unitary business Archives

unitary business

Colorado Changes Rules for Determining Members of Combined Filing Group

by Stephen P. Kranz, Michael J. Hilkin and David Jasphy | May 20, 2024 | Colorado, Income Tax, Tax Base, Unitary Business

Colorado Governor Jared Polis has signed legislation that would replace Colorado’s unique “3 of 6” rule for determining the members of a unitary group for combined reporting purposes and instead adopt what Legislative Council Staff has called “the Multistate Tax Commission’s standard” for determining the members of a combined filing group.

Under current law, a combined report may only contain those members of an affiliated group of corporations as to which three of the following six facts have been in existence in the tax return year and the two preceding years:

Sales or leases between one affiliate and another constitute 50% or more of the gross operating receipts or cost of goods sold of the entity making the sales/leases
Certain back-office services are provided by one affiliate for the benefit of another
Twenty percent or more of the long-term debt of one affiliate is owed to or guaranteed by another affiliate
One affiliate substantially uses certain intellectual property of another affiliate
Fifty percent or more of the board of one affiliate are members of the board or are corporate officers of another affiliate
Twenty-five percent or more of the 20 highest ranking officers of an affiliate are members of the board or are corporate officers of another affiliate.

Under the new law all members of a “unitary business” will be required to file a combined report. A “unitary business” is defined as an affiliated group of entities “that are sufficiently interdependent, integrated, and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts.”

The new law keeps Colorado’s water’s-edge rule in place, but it’s notable that said rule provides an exception for any entity “incorporated in a foreign jurisdiction for the purpose of tax avoidance” while identifying a list of nations where a corporation will be presumed to be incorporated for tax avoidance purposes (including the Cayman Islands, Luxembourg, Monaco, etc.).

Presuming Colorado voters don’t file a referendum petition and get the legislation overturned in November, the new standard would go into effect for tax years beginning on or after January 1, 2026.

California FTB to Discuss Apportionment of Combined Group Income

by Roy E. Crawford | Mar 24, 2016 | Allocation/Apportionment, California, Income Tax, Unitary Business

The California Franchise Tax Board (FTB) will hold a second Interested Parties Meeting at their office in Rancho Cordova on April 20, 2016, dealing with the apportionment of income for combined reporting groups with both financial and non-financial members. The Notice of Interested Parties meeting provides a description of the sourcing methods used in other states and solicits comments on four specific proposals.

The current statute and regulations, applied literally, in effect assign the majority of combined income of bank(s) and broker-dealer(s) to the location of the bank(s) or broker-dealer(s) and its customers. This can produce an issue worth many hundreds of millions of dollars to the bank or broker dealer. We understand that the California FTB has issued ad hoc Notices of Proposed Assessment to some taxpayers based on a distortion theory; some of these cases have gone to the Settlement Bureau, where both the FTB and the taxpayers have settled and executed confidentiality agreements.

The FTB takes these Interested Parties Meetings very seriously. They have an unusual format in that there is not a record of who said what, the goal being to have a full and frank discussion on a non-attribution basis. An early example of collaboration between the FTB and interested parties produced what is now Reg. 25137-10. Before the regulation, many years ago Sears argued that it was not engaged in a unitary business with a finance company subsidiary. Sears lost in the trial court on that issue, but the court also held that Sears was entitled to include intangible personal property in the property factor, and the situs of that property was Illinois, resulting in a refund for Sears. Regulation 25137-10 represented an effort to harmonize the income-producing character of intangible personal property with tangible property in the property factor, and the outcome was that intangible property would be included in the property factor at 20 percent of face value. This regulation and the bank regulation 25137-4.2 provide the current regulatory basis for modification of the statutory formula where high volume, low profit activity is combined with other activity in a combined return, but Reg. 24137-10 only applies where the principal business activity of the combined group is not financial.

Taxpayers should follow these regulatory activities carefully, as evidenced by the adoption of a regulation a few years ago on sourcing income of mutual fund service providers, which was favorable to California-based taxpayers. The statute provided for sourcing income from services at the location of income-producing activities, measured by cost of performance. The adopted regulation instead provides for a form of market sourcing.

A Steep Slope — Vermont Supreme Court Finds AIG Not Unitary With a Ski Resort Based On a Clear and Cogent Evidence Burden of Proof

by Arthur R. Rosen and Richard C. Call | Nov 30, 2015 | Allocation/Apportionment, Constitutional Issues, Income Tax, Nationwide Importance, Tax Base, Unitary Business, Vermont

In the first Vermont Supreme Court decision addressing combined unitary reporting since Vermont’s combined reporting regime became effective in 2006, the court affirmed a lower court’s decision that AIG, the multinational insurance company, was not unitary with a ski resort operated by a subsidiary in Vermont; accordingly, a combined report covering the two businesses was not required. The decision is important because it lays the foundation for future unitary cases in Vermont.

