would require the ADOR to suspend the collection of a tax or fee when the administrative cost of collecting the tax or fee exceeds the total amount of the tax or fee collected for the previous three fiscal years. The ADOR may not suspend the collection of certain taxes or fees, for example, a tax or fee mandated by federal law or regulation. In addition, the bill requires the department to notify any affected localities if it determines that the suspension of a tax or fee would reduce local revenues.

HB 97 was passed by the House and was reported favorably by the Senate Finance and Taxation Education Committee. It now awaits a vote by the full Senate.

Note: several members of our firm participated in drafting or lobbying for a number of these bills. We plan to provide a legislative wrap-up at the conclusion of the session.

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