Welcome to another edition of quarterly updates from Reed Smith on state tax developments in Illinois, providing you with insight and analysis on key cases, administrative releases, and legislation.
Illinois Sales and Use Tax Sourcing Regulations Shakeup
On November 21, 2013, in Hartney Fuel Oil Company v. Hamer, the Illinois Supreme Court determined that the longstanding regulations for sourcing sales for local sales and use tax purposes promulgated by the Illinois Department of Revenue (the “Department”) were invalid.1 The Supreme Court’s decision was also notable because the court applied the Illinois Taxpayers Bill of Rights2 to protect the taxpayer against liability and penalties for periods in which the taxpayer relied on the invalidated regulations.
Following the Hartney decision, the Department issued emergency regulations (the "Rules") to provide guidance to taxpayers in determining their local retailer’s occupation tax ("ROT") liabilities.3 The Rules provide an analytical structure to determine the jurisdiction to which ROT is due on a sale of tangible personal property. The Rules further provide definitive sourcing for over-the-counter sales, for sales filled with in-state inventory, for excavated mineral sales, and for vending machine sales. For multi-jurisdictional sales operations, the Rules offer a protocol for identifying competing sourcing jurisdictions, and a principle-based, tie-breaker among the competing jurisdictions, based on government services enjoyed by the retailer. For sales that have been sourced to a local jurisdiction solely on the basis that order acceptance occurred in that location, the Rules set forth objective and definitive criteria to determine whether that order acceptance site remains the sourcing location for periods after the Hartney Fuel decision.
Sourcing for Sellers Doing Business in Multiple Jurisdictions:
Where the seller is engaged in retail operations in multiple jurisdictions, the Rules identify primary factors that determine where the seller is engaged in the business of selling.
These primary factors include: (i) the location of offices, executives and employees with discretion to negotiate and bind the seller, (ii) where the offers are prepared and made, (iii) where purchase orders are accepted, and (iv) the location of inventory.
The Rules do not give any one criterion more weight than another. As a consequence, if a seller can identify two or more primary factors occurring at different locations, then the primary factors may not provide the seller with a definitive sourcing location. Therefore, the Rules set forth secondary factors to determine the location where the seller is engaged in the business of selling, similarly unranked in priority.
These secondary factors include: (i) the location where marketing and solicitation occur, (ii) where purchase orders and other contractual documents are received when they are accepted, processed or fulfilled in a location other than where received, (iii) the location of delivery to the purchaser, (iv) the location where title passes, and (v) the location of the retailer’s administrative functions.
If the location where the seller is engaged in the business of selling is still unclear after applying these secondary factors, the Rules provide a final tie-breaker that requires that sales be sourced to the location where the seller enjoyed the greater part of governmental protection, and benefitted by being under that protection. While this tie-breaker may appear to require a subjective determination, it is unlikely to be administered as such, and more guidance in the application of the tie-breaker is likely in the near future.
Order Acceptance Location Is Insufficient On Its Own:
The Rules make it clear that order acceptance alone does not constitute engaging in the business of selling. In particular, the Rules provide that the jurisdiction in which order acceptance occurs is not an eligible sourcing location when the seller has no other selling activity in the jurisdiction; the orders are submitted via phone or Internet; and the seller’s employees or agents that accept the purchase order do not negotiate or exercise discretion on behalf of the seller. This provision directly affects the sourcing that heretofore may have been in use by taxpayers or agents of those taxpayers who located "order acceptance" in jurisdictions with a low sales and use tax rate, or jurisdictions that were willing to enter into tax-sharing agreements. This provision also should prevent retailers from sourcing sales to a jurisdiction based merely on the presence, in that jurisdiction, of a "push-the-button" employee or agent, located in a small office.
It bears emphasizing that the Illinois Supreme Court decision in Hartney Fuel contains valuable guidance for which activities do and do not constitute engaging in the business of selling at a given location, and a review of the decision can prove a useful tool for application of the Rules to a well-developed set of facts.
The Rules will be effective for 150 days, unless the Joint Committee on Administrative Rules ("JCAR") votes by a three-fifths majority to suspend them. In addition to the Rules, the Department has filed proposed permanent rules to replace the Rules after the JCAR review process. The proposed permanent rules contain similar language to the Rules, except that the proposed permanent rules do not contain the subsection titled “Long Term or Blanket Contracts,” which is currently found in the Rules. The permanent rules have been republished without the long-term contract provisions, restarting the 45-day clock for comments.
