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Alabama Tax Tribunal Rules That Freight Charges Not Subject to Sales TaxBy Jessica Eisenmenger and Leah Robinson

The Alabama Tax Tribunal ruled that freight charges paid by the seller but passed through on an invoice to the customer are not subject to sales tax. Alabama law exempts shipping and freight charges “paid by the purchaser” from sales tax. Chief Tax Tribunal Judge Bill Thompson ruled that such charges qualify for the exemption because the purchaser ultimately bears the economic burden of the charges. Mike Kilgo & Associates, Inc. v. Dep’t of Revenue, No. S. 14-1060 (Ala. Tax Tribunal Jan. 13, 2016).

Not So Sweet Home Alabama: Tax Injunction Act Bars Federal Court Challenge of Alabama State Income TaxBy Stephanie Do and Carley Roberts

The U.S. Court of Appeals for the Eleventh Circuit affirmed dismissal of a taxpayer’s complaint, arising from the Alabama Department of Revenue’s assessment and collection of state income tax, for lack of subject matter jurisdiction under the Tax Injunction Act (TIA). The court held that the TIA prohibited granting the taxpayer’s request for injunctive relief, declaratory relief and monetary awards for damages because the requested relief enjoined, suspended or restrained Alabama’s ability to assess its taxes. The court further explained that Alabama law provided “plain, speedy, and efficient” remedies for tax assessment challenges available to the taxpayer. Kelly v. Ala. Dep’t of Revenue, No. 15-12124 (11th Cir. 2016).

February 2016SUTHERL AND

SALT SHAKER®

Shaking things up in state and local tax.

In This Issue

Current Developments 1

SALT Pet of the Month 2

Recently Seen and Heard 7

Come See Us 7

Please visit www.stateandlocaltax.com to subscribe to receive the

latest content!

Arizona Un-Commonly Understands That Database Fees Are Sales of Tangible Personal PropertyBy Nicole Boutros and Jeff Friedman

The Director of the Arizona Department of Revenue affirmed an Administrative Law Judge determination that a taxpayer must pay the Transaction Privilege Tax on sales of access to the taxpayer’s subscription-based online research service. The Director reasoned that these sales were taxable as rentals of tangible personal property —and not non-taxable services—because the taxpayer’s customers had sufficient control and use of the taxpayer’s software and could manipulate the software content for their specific needs. The Director rejected the taxpayer’s assertion that the common understanding of the taxpayer’s trade or business was the provision of database access and content, or that the transaction’s dominant purpose was database browsing and searching. Ariz. Dep’t of Revenue Director’s Decision, No. 201400197-S (Oct. 27, 2015).

Sourcing the Ticker Tape: California Ruling Addresses Sourcing of Financial Information Provider’s ServicesBy Hanish Patel and Marc Simonetti

In a Chief Counsel Ruling, the California Franchise Tax Board (FTB) ruled that, for purposes of determining its sale factor, a financial information provider should source the sales of its information services based on where the taxpayer’s customer receives the benefit of the service, and not where the ultimate customer (the taxpayer’s customer’s customer) receives the benefit. The taxpayer provides financial data—real-time stock quotes, company screenings and other market research data—to business entity customers that, in turn, use the data to manage portfolios and offer products to their own customers. Additionally, the FTB ruled that the taxpayer could identify and measure the location of the benefit received based on the relative computing power usages of its customers because the computing power correlated to the fees received for the service. Cal. FTB Chief Counsel Ruling No. 2015-02 (released Feb. 19, 2016).

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Meet Cush, the handsome five-year-old dachshund-corgi mix belonging to Sutherland SALT Partner, Carley Roberts, and her husband Jeremy.

Carley and Jeremy never thought they’d add a seventh dog to their extensive furry family. However, after many months of random visits from this sweet boy, who happily wandered over to their 10-acre property from a neighbor’s yard multiple times a week, they decided he should stay.

The Roberts spoke to their neighbor and learned that Cush was a child of divorce and actually belonged to the neighbor’s daughter who lived elsewhere and could no longer keep him. To her credit, the neighbor admitted to not being much of a dog person and agreed that Cush would be much happier with the Roberts.

