California Tax Update

Do you do business in the state of California, or are you considering expanding into the state? Join our State and Local Tax team for a webinar on December 7 and learn the ins and outs of California tax filing. This session will discuss registration and forms, various taxes, starting and closing a business, and more! Learn more and register here.

OH School District Income Tax: Failure to File Notices

The Ohio Department of Taxation began sending Failure to File notices by regular mail on June 5, 2017 to taxpayers who:

  • Have not filed an Ohio School District Income Tax Return Form SD 100 for 2013, 2014 and/or 2015; and
  • Appear to have lived in a taxing school district based on the school district number and/or mailing address reported on the taxpayer’s Ohio Individual Income Tax Return (Ohio Form IT-1040) filed for 2013, 2014, and/or 2015.

To learn more about the Ohio School District Income Tax, read their Guide.

If you receive(d) a notice and need assistance, please contact a member of our State and Local Tax Team.

 

Navigating SALT Nexus and Compliance for Not-for-Profits

As not-for-profit organizations expand their reach, many are unaware that they may be creating nexus in states where they have previously had a limited presence. Here’s what they need to know.

By Andrew Gray, CPA

August 18, 2015

State nexus and compliance for public charities and private foundations has been a long-standing issue, and as these not-for-profit organizations are able to expand their reach through technology and other means, state requirements for not-for-profits are also increasing. Many not-for-profits do not know that the states in which they conduct business have many rules that may apply to them.

State and local governments are actively interested in the charities that operate within their borders to ensure that the organizations’ assets are used for their intended charitable purposes and to protect their residents from being fraudulently solicited for donations. These governments are also interested in the financial gain from regulating charities. They may impose fees on the not-for-profit organizations based on their size (or other factors). In addition, if a not-for-profit organization has income from business unrelated to its exempt purpose, both the federal and state taxing authorities want to make sure they receive their share of any taxes on that income.

Not-for-profit organizations should consider the following factors before beginning any business activity within a state, to address the increased scrutiny of state and local authorities.

1.   Interested parties: The organization’s audience

Becoming compliant with the laws of state and local jurisdictions is increasingly important because of the accessibility of information to the general public. Several interested parties could be actively seeking information about the not-for-profit’s status with various states, including:

  • The IRS;
  • Foundations and donors;
  • Researchers and watchdog groups;
  • Legislators;
  • News media; and
  • State agencies and other federal agencies.

While the searching activities for the above groups are unknown, the information is available to them. In their efforts to increase revenue and protect their residents, it is probable that they would use what is readily available. In addition, the IRS and many states are sharing information about not-for-profits. Further, potential donors often use information from their state to ensure the organization is in compliance with state laws and not a fraudulent enterprise.

2.   Federal tax law requires compliance with states

Regs. Secs. 1.6033-3(c)(1) and -2(a)(2)(iv) require private foundations to furnish a copy of their annual Form 990-PF, Return of Private Foundation, to the attorney general of the following places:

  • Where the organization’s principal office is located;
  • Where the organization was created or incorporated;
  • Any state the organization reports to concerning its organization, assets, or activities; and
  • Any state where the organization has registered (or otherwise notified the state) that it intends to be (or is) a charitable organization or holder of property devoted to a charitable purpose.

While this federal requirement does not explicitly apply to public charities, if the state requires a copy of the Form 990, Return of Organization Exempt From Income Tax, the organization must comply. In fact, Form 990 contains a list of states in which the form is required to be filed.

Public charities should be careful to send only the public disclosure copy of Form 990 to the states to ensure that donor information (contained on Schedule B, Schedule of Contributors) and other sensitive information are not released to the public. States often publish the Forms 990 on a website or send copies to those who request them. Generally they do not check to be sure that a public disclosure copy was sent.

In a recent case (Center for Competitive Politics v. Harris, No. 14-15978 (9th Cir. 5/1/15)), the Ninth Circuit upheld a California regulation requiring charities that are registered to solicit contributions in the state to file a nonredacted copy of Form 990, Schedule B. California maintains it does not make Schedule B available to the public, but, even so, organizations should be aware of the potential exposure in California and the need to provide only the required copy to any other state that requests it.

3.   Regulating solicitation and annual compliance requirements

A solicitation is defined as any request for a contribution, through any medium, i.e., asking for a gift or selling goods or services. If the organization is soliciting or conducting business, it may need to register with one or more offices within a particular state. Conducting business could mean a variety of things—including solicitation, having property or employees in the state, or selling goods or services in the state. The organization will also need to renew its status annually, which might include a simple postcard filing, a tax return filing, or filing an online form describing the organization’s activities and financial information.

Some organizations may be exempt from filing with a particular state. Although the exceptions vary from state to state, exemptions often apply to religious organizations and organizations that have raised less than certain amounts in the state.

