Reprinted with permission from the 3/28/19 edition of the New Jersey Law Journal© 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.


In light of ever-present budget shortfalls in most states’ coffers, a go-to revenue generating technique affecting all business owners is a “nexus” audit. The U.S. Supreme Court decision last summer in South Dakota v. Wayfair, 138 S.Ct. 2080 (2018), overturning the longstanding precedent in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), has lengthened the states’ reach to audit an out-of-state business without regard to whether the business ever physically crossed the state’s borders.

In the “post-Wayfair” nexus landscape, many small and mid-size businesses are learning for the first time about their income and sales tax obligations from business activities (nexus) inquiries sent by taxing authorities invigorated by the changes in the law. The business can be blindsided by the substantial assessments over a period of six to eight years, including interest and penalties and potential personal liabilities for the owners.

This article analyzes what it means for a business to have physical and/or economic nexus through, respectively, its activities and receipts generated in another state. In addition, we discuss the importance of a prophylactic nexus study and tax savings that can be achieved with a proper allocation analysis.

Pre-’Wayfair’ Definition of Physical Nexus

Since the 1992 Supreme Court ruling in Quill, an out-of-state (also known as “foreign”) business with significant physical presence in another state is deemed to have nexus with that state. The Quill case specifically addressed a state’s ability to impose sales tax, but stands broadly for the “physical presence” nexus test in the income tax arena as well.

A business with physical contacts in a state is considered to avail itself of that state’s benefits and privileges (this assumption is automatic for domestic businesses). In turn, the state is considered to have jurisdiction to impose taxes on the nonresident business.

Physical contacts, beyond outright ownership or leasing of property, may include, among other things, in-state deliveries (other than by common carrier) and banking activities in the state. For sales tax purposes, such contacts also include solicitation of sales, whether by employees, independent contractors or other agents.

State income tax is generally imposed on an out-of-state business on income sourced within the state. Federal protection is provided under 15 USC §381 (commonly known as “P.L. 86-272”), for businesses whose only activity in the state is solicitation. However, it does not protect a business from the obligation to collect sales and use tax. It also does not protect against non-income franchise tax. For this reason, states have enacted statutes that calculate tax based on gross receipts, apportioned capital, net worth and other non-income measures, such as the Washington Business and Occupancy Tax, Michigan Business Tax, Texas Margin Tax, and Ohio Commercial Activities Tax.

Over the past decade, states have pushed the boundary to assert nexus based on tenuous contacts in the state, such as licensing a trademark (Lanco v. Div. of Taxation, 188 N.J. 380 (S.Ct. 2006)), or storing website “cookies” on local computers (Mass. Regs. Code 830 CMR §64H.1.7(2). In addition, under “Amazon laws,” states created a rebuttable presumption of nexus when a business entered into referral agreements with residents. New York’s highest court upheld such a statute against constitutional challenge in Overstock.com v. N.Y.S. Dept. of Tax’n & Fin., 20 N.Y.3d 586 (Ct. of App. 2013), a ’g Amazon.com v. Dept. of Tax’n and Fin., 913 NYS2d 129 (App. Div. 2010).

States have also asserted claims of physical nexus when a business enrolls in the Fulfillment By Amazon (FBA) program. This is a logistics service offered by Amazon to e-commerce businesses. The FBA directs a business to send inventory to a warehouse in a particular state, and subsequently, unbeknownst to the seller, may redistribute it to a warehouse in another state. That second state will often claim that inventory stored there creates nexus. The quantity of inventory or length of time the inventory spends in the warehouse seemingly does not make a difference.

Since states continued to insist that nexus was created through tenuous physical contacts and tortured interpretations of case law under Quill, it was only a matter of time before the Supreme Court would be asked to bless “economic nexus” rules, which do not require any physical presence at all.

Economic Nexus under ‘Wayfair’

In at least the second half of the past quarter-century since Quill was decided, pressure has been mounting to overturn this precedent because of perceived unfairness to
brick-and-mortar businesses. States also began to feel the pinch from not being able to collect tax from the elusive and sometimes anonymous online marketplace. This culminated in several state campaigns to “Kill Quill.”

To provoke a constitutional challenge, South Dakota passed a sales tax law creating nexus if an out-of-state business generated over a certain dollar threshold of revenue ($100,000) from the state, or conducted a certain number of transactions (200) in the state. This new “economic nexus” law did not require physical presence in the state. South Dakota then proceeded to sue the largest out of-state vendors, including Wayfair and Overstock. Losing in the state courts that considered themselves duty-bound to follow Quill, South Dakota appealed to the U.S. Supreme Court and won.