Cush now enjoys the good life and loves to lounge in the sun on the deck, accompany his parents to Home Depot and Green Acres, and play fetch. He has several favorite toys and is the only one in the pack who will stand on his hind legs and lower his head deep into the toy basket to choose a toy and initiate some play time. Cush loves his new family and is so proud to be February’s Pet of the Month!

SALT PET OF THE MONTH“Cush”

SALT Pet of the Month: It’s Your Turn!!In response to many requests, the Sutherland SALT practice invites you to submit your pet (or pets) as candidates for SALT Pet of the Month. Please send us a short description of why your pet is worthy of such an honor, along with a picture or two. Submissions should be directed to Stephanie Fulps at stephanie.fulps@sutherland.com.

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Holding Company Gets Factored Out of Parent’s Colorado Combined Return on the Reg.By Todd Betor and Eric Coffill

On January 20, a Denver trial court ruled that Agilent Technologies World Trade, Inc. (World Trade), a holding company with no property or payroll of its own, cannot be included in its parent’s combined corporate income tax return. The court found that World Trade did not meet the definition of “includible C corporation” for combined return purposes because the Department of Revenue’s own regulation provides that only a company with 20% or more of its property or payroll factors assigned to locations in the United States can be combined and, here, World Trade had zero property or payroll of its own. The court also rejected the Department’s claims that the “economic substance doctrine” and/or an IRC section 482-type “arm’s length pricing” statute provide a vehicle for including World Trade in its parent’s combined group. As a result of the trial court’s decision, the Department issued a notice cautioning taxpayers not to rely on the regulation at issue – 1 CCR 201-2, Reg. 39-22-303.12(c) – until further notice, except as it applies to Foreign Sales Corporations. Agilent Technologies, Inc. v. Department of Revenue, District Court, City and County of Denver, Case No. 2014CV393, Order filed Jan. 20, 2016.

For Your Health: Health-Related Information Service Not Subject to Georgia Sales and Use TaxBy Charles Capouet and Charlie Kearns

The Georgia Department of Revenue released a letter ruling stating that a taxpayer’s health-related information service was not subject to sales and use tax. The service includes a web portal to provide health information and track the user’s personal results and the in-person performance of an annual biometric health assessment. The taxpayer’s service was not taxable because Georgia does not expressly designate the service as taxable. Ga. Letter Ruling SUT-2015-03, Ga. Dep’t of Revenue (issued Apr. 16, 2015, released Feb. 2016).

A Direct Shot: Georgia Department of Revenue Proposes Regulation Eliminating Refund Interest for Direct Pay Permit HoldersBy Jonathan Feldman and Hanish Patel

The Georgia Department of Revenue issued a proposed regulation amending the use of direct pay permits for state and local sales and use taxes. The proposed regulation would cause all current permits to expire on December 31, 2016, and require all current holders to reapply and agree to certain conditions, most notably the waiver of interest on refunds of taxes remitted on purchases made with the permit. In December 2015, the Georgia Association of Manufacturers

and the Council on State Taxation commented on the first proposed amended version of the regulation, advocating against the required waiver of refund interest and other procedural items. In this second version, the Department has revised several of the procedural items, but the interest waiver remains. The public comment period is open until March 3, 2016. Georgia Notice SUT 2016-001.

So Misunderstood? Illinois DOR Adopts Special Sales Factor Rules for Hedging and Foreign Currency TransactionsBy Elizabeth Cha and Charlie Kearns

Effective for tax years beginning on or after January 5, 2016, the Illinois Department of Revenue adopted amendments to 86 Ill. Adm. Code Sec. 100.3380 that establish special rules for the inclusion in the Illinois sales factor of certain (1) income, gains and losses from hedging transactions; and (2) gains and losses from foreign currency exchanges. First, the Department’s amended regulation generally provides that taxpayers must exclude from the numerator and denominator of the Illinois sales factor any income, gain or loss from a transaction identified as a “hedge” for federal income tax purposes, notwithstanding a taxpayer’s facts and circumstances. Borrowing from federal income tax concepts, the amended regulation

also establishes several exceptions to this general rule of exclusion for certain “identified” or “integrated” hedging transactions. Second, the Department establishes special rules in the amended regulation with respect to foreign currency gains and losses, i.e., Internal Revenue Code § 988 transactions. Under the new rules, a taxpayer may include a foreign currency gain or loss in its Illinois sales factor only if the income to which the foreign currency gain or loss relates is also included in the sales factor. However, the amended regulation concludes that taxpayers shall exclude from their Illinois sales factors any foreign currency gains and losses “with respect to expense.”