The way in which intercompany sales are addressed in the Rules suggests that the sourcing of such sales could be a future focus of the Department auditors. The Rules (quoting from the Hartney Fuel decision) state that the Department “may look through the form of a putatively [multijurisdictional] transaction to its substance” in order to determine where “enough of the business of selling took place.” However, taxpayers should keep in mind that the Hartney Fuel decision does not bar a taxpayer from organizing its business in such a manner that its sales are sourced to lower tax jurisdictions. In fact, in the final footnote of the Hartney Fuel decision, the court reiterated that Hartney’s arrangement was not without economic substance, and that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.”4
The Department has held two well-attended public hearings to receive comments on the Rules and the proposed permanent rules, and the General Assembly is in session through the end of May; so further developments in this area should be anticipated. (See Case Law Update, below.)
Independent Tax Tribunal
The implementation of Illinois’ new Independent Tax Tribunal (“Tax Tribunal”) was postponed by Senate Bill (SB) 1329, sponsored by Senator Dan Kotowski and Representative Michael Madison. The Tax Tribunal was initially supposed to become operational July 1, 2013, but the chief judge candidate was not appointed by the governor in time. Therefore, SB 1329 delayed the Tax Tribunal start until January 1, 2014, and allowed “eligible” cases – those protested with the Illinois Department of Revenue after June 1, 2013 and that met the other jurisdictional requirements – to opt into the process and be transferred to the Tax Tribunal after January 1, 2014.
In November 2013, Governor Quinn announced the nomination of James Conway as the candidate for the Tax Tribunal’s Chief Administrative Judge. Conway must still be confirmed by the Senate. The Appointment Message (AM 360) for Conway, which was sponsored by Senator Antonio Muñoz, was assigned to the Senate Executive Appointments Committee. AM 360 has not yet been posted for a confirmation hearing.
In December 2013, Governor Quinn announced the nomination of the second Administrative Law Judge candidate, Brian Barov. The appointment message for Barov has not yet been received by the Senate.
The Senate has 60 session days (not calendar days) to respond to the appointments, and if the Senate does not act within the time limits, the appointments will be deemed approved. Therefore, we anticipate that the final makeup of the Tax Tribunal should be known in the next few months.
House Bill 3627
House Bill (HB) 3627 was introduced by Representative Barbara Flynn Currie in the fall legislative session and is currently pending in the Rules Committee. This bill is a re-introduction of the Illinois Corporate Responsibility and Tax Disclosure Act. If enacted, HB 3627 would require all publicly traded corporations that do business in Illinois to provide the Illinois Secretary of State with specified data regarding their corporate income tax liability. The Secretary of State would then make that information available to the public in the form of a searchable database. The City of Chicago is now considering similar legislation (Ordinance # 02012-9148) introduced by Alderman Will Burns in November 2013.
Case Law Update
Linn v. Illinois Department of Revenue: Appellate Court Finds Classification of Trust as an Illinois Resident Untenable under Due Process Clause.
Under the Illinois Income Tax Act (“IITA”), an Illinois resident taxpayer is taxable on 100 percent of its income, and a non-resident taxpayer is taxable only on Illinois source income. Historically, the determination of whether a taxpayer was a resident or a non-resident was determined based on the facts for the tax year at issue for every type of taxpayer, except for trusts. That status quo ended when the Fourth District Illinois Appellate Court decided Linn v. Illinois Department of Revenue.5
In March 1961, A.N. Pritzker, an Illinois resident, established a trust (the “Linda Trust”) with Linda Pritzker as its beneficiary. At the time that the Linda Trust became irrevocable, the grantor, the trustee and the beneficiary were all Illinois residents; the trust assets were deposited in Illinois; and the trust was created under and subject to Illinois law. In 2002, the trustees of the Linda Trust entered into a trust agreement that created the Autonomy Trust 3 (the “Autonomy Trust”) for the benefit of Linda Pritzker, and distributed assets from the Linda Trust to Lewis Linn, as trustee of the Autonomy Trust. The Autonomy Trust was governed by Texas law, except that specific terms were to be interpreted under Illinois law. In February 2004, Linn filed a complaint in the probate court of Harris County, Texas, seeking reformation of the trust’s application of Illinois law to some of the terms, leaving the trust to be regulated entirely by Texas law. The probate court granted the requested relief.
In 2006, Linda Pritzker and the contingent beneficiaries of the Autonomy Trust were not domiciled in Illinois, nor were they residents of Illinois for purposes of the IITA; the trustee was located in Texas and the trust was administered in Texas, and it had no Illinois assets. In April 2007, the Autonomy Trust filed a nonresident Illinois income and replacement tax return for fiscal year 2006, reporting no income from Illinois sources and remitting no tax.