Post-’Wayfair’ Legislation

New York passed a sales tax economic nexus statute decades before South Dakota did, but waited patiently for almost 30 years for constitutional approval to begin to enforce it. N.Y. Tax Law §1101(b)(8)(iv), and regulations under NYCRR 20 §526.10, require a vendor to remit sales tax if it conducts more than $300,000 of sales and more than 100 sales of tangible personal property in the state. Now, post-Wayfair, New York issued guidance in Notice N-19-1, in January 2019, that it will start enforcing this existing statute immediately.

New Jersey was the first state to pass an economic nexus statute after Wayfair was decided. The New Jersey thresholds exactly mimic the requirements of the South Dakota statute. In addition, in the case of remote sales, New Jersey has imposed a direct obligation for the marketplace “facilitator” to collect sales tax, as long as such middleman has access to the necessary information from the seller. We anticipate that New Jersey and other states will further develop audit programs that seek to aggressively enforce the new economic nexus laws.

Importantly, other middlemen, such as out-of-state wholesalers and distributors that do not sell goods to end users, generally do not need to register to collect sales tax, regardless of nexus to a state, because their sales are considered to be sales-for-resale. However, in light of the new laws implicating marketplace facilitators, under the more aggressive post-Wayfair audit programs, if such wholesalers and distributors cannot present valid resale exemption certificates to the taxing authorities, they may be held jointly liable for sales tax with the retail sellers.

Finally, note that the post-Wayfair legislation is intended to supplement and not replace the physical nexus test, which continues to apply to a business falling below the economic nexus thresholds. For such states, and for states that have not passed economic nexus legislation, inventory stored, employees located, orders taken, and affiliate contracts made in the state, along with many other physical contacts, continue to be relevant factors for determining nexus.

Income Allocation

An important aspect of the nexus analysis is to determine allocation of receipts in multiple states and whether income and/or sales tax returns need to be led in those states.

In the area of income or receipts-based tax reporting, states including New Jersey and New York utilize a single-factor sales receipts formula to allocate income of domestic and foreign businesses. This is a simplified method from previous statutes that also weighed property and payroll in a three-factor allocation formula. The calculation currently is a ratio of receipts derived from the state as numerator over the denominator of all receipts derived from all other jurisdictions. New Jersey used to “throw out” from the denominator receipts not subject to income tax in any jurisdiction, thus capturing this otherwise untaxed income, but in 2010 abolished this requirement to encourage businesses to come to New Jersey. N.J.S.A. §54:10A-6(B); N.J.A.C. §18:7-8.7(d).

A nexus analysis can ensure that income generated from states where the company may have no nexus is excluded from the total income allocated among states where the company does have nexus. This could be because the business does not have physical contacts with the state, falls below economic nexus thresholds and/or the state has not passed economic nexus legislation. If properly allocated, income (or other type of tax base) from states where the business does not have nexus can potentially completely escape tax in any state at the entity-level.

Conclusion

In light of potential pitfalls facing a multi-state business with regular ties to several states (direct or indirect, and now, under Wayfair, purely economic), as well as potential tax savings from proper income allocation, it is every Controller’s or Chief Financial Officer’s fiscal obligation to have a confidential (and, if conducted by attorneys, attorney-client privileged) state-by-state nexus study conducted of its business’ multi-state operations. If the business has exposure, it can apply for a voluntary disclosure program, or develop another compliance strategy to limit the look-back period, obtain a waiver of penalties and prevent personal liability to the owners that may not be dischargeable in bankruptcy.

Finally, income/receipts allocation for closely-held pass-through entities, such as S corporations and LLCs treated as partnerships, has tax implications for individual partners or shareholders. While outside the scope of this article, the individual tax consequences can be mitigated and even eliminated with proper residency planning.

In a recent unpublished opinion, the New Jersey Appellate Division summarized the factors a trial court must consider when awarding attorneys’ fees in Will contests.  In Matter of the Estate of Fornaro, 2019 WL 2172791, the decedent executed a Will in 2011 leaving the bulk of his estate to his son.  In an earlier 1999 Will, however, the decedent had divided his estate equally between his son and daughter.

The decedent died in 2012 and the daughter thereafter filed an action contesting the 2011 Will on the grounds of undue influence and lack of testamentary capacity. Based on the evidence, the trial court had “no difficulty concluding that [decedent] was a very strong-willed man and capable of exercising his own free will well into 2012.”  The trial court ultimately determined that the Will was not the product of undue influence and that the decedent had sufficient mental capacity to create the 2011 Will.