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Kentucky Must Ride on Noah’s Ark: Denial of Tax Incentives to Religious-Based Theme Park ReversedBy Stephanie Do and Todd Lard

The U.S. District Court for the Eastern District of Kentucky preliminarily enjoined Kentucky from denying tax incentives to a religious-based theme park. The court held that excluding the company from the state’s tax incentives program on the basis of the company’s religious beliefs, message and conduct violated the Establishment and Free Exercise Clauses of the First Amendment when the company met all of the neutral criteria for the program. The court further found that Kentucky’s constitutional provisions cannot be used to transform such First Amendment violations into permissible actions. Ark Encounter, LLC v. Don Parkinson, No. 15-13-GFVT (E.D. Ky. 2016).

The Complete Package: Chemicals Used to Manufacture Paperboard Products Not Subject to Louisiana Sales TaxBy Mike Kerman and Andrew Appleby

The Louisiana Court of Appeals held that a paperboard products manufacturer was entitled to refunds of sales tax it paid on purchases of chemicals it used in the manufacturing process under the “further processing” exclusion. The chemicals met the exclusion’s three-part test because they: (1) were identifiable components of the end paperboard product; (2) benefitted the paperboard by increasing its mass, conductivity, size and strength; and (3) were purchased with the purpose of being included in the paperboard. Graphic Packaging Int’l, Inc. v. Lewis, No. 50,371-CA (La. Ct. App. Feb. 3, 2016).

Keep On Truckin’ ... Around Massachusetts: MA High Court Declares Unapportioned Use Tax on Motor Vehicles ConstitutionalBy Stephen Burroughs and Tim Gustafson

The Massachusetts Supreme Judicial Court denied a freight company’s Commerce Clause challenge to the application of an unapportioned use tax on its vehicles purchased out-of-state but used in Massachusetts. The company used its trucks to deliver freight in multiple states, but the court upheld taxation of the vehicles’ full value, in part, because a statutory “catch-all” exemption disallowed any application of the use tax that violated the U.S. Supreme Court’s decision in Complete Auto. The court reasoned that the “catch-all” exemption prevented hypothetical scenarios from invaliding a use tax assessment under the internal consistency test because transactions that result in actual double taxation are exempt from Massachusetts use tax. The court also concluded that the unapportioned use tax was externally consistent because it was not out of proportion to the company’s use and storage of its vehicles in Massachusetts, and the company was not subject to imposition of multiple sales or use taxes in other jurisdictions. Finally, the court determined that the vehicle use tax did not impermissibly burden interstate commerce simply because Massachusetts chooses to tax an activity that most states exempt—the in-state use or storage of vehicles engaged in interstate commerce. Regency Transp., Inc. v. Comm’r of Revenue, 473 Mass. 459, 42 N.E.2d 1133 (Ma. 2016).

Victory for Transformers and Taxpayers: ALJ Holds “Step-up Transformers” Qualify for NY Sales Tax Production ExemptionBy Hanish Patel and Open Weaver Banks

A New York Division of Tax Appeals Administrative Law Judge (ALJ) held that an electricity producer’s purchases, installations and repairs of “step-up transformers” were not subject to sales and use tax because the transformers were “used directly” in the production of electricity. Step-up transformers are used to “step up” the voltage of electricity so it may enter the transmission system, which, in turn, distributes the electricity throughout the state. The ALJ rejected the state’s argument that the step-up transformers were used in the delivery of energy, and not in the production of energy, finding instead that the step-up transformers were necessary in processing the electricity into a “saleable form” with the required voltage level. In the Matter of Entergy Nuclear Operations, Inc., DTA No. 826017 (N.Y. Div. of Tax App. Jan 28, 2016).

Roadkill: New York Court Finds Flat Vehicle Registration Fees UnconstitutionalBy Mike Penza and Madison Barnett

The New York Supreme Court, Albany County, held that New York’s unapportioned vehicle registration fees violated the Commerce Clause. The court found that the flat fees—imposed on all carriers operating motor vehicles in New York—were indistinguishable from those struck down by the U.S. Supreme Court in American Trucking Ass’ns., Inc. v. Scheiner, 483 U.S. 266 (1987). The court rejected the state’s arguments that the fees (i) were too small ($15 and $4) to be of constitutional significance, and (ii) could not be apportioned without creating an “enormous and costly administrative burden.” Owner Operator Indep. Drivers Ass’n v. New York State Dep’t of Taxation and Fin., No. 005551/2013 (N.Y. Sup. Ct. Albany Cty. Jan. 22, 2016).