The Department reclassified the trust as an Illinois resident under section 1501(a)(20)(D) of the IITA, which defines a resident trust as an “irrevocable trust, the grantor of which was domiciled in this State at the time such trust became irrevocable,” and therefore, taxed 100 percent of the trust’s reported income and assessed a deficiency liability.
The Autonomy Trust paid the deficiency liability under the State Officers and Employees Money Disposition Act (the “Protest Monies Act”), and Linn, as trustee, filed a complaint for declaratory and injunctive relief, as well as a motion for summary judgment, asserting that the imposition of income tax on the Autonomy Trust violated the Commerce, Due Process and Equal Protection clauses of the United States Constitution, as well as the uniformity clause of the Illinois Constitution.
The state defendants’ cross-motion for summary judgment argued that the grantor of the Autonomy Trust voluntarily established the trust pursuant to Illinois law, that the Texas probate court decision was not binding on the Illinois trial court, and that the assessed tax was in accordance with Illinois statutes. The trial court agreed with the state defendants, concluding that the March 1961 trust agreement provided that Illinois law was to govern the trust agreement and any trusts hereby created, which included the Autonomy Trust, and granted the state defendants’ motion for summary judgment classifying the Autonomy Trust as an Illinois resident under the IITA.
The Appellate Court reversed the decision of the trial court and determined that assessment of Illinois income tax on the Autonomy Trust in 2006 violated the Due Process clause of the United States Constitution.
The court opined that an irrevocable inter vivos trust does not owe its existence to the laws and courts of the state of the grantor in the same way as a testamentary trust does, and therefore does not have the same permanent tie. The court noted that the Autonomy Trust resulted from a January 2002 exercise of the limited power of appointment by the trustees of the Linda Trust. Moreover, the court distinguished that the focus of the due process analysis is on the tax year in question, so the historic events had no influence on determining the residency of the Autonomy Trust for the 2006 tax year. The Autonomy Trust was an inter vivos trust, and it was not in existence when A.N. Pritzker died, so it was not part of the Illinois probate case. Furthermore, the court noted that after the November 2005 Texas reformation order, the Autonomy Trust choice of law provision provided for the application of only Texas law.
The Department has chosen not to appeal the court’s decision; therefore the decision of the court is now final.
Although section 1501(a)(20)(D) of the IITA was not invalidated by the Appellate Court‘s decision, trusts should be reexamining their classification as an Illinois “resident” under the IITA for the current and prior tax years, based on the actual contacts that the trusts had with Illinois for those tax years. Trusts that have previously filed Illinois resident returns based simply on the fact that they fell within the definition of a resident trust in section 1501(a)(20)(D) of the IITA should look at the facts for each open tax year and determine whether to file an amended return as a nonresident trust, and claim a refund of any resulting overpayment.
The Regional Transportation Authority (“RTA”), Cook County, and the Chicago of Chicago are suing vendors in Illinois State Court seeking tax on sales they claim to have been incorrectly sourced.
In RTA v. City of Kankakee, et al., County of Cook v. City of Kankakee, et al., City of Chicago v. City of Kankakee, et al., the RTA, Cook County and the City of Chicago are seeking to collect sales or use tax from vendors that they claim incorrectly sourced sales to other Illinois local taxing jurisdictions.6 The case names the cities and counties that collected the tax, and identifies corporations involved as respondents in discovery and third-party discovery subpoena recipients. The tax rates of the jurisdictions that brought the suits are significantly higher than those to which the defendants sourced their sales. These claims result from the recent decision in Hartney Fuel Oil Company, et al. v. Hamer, et al., and the Illinois Department of Revenue’s recent Emergency and Proposed Regulations, discussed above.
Vendors with multiple locations in Illinois should anticipate becoming involved in this litigation if they have historically been sourcing their Illinois sales to one of the local taxing jurisdictions with a lower rate. As noted above, the Rules make the sourcing determination for vendors with multiple Illinois locations a fact-intensive, multi-factor analysis.
RTA sues American Airlines and the City of Sycamore for sales tax revenue.
A new lawsuit filed by the RTA in the Circuit Court of Cook County against American Airlines Group, Inc. (“American”) and the City of Sycamore, Illinois, gives an indication of the type of relief that might be sought from vendors that are named as a defendant as part of the Illinois sales and use tax sourcing litigation. In Regional Transportation Authority v. American Airlines Group, Inc.,7 the RTA seeks a declaratory judgment that American’s fuel purchases from its subsidiary, American Supply – which is located in the City of Sycamore, 50 miles from O’Hare airport and outside the RTA taxing jurisdiction – are, in actuality, sales occurring within the RTA taxing jurisdiction, and should be sourced accordingly on a go-forward basis. In addition, the RTA asks that American pay the RTA all of the sales tax revenues that were remitted to Sycamore, rather than to the RTA, plus statutory interest. In the alternative, the RTA asks that a constructive trust be imposed for all sales tax revenues Sycamore received from American, as well as for all sales tax revenues that Sycamore rebated to American pursuant to American’s agreement with Sycamore to source sales to Sycamore in exchange for American locating its order processing operations within Sycamore.