As part of the requirements to register to solicit donations, states such as North Carolina require specific disclosures on their solicitations, written acknowledgments, receipts, and advertisements. Most state disclosures let the donor know where to find financial and registration information about the organization. Note that many states also regulate fundraising professionals (professional solicitors); the rules vary by state.

It is important, once an organization registers with the state, that it maintain its annual compliance. Many states are issuing severe penalties for noncompliance. And these states are hesitant to provide relief from penalties, even to small organizations (and are sometimes prohibited from doing so by law).

4.   Sales and use tax

Tax-exempt organizations must comply with each state’s sales and use tax rules much as for-profit businesses do. The analysis to determine whether an organization has sufficient nexus to be required to collect and pay over sales taxes is the same for a not-for-profit organization as it is for a commercial business entity. In general, not-for-profit organizations collect and remit sales tax for taxable sales. For example, if an organization sells T-shirts with its logo on it, this is usually a taxable sale, and sales tax must be collected and remitted to the state where the sale takes place.

The good news is that some states provide sales tax exemptions to not-for-profits for purchases, which is a valuable tax benefit when organizations purchase supplies or other items or services. This often overlooked benefit could save qualifying organizations 5% to 9% on purchases.

5.   Unrelated business taxable income (UBTI)

According to the IRS, more than 45,000 Forms 990-T, Exempt Organization Business Income Tax Return, were filed for the 2011 tax year (IRS, Statistics of Income Division, Tax Exempt Organizations, Unrelated Business Income (October 2014)). Many not-for-profit organizations have income from activities unrelated to their exempt purpose (UBTI) or are considering engaging in those activities for additional revenue. Having income from business unrelated to an organization’s exempt purpose comes with additional state income tax compliance issues. In fact, most states conform to the federal income tax definition of UBTI and impose corporate income tax or state unrelated business income tax on state-sourced UBTI.

It is important for a not-for-profit to know whether it needs to file in a particular state. If the organization is not otherwise doing business in the state by soliciting contributions, then it should analyze whether it has income/franchise tax nexus in the state from specifically generating UBTI. If an organization is already registered with the state to solicit contributions, then it would need to apply the appropriate apportionment of UBTI to that particular state, if any, to determine whether it must file a return in that state. However, not-for-profits often have unrelated business losses, so it may be prudent to file in a particular state to preserve a loss that may be carried forward against future income. Note that even when an organization does not have UBTI, it may need to apply for exemption from certain state income and franchise taxes (e.g., North Carolina and California).

It is noteworthy to mention the complex matter of alternative investments (such as limited partnerships, real estate funds, and private-equity funds), which not-for-profits frequently use hoping for higher returns. (For a discussion of this issue, see Evans and Hall, “Are Alternative Investments Worth Their SALT for Tax-Exempt Organizations?” 46 The Tax Adviser 416 (June 2015).)

The bottom line

States are increasingly looking for more revenue and to protect their residents from fraudulent organizations by stepping up their regulation of not-for-profits. This increased attention gives not-for-profits an opportunity to further their mission through transparency while maintaining balance to provide only what is required of them. Preventive action is crucial when reviewing multistate activities and related compliance requirements. Not-for-profit organizations are well-advised to review their activities with their CPA and legal counsel to determine the requirements they must meet in each stat

 

State and Local Sales Tax Data for 2015

How does your state compare to its neighbors?
Washington, DC (Apr 8, 2015)—This morning, the nonpartisan Tax Foundation released an updated report of sales taxes throughout the states in 2015. Using a population-weighted average of local sales taxes, the report details the combined state and local sales tax rates for each state and explains how sales taxes fit into a state’s overall tax structure.
The key findings include:
• 45 states collect statewide sales taxes.
• 38 states collect local sales taxes.
• The five states with the highest average combined state-local sales tax rates are Tennessee (9.45 percent), Arkansas (9.26 percent), Alabama (8.91 percent), Louisiana (8.91 percent), and Washington (8.89 percent).
• Sales tax rates differ by state, but sales tax bases also impact how much revenue is collected from a tax and how the tax affects the economy.
• Differences in sales tax rates cause consumers to shop across borders or buy products online.
“Sales taxes are some of the most easily understood taxes because every time a consumer makes a purchase, they can see the rate on the receipt,” says Tax Foundation Economist Scott Drenkard.
Our study addresses the fact that 38 states allow local governments to levy sales taxes within their jurisdiction. These local rates, when combined with the statewide rates, can result in substantially larger tax bites.
“Of course, sales taxes are just one part of an overall tax structure and should be considered in context,” adds Drenkard. “For example, Washington State has high sales taxes but no income tax; Oregon has no sales tax but high income taxes. While many factors influence business location and investment decisions, sales taxes are something within policymakers’ control that can have immediate impacts.”
Full report: http://taxfoundation.org/article/state-and-local-sales-tax-rates-2015