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Open for Nonbusiness: Oregon Tax Court Holds Insurance Company’s Gain Was Nonbusiness IncomeBy Hanish Patel and Open Weaver Banks

The Magistrate Division of the Oregon Tax Court held that an insurance company’s gain from the sale of a subsidiary and income from a holding company both constituted nonbusiness income. The court found that the acquisition and sale of a 40% owned subsidiary that operated as a third-party administrator of workers’ compensation claims was not “inextricably mixed” with the company’s title insurance business conducted in Oregon, as required under the state’s transactional test for business income. Similarly, the court also held that income arising from the company’s interest in a holding company that owned restaurants and food manufacturers also constituted nonbusiness income because such interest was not integrated with the company’s insurance business. Fid. Nat’l Fin. v Dep’t of Revenue, No. TC-MD 140440D, 2016 WL 198149 (Or. Tax Ct. Jan 15, 2016).

Look But Don’t Touch: Tennessee DOR Ruling Analyzes Web-Based Software and ServiceBy Elizabeth Cha and Todd Lard

Applying the “true object” test to the taxpayer’s web-based services, the Tennessee Department of Revenue ruled that charges for granting access to the taxpayer’s website for purposes of obtaining information would not be subject to sales tax. While the access to web-based services is tax-exempt as a sale of services, a subscription to the taxpayer’s web-based technology solution system that allows a customer to manage its own information is taxable as a sale of remotely accessed software. However, the taxpayer’s purchase of the technology solution system from a third party qualifies for a sale for resale exemption if it provides the third party with a properly completed resale certificate. Tennessee Letter Ruling No. 16-01, 01/26/2016.

Technical Support: Tennessee Publishes Guidance on Sales Tax Treatment of Computer Software Maintenance ContractsBy Chris Mehrmann and Charlie Kearns

The Tennessee Department of Revenue has issued guidance explaining that the retail sale of, use of, or subscription to a computer software maintenance contract is subject to sales and use tax when: (1) the maintenance contract is sold as part of a taxable sale of computer software; (2) the underlying software is installed on a computer located in Tennessee; or (3) the location of the underlying software is unknown by the seller, but the purchaser’s residential or primary business address is located in Tennessee. The Department noted that additional tax is not imposed on any repairs or maintenance performed as part of the computer software maintenance contract. However, if any repairs or maintenance are not covered by the contract, then those transactions are subject to sales and use tax. Finally, the Department stated that separate sales of support services (e.g., help desk and customer service support) are not subject to sales and use tax, provided that: (1) the purchaser is not required to purchase the support services in connection with the computer software maintenance contract; and (2) the support services do not include the installation, transfer, repair or maintenance of the computer software. Tenn. Dep’t of Revenue, Notice No. 15-25 (Dec. 1, 2015).

Texas Court of Appeals Chops Machete’s Hope for Texas Film Production IncentivesBy Evan Hamme and Marc Simonetti

The Texas Court of Appeals held that sovereign immunity bars Machete’s Chop Shop’s declaratory judgment action because Machete failed to plead that the Texas Film Commission acted ultra vires when it denied Machete’s grant application for the 2010 film, Machete. Machete alleged that the Texas Film Commission lacked authority to deny its grant application because the Commission initially approved the application after reviewing a copy of the script, and the script never changed prior to the film’s release. Although a Texas statute required the Commission to review a final script to determine if a film’s content contained “substantial changes” from the initial script, the Texas Court of Appeals interpreted the statute to permit the Commission to deny an application at any time—even if the script had not changed since initial approval—if the Commission determined the film contained inappropriate content or content that portrays Texas or Texans in a negative fashion. Machete’s Chop Shop, Inc. v. Tex. Film Comm’n, et al., No. 03-14-00098-CV (Tex. Ct. App. Jan. 29, 2016).