The court agreed with AIG that there were no economies of scale between the operations of AIG and the ski resort. “Because [the entity] is a ski resort and therefore its business type is not similar to AIG’s insurance and financial service business, there is no opportunity for common centralized distribution or sales, and no economy of scale realized by their operations.” On centralization of management, the court noted that although AIG controlled the appointments to the ski resort’s board and management, this did not translate into “actual control” over the ski resort’s operations. Lastly, the Vermont Department of Taxes attempted to argue functional integration based primarily on AIG’s influx of working capital to the ski resort. The court rejected this assertion stating the funding “served an investment rather than operational function. The financing was not part of an AIG operational goal to grow part of its business. Further, there is no operational integration between AIG’s insurance and financial businesses and the ski resort operated by [the resort].”

The case is interesting because it involved whether an instate entity was unitary with its parent. For the year at issue, Vermont had a three factor apportionment formula with a double-weighted sales factor. Presumably, the ski resort had a high Vermont apportionment factor and relatively little income, so including AIG in the combined group increased AIG’s Vermont apportionment factor without significantly diluting its income.

Interestingly, the court addressed AIG’s burden of proof on the unitary issue. The taxpayer argued that a preponderance of the evidence standard should apply. The Vermont Supreme Court disagreed. Looking to the United States Supreme Court’s decision in Container Corp. as well as to decisions of other states, the taxpayer has the burden of proving by “clear and cogent” evidence that its operations are not unitary. Interestingly, the court suggested that one California court decision that applied a preponderance of the evidence standard to a unitary question was distinguishable because that case involved a taxpayer claiming that unity existed — and AIG was claiming that unity did not exist. This disparate burden depending on the direction of the unitary argument may prove important to taxpayers seeking to bring entities or operations into a combined report in Vermont.

State tax professionals may react to this decision in a manner similar to the way many reacted when the Court of Appeals of Arizona decided Talley Industries and Woolworth. Those decisions engendered substantial hope that courts — and, ultimately, state revenue agencies — would analyze unitariness not on the basis of a “checklist” or as a knee-jerk reaction to [...]

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NYS Tax Appeals Tribunal Provides Guidance Respecting Unitary Business Determinations

by McDermott Will & Emery | Jun 2, 2015 | Income Tax, Nationwide Importance, New York, Unitary Business

The New York State Tax Appeals Tribunal has just provided timely guidance respecting the unitary business rule in New York State. In SunGard Capital Corp. and Subsidiaries (DTA Nos. 823631, 823632, 823680, 824167, and 824256, May 19, 2015), the Tribunal found that a group of related corporations were conducting a unitary business and that they should be allowed to file combined returns, reversing an administrative law judge determination.

The unitary business rules have assumed increased importance in New York this year because of recently-enacted corporate tax reform legislation. Effective January 1, 2015, the only requirements for combination in New York State and City are that the corporations must be linked by 50 percent stock ownership and must be engaged in a unitary business. It is no longer necessary for the party seeking combination (whether the taxpayer or the Department of Taxation and Finance) to show that separate filing would distort the corporations’ New York incomes.

In a related but different context, the Department’s unpublished position with respect to when an acquiring corporation and a recently purchased subsidiary can begin filing combined returns (the so-called “instant unity” issue) generally is that combined returns can be filed from the date of acquisition only if the corporations were engaged in a unitary business before they became linked by common ownership. In a recent set of questions and answers about the new law, the Department indicated that instant unitary decisions would be done on a facts-and-circumstances basis, but we understand from conversations with the Department that the existence of a unitary business between the corporations before the acquisition will be of great importance.

The SunGard case involved prior law under which distortion was an issue, but the interesting aspects of the case involve the question of whether the corporations were engaged in a unitary business, as the taxpayers contended. The corporations’ primary business involved providing information technology sales and services information, software solutions and software licensing. The administrative law judge had concluded that there were similarities among the different business segments but that the different segments operated autonomously. Although the parent provided general oversight and strategic guidance to the subsidiaries, the judge concluded that centralized management, one of the traditional criteria for a unitary business, was not present because the parent’s involvement was not operational. The centralization of certain management functions such as human resources and accounting did not involve operational income-producing activities. The judge held that holding companies, inactive companies, and companies with little or no income or expenses could not be viewed as unitary with the active companies. The judge noted that there were few cross-selling or intercompany transactions. Although programs had been developed to encourage cross-selling, they were not initiated until after the taxable years at issue.

The Tribunal reversed the administrative law judge’s decision and engaged in a detailed discussion of the elements of a unitary business that will provide useful guidance to both taxpayers and tax administrators in the future.

Although there were differences among the different segments of [...]

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Decoding Combination: What Is a Unitary Business

by Catherine A. Battin | Apr 14, 2015 | Allocation/Apportionment, California, Constitutional Issues, Illinois, Income Tax, Nationwide Importance, Tax Base

This article is the first of our new series regarding common issues and opportunities associated with combined reporting. Because most states either statutorily require or permit some method of combined reporting, it is important for taxpayers to understand the intricacies of and opportunities in combined reporting statutes and regulations.

In this article, we will explore the foundation for combined reporting – the unitary business principle.

Read the full article.