The trial court subsequently awarded counsel fees to both children pursuant to New Jersey Court Rule 4:42-9(a)(3), which authorizes payment from the estate of the legal fees incurred by both the winner and loser of a Will contest so long as “reasonable cause” for the challenge existed.  The Appellate Division agreed that there was reasonable cause for the challenge, but held that the trial court had not properly calculated the fee award.  It found that the trial court should have considered the factors in New Jersey Rule of Professional Conduct 1.5(a) to gauge the reasonableness of the fee awards, which include the following: 

 (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

In addition, it found that the trial court should have also considered the below factors articulated in In re Bloomer’s Estate, 37 N.J. Super, 85, 94 (App. Div. 1955):

(1) the amount of the estate and the amount thereof in dispute or jeopardy as to which professional services were made necessary; (2) the nature and extent of the jeopardy or risk involved or incurred; (3) the nature, extent and difficulty of the services rendered; (4) the experience and legal knowledge required, and the skill, diligence, ability and judgment shown; (5) the time necessarily spent by the attorney in the performance of his services; (6) the results obtained; (7) the benefits or advantages resulting to the estate, and their importance; (8) any special circumstances, including the standing of the attorney for integrity and skill; and (9) the overhead expense to which the attorney has been put.

The Appellate Division noted that “[b]ecause we cannot discern from the court’s opinion whether or how it applied the subject factors, we are constrained to reverse the . . . orders, and remand the issue of counsel fees and costs for further fact finding.”

In sum, the opinion highlights that “a court must expressly state its findings of fact and conclusions of law” regarding the relevant factors when awarding attorney’s fees in probate cases.

Many people familiar with litigation probably think of pretrial discovery in the context of traditional and often heated litigation—perhaps a contentious divorce, a complex contractual or real estate dispute or a contested personal injury or medical malpractice lawsuit.  While pretrial discovery in Florida is certainly very common in these types of cases, the Florida Probate Rules allow for discovery even in non-contested, routine estate administrations where there are no adverse parties or claims, i.e., matters where no one is suing anyone else.

Rule 5.080 the Florida Probate Rules provides as follows:

(a)     Adoption of Civil Rules. The following Florida Rules of Civil Procedure shall apply in all probate and guardianship proceedings:

(1)     Rule 1.280, general provisions governing discovery.

(2)     Rule 1.290, depositions before action or pending appeal.

(3)     Rule 1.300, persons before whom depositions may be taken.

(4)     Rule 1.310, depositions upon oral examination.

(5)     Rule 1.320, depositions upon written questions.

(6)     Rule 1.330, use of depositions in court proceedings.

(7)     Rule 1.340, interrogatories to parties.

(8)     Rule 1.350, production of documents and things and entry upon land for inspection and other purposes.

(9)     Rule 1.351, production of documents and things without deposition.

(10)   Rule 1.360, examination of persons.

(11)   Rule 1.370, requests for admission.

(12)   Rule 1.380, failure to make discovery; sanctions.

(13)   Rule 1.390, depositions of expert witnesses.

(14)   Rule 1.410, subpoena.

(15)   Rule 1.451, taking testimony.

All of the regular tools for discovery—interrogatories, requests for production of documents, depositions, requests for admissions and subpoenas—that are available in conventional and contested litigation is, pursuant to the above rule, also available in ordinary estate administration matters, as well as adversarial probate and guardianship cases.  A beneficiary of an estate, for example, who has not filed any type of adversary proceeding in probate but who wants more information with respect to transfers of property or money made by a decedent in the three years before he passed away is entitled to serve interrogatories and a request for production of documents on the personal representative of the estate and can even set the deposition of that personal representative if that beneficiary believes that a deposition is necessary.

The 2017 Tax Act added a new tax on US shareholders of controlled foreign corporations (“CFCs”), the tax on Global Intangible Low-Taxed Income (“GILTI”).  GILTI often includes active business income and thus has a widespread impact.

For US C corporations, the regular 21% tax is reduced by a 50% deduction, which lowers the tax rate on GILTI to 10.5%.  Corporations also can claim a foreign tax credit (“FTC”) for 80% of the foreign taxes paid by the CFC, which further reduces or eliminates the GILTI tax.  By contrast, US individuals (including shareholders of S corporations) received no similar tax breaks, and must pay tax at regular rates (maximum 37% rate).

The IRS recently released proposed regulations that open up a planning option for individuals to similarly reduce the tax rate on GILTI by making a Code §962 election.

Code §962 allows a US individual shareholder of a CFC to make an annual election to pay tax on its related Subpart F income at corporate rates.  This section has been a longstanding part of the Code, but was largely ignored until adoption of the 2017 Tax Act.  The 2017 Tax Act reduced corporate tax rates to be significantly below individual tax rates.  The 2017 Tax Act left unanswered whether this election can yield the same tax benefits as a C corporation gets for GILTI.