Virginia Trial Court’s Addback Decision Surely “Subject to” Future AppealBy Zack Atkins and Eric Coffill

A Virginia trial court held that royalties paid to related members that are reported to, but not taxed by, other states do not qualify for the exception to the state’s corporate income tax addback statute. In granting summary judgment in favor of the Virginia Department of Taxation, the court said that intangible expenses paid to related members must be added back to a taxpayer’s federal taxable income unless the payments to the related member are “subject to a tax based on or measured by net income or capital.” Construing this exception narrowly against the taxpayer, the court equated the statute’s “subject to” language to actual taxation. Kohl’s Dep’t Stores, Inc. v. Va. Dep’t of Taxation, No. CL12-1774 (Va. 13th Jud. Cir. Ct. Feb. 3, 2016).

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Pump the Brakes: West Virginia OTA Finds Nexus Exists for Garage Equipment SellerBy Ted Friedman and Carley Roberts

The West Virginia Office of Tax Appeals (OTA) ruled that an out-of-state corporation, with no physical location or employees in West Virginia, owed sales and use tax on sales of garage equipment in the state. The OTA determined that the corporation had nexus with West Virginia based on its purposeful utilization of persons in the state who provided leads, sales information, equipment installation, training and follow-up, coupled with the activities of an independent contractor who functioned as its sales representative in the state, because such activities established and maintained a market for the corporation in West Virginia. West Virginia Administrative Decision No. 14-081 CU (W. Va. Office of Tax Appeals Oct. 14, 2015) (released Jan. 27, 2016).

West Virginia Office of Tax Appeals Rules That the Presence of Independent Contractors Establishes Sales Tax NexusBy Jessica Eisenmenger and Amy Nogid

The West Virginia Office of Tax Appeals (OTA) upheld a sales tax assessment against an out-of-state company that provided taxable outside maintenance services such as snow removal and window cleaning in the state via independent contractors. The Administrative Law Judge reasoned that since “nothing happens” unless the independent contractors perform the services in West Virginia, and the activities conducted by the contractors “create and maintain in totality the [company’s] market,” substantial nexus existed for the company in West Virginia. West Virginia Administrative Decision No. 12-432 U (W. Va. Office of Tax Appeals Jan. 30, 2015) (released Jan. 27, 2016).

WV Tax Department’s Application of Tax Credit for Sales Tax Paid to Other States Not Supported by Statute, Violated Internal ConsistencyBy Olga Goldberg and Leah Robinson

The West Virginia Office of Tax Appeals (OTA) ruled in favor of a rail transportation company subject to use tax on fuel used in West Virginia because the West Virginia State Tax Department (Department) incorrectly applied the credit against use tax for sales tax paid to “another state.” First, the OTA held that there was no statutory basis for the Department’s use of two different formulas to approximate fuel used in West Virginia: one formula to compute use tax, which resulted in a higher use tax liability, and a different formula to compute the credit, which resulted in a lower available credit. Second, the OTA concluded that the credit must include sales tax paid to out-of-state localities to pass the internal consistency test of the federal dormant Commerce Clause. The OTA agreed with the taxpayer that denial of the credit would result in multiple taxation of identically situated taxpayers in a manner that was not fairly apportioned and that unconstitutionally discriminated against interstate commerce. West Virginia Office of Tax Appeals, Redacted Decision, Docket Nos. 12-477 RMFE & 13-273M (Jan. 23, 2015).

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RECENTLY SEEN AND HEARDFebruary 3-5, 2016National Multistate Tax Symposium Orlando, FLJeff Friedman on Legislative, Administrative, and Judicial Developments in State TaxationMarc Simonetti on Indirect/Sales/Use and Gross Receipts Taxation – A Practical Approach for Managing Risk and Controversy Both Pre-and Post-Audit Assessment

February 17, 2016Sutherland State Tax Ladies’ LunchNew York, NYLeah Robinson hosts

February 23-25, 2016COST Sales Tax ConferenceSan Diego, CAEric Tresh on Top 10 Transactional Tax Cases of 2016

February 29-March 1, 2016ABA/IPT Advanced Income Tax SeminarNew Orleans, LALeah Robinson on How New Unitary States are Administering and Interpreting the Process Eric Coffill on Section 18 and the Constitutional Parameters of Alternate Apportionment Todd Lard on Federal and International Issues Affecting SALT, Both for Inbound and Outbound TaxpayersMaria Todorova on Sale for Resale Exemption (Scope, Documentation, etc.)