In an alternative count, the RTA asks that the court declare that American was not subject to the sales tax at all, but was instead subject to Illinois Use Tax on its purchases of fuel, and asks for the amount of Use Tax revenues the RTA would have received. The 6.25 percent Illinois Use Tax includes a 1.25 percent local tax component, the proceeds of which are distributed to counties and municipalities on the basis of population, rather than on the situs of a purchase or sale. Thus, the RTA asks that American be made to pay Illinois Use Tax, rather than the Illinois sales tax, on the sales sourced to Sycamore.
Interestingly, the Department is not named as a defendant in the RTA’s suit, and no allegations are made about the Department. The Department’s current Emergency Rules on sourcing would appear to foreclose any effort to seek declaratory relief from the Department, as the Emergency Rules are the law currently in effect, as will be the case for the Department’s already proposed permanent rules, if and when they are adopted. Of course, such rules may result in the sourcing of all sales in a manner to the RTA’s liking, but unless they are attacked as invalid, the rules would obviate the need for the declaratory relief requested. In addition, under Illinois law, the Department is charged with the collection and distribution of local taxes. As a consequence, the RTA’s suit against American could result in double taxation, because the RTA is asking American to pay for a second time, the taxes it already paid to the Department and that were previously sourced to Sycamore. This completely ignores the Department’s statutory authority to reallocate and recover misallocated local tax revenues. Likewise, if American were required to pay Illinois Use Tax instead of Illinois sales tax as a result of the RTA’s suit, the amount of Use Tax that might be distributed to the RTA would not correlate to the amount of sales tax that the RTA would have received if American’s sales were sourced in the manner that the RTA is requesting, because Use Tax receipts are distributed state-wide based on population.
One must question whether the Department will be content to allow the RTA to do an end-run in court around the Department’s statutory role as administrator of the local sales tax laws at issue, and as the administrator of the Use Tax Act, or whether the Department will seek to intervene to assert its role in making some of the determinations the court is being asked to make, and in implementing some of the relief the court is being asked to dispense.
1. Hartney Fuel Oil Co. v. Hamer, Ill., No. 2013 IL 115130 (Nov. 21, 2013).
2. 20 ILCS 2520/4(c) (West 2008).
3. The Rules, in Title 86 of the Illinois Administrative Code, in specific parts of the Title 86, will provide identical sourcing criteria for the following 10 taxes: Part 220 – Home Rule County Retailers’ Occupation Tax, Part 270 – Home Rule Municipal Retailers’ Occupation Tax, Part 320 – Regional Transportation Authority Retailers’ Occupation Tax, Part 370 – Metro East Mass Transit District Retailers’ Occupation Tax, Part 395 – Metro East Park and Recreation District Retailers’ Occupation Tax, Part 630 – County Water Commission Retailers’ Occupation Tax, Part 670 – Special County Retailers’ Occupation Tax for Public Safety, Part 690 – Salem Civic Center Retailers’ Occupation Tax, Part 693 – Non-Home Rule Municipal Retailers’ Occupation Tax, and Part 695 – County Motor Fuel Tax.
4. Hartney Fuel Oil v. Hamer, fn.6; quoting Gregory v. Helvering, 293 U.S. 465, 469 (1935).
5. 2013 IL. App. (4th) 121055.
6. Regional Transportation Authority v. City of Kankakee; Village of Channahon; Minority Development Company, LLC; MTS Consulting LLC; Inspired Development, LLC; Corporate Funding Solutions, LLC; and Capital Funding Solutions, LLC, Case No. 2011 CH 29744 (filed February 3, 2014); County of Cook v. City of Kankakee; Village of Channahon, Minority Development Company, LLC, MTS Consulting, LLC, Inspired Development, LLC; Corporate Funding Solutions, LLC; and Capital Funding Solutions, LLC, Case No. 2011 CH 34266 (filed February 3, 2014); City of Chicago v. City of Kankakee; The Village of Channahon; MTS Consulting, LLC; Inspired Development LLC; Minority Development Company LLC; Corporate Funding Solutions; and Capital Funding Solutions, Case No. 11 CH 29745 (filed February 3, 2014).
7. 2014 CH 04240.1