The IRS proposed regulations state that an individual making the Section 962 election is subject to the 21% corporate tax rate and can get the special 50% deduction for GILTI income, which lowers its tax on GILTI to 10.5%.  The IRS has not yet specifically confirmed that an individual can get a FTC for 80% of foreign taxes paid by the CFC although the IRS’s recent announcement bodes well for confirmation of such position.

The §962 election is made on a year-by-year basis with the tax return filed for that year.  As a result, US individual shareholders facing a significant tax on GILTI may wish to consider making this election to lower the taxes due.  However, an individual making this election will also be subject to US tax when it receives a dividend from the CFC.  If the individual paid tax on GILTI without making this election, then no tax would be imposed on the dividend.

Dividends from a foreign corporation are generally taxed at regular tax rates unless the dividend is from a “qualified foreign corporation” which is taxed at the long term capital gains tax rate of 20%.  A qualified dividend is a dividend from a foreign corporation that is eligible for benefits under an income tax treaty between the US and their home country.  The US has income tax treaties with many nations (e.g., England, France, Germany), but not with all nations.  The US does not have income tax treaties with most “tax haven” countries (eg, BVI, Cayman Islands).

In brief, the ability to make a Code §962 election to reduce the GILTI tax rate is a planning option that individual taxpayers should consider.

On April 17, the IRS issued a second round of proposed regulations addressing qualification as a Qualified Opportunity Zone (QOZ) Fund and related issues. This latest guidance addresses several unanswered questions and creates added flexibility, which should expand the ability to form QOZ Funds.

The regulations clarified that a QOZ Fund can be an operating business such as a start-up company operating out of a QOZ.  A tech company can be formed in a QOZ and qualify even if its customers span the world as long as it is principally operated in the zone as determined under certain guidelines in the regulations.  The regulations also clarified that QOZ fund status is maintained even if the space occupied by the fund straddles over into a non-zone as long as the majority of the property is in the zone.

The regulations also made real estate development more viable with a QOZ Fund.  Under prior guidance, the purchase of an existing building in the zone required the fund to make “substantial improvements” to the property.  Substantial improvements required the fund to invest more than the purchase price of the building into improvements to the property, which must be completed within 30 months.  This latest guidance relaxes that rule and provides that the purchase of abandoned, dilapidated or run-down property in the zone that has been vacant or unused for at least five years should not be subject to this substantial improvement requirement.  The rules were also relaxed for purchases of land.

The IRS also clarified that the ownership and operation, including leasing of real property, can be an eligible active trade or business.  However, the IRS indicated that the ownership and leasing of property pursuant to a triple net lease is likely problematic because such activities generally are not considered an active trade or business eligible for QOZ Fund status.  Properly structuring leases and real estate activities will be important to insure qualification as a QOZ Fund.

From the investor’s perspective, a QOZ Fund passing at death raised many issues that were unclear under prior guidance. The IRS addressed these concerns and indicated a transfer at death will not trigger gain inclusion nor will a transfer by the estate to a beneficiary. The IRS also indicated the next generation can step in the shoes of the decedent and get QOZ tax benefits.  Furthermore, the recipient of the QOZ interest can tack the holding period of the decedent, which will make it easier to exclude gain on a sale of the QOZ interest held for at least ten years at the time of sale.  However, the normal step-up in tax basis for property received from a decedent does not apply to eliminate any deferred gain from being taxable.

The regulations allow a taxpayer who has a capital gain to buy an eligible interest in the fund from an existing investor or the fund itself.  The regulations recognize that a partner may contribute property rather than cash to a QOZ Fund.  In that case, the regulations provide that tax-free roll-over of capital gain is generally limited to the tax-basis of the contributed property.  Also, the original legislation allowed the investor to elect to not be subject to tax if they sold their QOZ investment after holding it for 10 years or more.  The latest guidance extends this exclusion to sales by the QOZ Fund of property held for at least 10 years.

The regulations recognized that a sale of QOZ property by the fund itself may cause loss of QOZ Fund status.  In response, the regulations allow the fund to sell QOZ business assets and then reinvest in new QOZ business assets within 12 months and still retain QOZ Fund status.  However, any taxable gain on the sale is still recognized at the time of sale and the partners of the fund will have to pay tax on their share of that taxable gain.  The regulations also give a QOZ fund more time to invest cash contributed by its investors without jeopardizing QOZ fund status.

Finally, distribution of refinancing proceeds may be allowed to be made tax-free up to the partner’s basis for their partnership interest, though there are potential concerns under the regulations that it could be treated as a disguised sale.  As a result, care in structuring debt financed distributions is needed, which may require waiting two years from the capital contribution to the fund.

The bottom line is that the IRS was very responsive in making a QOZ Fund a more viable planning option.  Let us know how we can help your creation of a fund or investment in a fund.