March 2, 2016TEI Rochester Rochester, NY Amy Nogid on State and International Tax Overlaps

March 3, 2016 Sutherland State Tax Ladies’ LunchParsippany, NJLeah Robinson hosts

March 13-16, 2016TEI Mid-year ConferenceWashington, DCEric Tresh and Robb Chase on Let’s Be Rational Here: Tax Considerations in Legal Entity RationalizationJeff Friedman on Rewriting History: Retroactivity in State and Local Taxes

March 16, 2016New York Insurance Association Tax Webinar New York, NYAndrew Appleby on New York Tax Reform – What Insurance Companies Need to Know

March 23, 2016 Sutherland State Tax Ladies’ LunchNew York, NYLeah Robinson hosts

April 19-22, 2016 COST Income Tax Conference Asheville, NCSutherland SALT presents

April 27, 2016 TEI Philadelphia Philadelphia, PAEric Coffill on Current State Tax Developments in California and Other Western States

May 2, 2016TEI Houston ChapterHouston, TXTim Gustafson on Key Income Tax Cases to Watch

May 3, 2016TEI Tri-Chapter MeetingRochester, NYAndrew Appleby on Practical Tax Audit Management

May 5-7, 2016ABA May MeetingWashington, DCLeah Robinson moderates the Tax Practitioners’ Roundtable

May 16-18, 2016Telestrategies Communications Taxactions Conference 2016 Phoenix, AZEric Tresh on A Look Ahead – Forecasting Trends in State Tax Litigation for Communications Companies

COME SEE US

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The Sutherland SALT Team

Michele Borens202.383.0936michele.borens@sutherland.com

Jonathan A. Feldman404.853.8189jonathan.feldman@sutherland.com

Jeffrey A. Friedman202.383.0718jeff.friedman@sutherland.com

Todd A. Lard202.383.0909todd.lard@sutherland.com

Carley A. Roberts916.241.0502carley.roberts@sutherland.com

Leah Robinson212.389.5043leah.robinson@sutherland.com

Marc A. Simonetti212.389.5015marc.simonetti@sutherland.com

Maria M. Todorova404.853.8214maria.todorova@sutherland.com

Eric S. Tresh404.853.8579eric.tresh@sutherland.com

Scott Wright404.853.8374scott.wright@sutherland.com

Eric J. Coffill916.241.0508eric.coffill@sutherland.com

Douglas Mo916.241.0505douglas.mo@sutherland.com

Andrew D. Appleby212.389.5042andrew.appleby@sutherland.com

Open Weaver Banks212.389.5081open.banks@sutherland.com

Madison J. Barnett404.853.8191madison.barnett@sutherland.com

Timothy A. Gustafson916.241.0507tim.gustafson@sutherland.com

Charles C. Kearns202.383.0864charlie.kearns@sutherland.com

Amy F. Nogid212.389.5086amy.nogid@sutherland.com

Zachary T. Atkins404.853.8312zachary.atkins@sutherland.com

Todd G. Betor202.383.0855todd.betor@sutherland.com

Nicole D. Boutros212.389.5058nicole.boutros@sutherland.com

Stephen A. Burroughs404.853.8046stephen.burroughs@sutherland.com

Charles C. Capouet202.383.0865charles.capouet@sutherland.com

Elizabeth S. Cha202.383.0533liz.cha@sutherland.com

Stephanie T. Do202.383.0839stephanie.do@sutherland.com

Jessica A. Eisenmenger202.383.0957jessica.eisenmenger@sutherland.com

Ted W. Friedman202.383.0829ted.friedman@sutherland.com

Evan M. Hamme212.389.5024evan.hamme@sutherland.com

Michael J. Kerman212.389.5085michael.j.kerman@sutherland.com

Nicholas J. Kump916.241.0516nick.kump@sutherland.com

Christopher M. Mehrmann202.383.0911chris.mehrmann@sutherland.com

Robert P. Merten III916.241.0512robert.merten@sutherland.com

Hanish S. Patel 404.853.8066hanish.patel@sutherland.com

Michael P. Penza212.389.5048michael.penza@sutherland.com

Samantha K. Trencs202.383.0534sam.trencs@sutherland.com