U.S. Tax Court Finds Refundable State Credits Result in Taxable Income

The United States Tax Court recently determined that certain refundable tax credits issued by New York in connection with economic development activities (EZ Credits) constituted taxable income to the recipients for federal tax purposes. Maines v. Comm’r, 144 T.C. No. 8 (Mar. 11, 2015). In reaching this determination, the Court noted that the characterization of certain of the EZ Credits as refundable taxes for New York purposes “is not necessarily controlling for federal tax purposes;” instead, the Court looked at the substance of the EZ Credits and determined that the credits were not actually a refund of previously paid state taxes, and, instead, the credits were a taxable accession to wealth since they were “just transfers from New York to the taxpayer—subsidies essentially.” The Court also considered one other refundable tax credit (the QEZE Credit), which was a credit against income tax liability for the amount of real property taxes paid, and determined that, while the amount of QEZE Credits refunded did not constitute a “taxable accession to wealth” as did the EZ Credits, the application of the tax benefit rule mandated that the refundable portion was subject to federal taxable income.

The taxpayers received the EZ Credits from New York for engaging in specific economic development activities in the state through their pass-through business entities. As the Court noted, New York labels the EZ Credits “credits” and treats them as refunds for “overpayments” of state income tax; the taxpayers in Maines received refunds of their state income tax based on their claim for the EZ Credits. Despite New York’s characterization of the EZ Credits, the Commissioner asserted that they were nothing more than cash subsidies, and thus should be treated as taxable income to the taxpayers. On the other hand, the taxpayers argued that New York’s label of the EZ Credits as overpayments was binding for purposes of federal law. The Court, noting President Lincoln’s famous quip that “if New York called a tail a leg, we’d have to conclude that a dog has five legs in New York as a matter of federal law. . . . Calling the tail a leg would not make it a leg,” agreed with the Commissioner, observing that federal law looks to the substance of legal interests created by state law, not to the labels the state affixes to those interests.

As for the QEZE Credit, the Tax Court agreed that it did not result in a taxable accession to wealth since it was really a refund of real property taxes that the taxpayer had paid to the state. However, the Court still determined that the refunded amounts would be taxable due to the tax benefit rule to the extent that a deduction had been claimed for the real property taxes paid. Under the tax benefit rule, to the extent a taxpayer obtains a refund of payments for which it received a tax benefit (such as a deduction), such refund should be taxable.

The Maines decision is one of the first Tax Court decisions to address the taxability of refundable state tax credits. After the issuance of this decision, taxpayers should analyze the effect that a refundable state tax credit will have on their federal taxable income. In making such an analysis, a taxpayer must pay careful attention to how the credit operates and not to the labels that a state uses. In addition, in determining the benefit of any potential state tax credit, taxpayers should consider the result of this decision and determine whether they lose some of the anticipated benefit they were expecting.

Tax News Flash: CA Competes Tax Credit

The California Competes Tax Credit is an income or franchise tax credit available to businesses that come to California or stay and grow in California.

Applications for the California Competes Tax Credit will be accepted at calcompetes.ca.gov from March 9, 2015, until April 6, 2015.

Go to business.ca.gov for more information on the California Competes Tax Credit.

Colorado Department of Revenue Update System Enhancements Implemented for 2014 Return Processing

The Colorado Department of Revenue (CDOR) has made the following system enhancements for the 2014 tax return processing season, as a result of discussion with COCPA members who participate on the COCPA/CDOR Joint Task Force.

New Reduced Refund/Carry-Forward Letter – This new letter will be sent when refunds or carry-forwards claimed on a return are reduced because of a penalty assessment for under payment of estimated tax during the year. The letter will show the penalty amount and the resulting net refund or carry-forward amount.

Enhanced Deceased Spouse Credit Transfer – This enhancement automates the available credit transfer in deceased spouse situations when the surviving spouse was not listed as the primary tax filer the prior year. The system will automatically transfer claimed credits for which it finds a match between the two accounts if the deceased check box is selected on the return.

New POA Correspondence Functionality – The system will automatically send the following letters to the POA on-file for the periods covered by the POA. This will be the new default for the system, but the POA or taxpayer can opt-out of this functionality by calling the CDOR call center (NOD, NOFD, Return Adjustment, Inquiry, Inquiry Resolution, Protest Resolution).

Enhanced Estimated Payments Letter – The Estimated Payments Inquiry Letter will show the date and amount of estimated payments on file with the Department. This letter generates when the taxpayer is claiming more estimated payments than are on the account.

Remember, as a Colorado Society of CPAs member, you can request assistance with particularly difficult client issues involving the CDOR by emailing the following information to COCPA CEO Mary E. Medley. Medley will forward your email and attachment(s) to the COCPA’s contact in the Department for assistance.
Taxpayer Name(s)

Colorado Account Number(s) or last four digits of the SSN(s)

Brief summary of the issue(s)

Whether you have a Power of Attorney on file – If yes, the CDOR will contact you to resolve the issue. If no, the CDOR will contact you to let you know a representative will contact your client directly.

Attached recent notice in pdf format, redacted, if you wish, to preserve client(s) confidentiality