On March 31, 2014, New York State Governor Andrew Cuomo signed into law the 2014-2015 New York State Budget (Budget), which results in the most significant overhaul of New York’s franchise tax in decades. The Budget brings about monumental change for corporate taxation in New York by eliminating the Bank Franchise Tax (Article 32), subjecting financial institutions to the Corporate Franchise Tax (Article 9A), and making significant changes to the Corporate Franchise Tax, including:
1. Implementing unitary combined reporting;
2. Expanding the state’s use of economic presence nexus;
3. Modifying the income tax base;
4. Changing the receipts sourcing for apportionment purposes;
5. Creating a new Prior Net Operating Loss (PNOL) deduction; and
6. Reducing the income tax rate from 7.1% to 6.5% and other miscellaneous revisions
It is important to note that most of the Budget provisions are effective for tax years beginning on or after January 1, 2015, however several amendments are effective earlier (January 1, 2014) or later (January 1, 2016).
Unitary Combined Reporting
The Budget’s most significant change to the Corporate Franchise Tax is the adoption of unitary combined group reporting. Although the Corporate Franchise Tax has been a separate entity reporting regime, combined reporting has been permitted or required under New York tax law in select circumstances. Specifically, taxpayers were permitted or required to file a combined return when filing a separate company return would not properly reflect the taxpayer’s income or expense in New York. More recently, New York tax law was supplemented for tax years beginning after January 1, 2007 to require taxpayers to file a combined return when the taxpayer had “substantial intercorporate transactions” with related affiliates. This selective combined return regime has caused an overwhelming amount of controversy and uncertainty for taxpayers determining their filing status and, if filing a combined return, the composition of the combined group.
2. Adoption of Water’s-Edge Combined Reporting
The Budget addresses the composition of group issue by adopting a water’s-edge unitary combined group tax return. Specifically, the Budget provides that taxpayers shall file a combined report with entities it (a) owns or controls directly or indirectly, and (b) with which it is engaged in a unitary business. The term “unitary business” is not defined in the newly enacted provisions. The new law eliminates the controversial issue of whether related entities have “substantial intercorporate transactions” or “distortion.”
The Budget includes an election that permits taxpayers to include all the members of its commonly owned group in a single return, regardless of whether the members establish a unitary relationship. Such an election is required to be made on an original timely filed return of the combined group and is irrevocable for seven years. An effective election automatically renews after the seven-year term for another seven years unless revoked.
3. Additional Included Group Members
However, the combined return extends beyond the standard water’s-edge unitary combined group. Specifically, the new unitary combined reporting regime further expands the combined filing group filing by requiring taxpayers to include:
1. “Combinable” captive insurance companies;
2. Alien corporations with effectively connected income; and
3. Captive real estate investment trusts (REITs) and regulated investment companies (RICs).
Further, the new law retains the exclusion from the Corporate Franchise Tax corporations subject to Insurance Tax (Article 33) (except combinable captive insurance corporations as stated above) and the franchise tax on transportation and transmission corporations (Article 9).
a. Combinable Captive Insurance Companies
The New York unitary combined group will include a “combinable captive insurance company.” Historically, insurance corporations have been subject to Insurance Tax (Article 33), including captive insurance companies, which excluded such entities from the Corporate Franchise Tax. However, the New York tax law was amended to subject an overcapitalized (or “stuffed”) captive insurance company to the Corporate Franchise Tax. New York defines an “overcapitalized” captive insurance company as those insurance companies with 50% or less of its gross receipts consisting of premium income. The Budget renames “overcapitalized” captive insurance companies as “combinable” captive insurance companies. Further, the Budget limits the definition of “premiums” to “premiums from arrangements that constitute insurance for federal income tax purposes” for purposes of the determination.
b. Alien Companies with Effectively Connected Income
In addition, the New York unitary combined group will include an alien corporation that has effectively connected income for the taxable year. Historically, New York has excluded alien corporations from a combined return. The Budget provisions require taxpayers to determine the alien corporation’s effectively connected income regardless of any treaty protections (when the treaty does not prohibit state taxation of such income). As a result of such non-conformity, alien corporations may have effectively connected income for New York Corporate Franchise Tax purposes but not for Federal income tax purposes.
c. “Overcapitalized” Admitted Non-Life Insurance Corporations
Further, the Budget adds a curious provision that expands the Commissioner’s authority to make a discretionary adjustment related to “overcapitalized” admitted non-life insurance corporations. Specifically, the Commissioner is granted the authority to include all of the non-premium income of an “overcapitalized” non-life insurance subsidiary in the taxable income of an Article 9-A parent (direct or indirect). The insurance company would be considered “overcapitalized” if it derives 50% or less of its gross receipts from premiums. This is similar to the “combinable” captive insurance company provision, except for the fact that this provision permits the Commissioner to make an IRC § 482 type discretionary adjustment to simply shift the investment income to the Article 9-A parent, while the captive insurance company is included in the combined group return. This discretionary type of adjustment results in premiums still being subject to Article 33 (the premium tax under New York Tax Law § 1502-a), the investment income being subject to Corporate Franchise Tax under Article 9-A, and no potential apportionment dilution from the insurance company (because the company is not combined with the parent, as it is in the captive insurance company context).
4. Finnegan Method
The Budget retains the Finnigan method for the computation of income and factors for the members of the unitary combined reporting group. Disney Enterprises, Inc. v. Tax Appeals Tribunal, 10 N.Y.3d 92, 888 N.E.2d 1029 (2008). The Budget specifies that the group member’s income, apportionment and attributes (NOL and PNOL) are aggregated and applied against the group’s aggregate business income to compute the group business income. As a result, the income and factors for all members of the combined group return are aggregated to arrive at a single business income and apportionment percentage to compute New York business income that is subject to the statutory tax rate.
The Budget expands New York’s imposition of the Corporate Franchise Tax with the application of an economic presence nexus standard, partnership nexus, and repealing an exemption from the imposition statute for activities related to fulfillment services.
New York tax law currently applies economic presence nexus under the Bank Franchise Tax for credit card companies. The Budget incorporates the Bank Franchise Tax economic presence nexus standard for Corporate Franchise Tax purposes. Specifically, the amended New York tax law provides that corporations that derive more than $1 million of receipts from New York are subject to the Corporate Franchise Tax. Further, the Budget provides that the analysis of economic presence nexus for a combined group is performed on an aggregated basis. The receipts from members of a combined group with more than $10,000 of receipts from New York are aggregated to determine whether the group has exceeded the $1 million of receipts threshold.
In addition, the Budget includes new legislation that expressly provides that a corporate partner in a partnership operating in New York has nexus by way of its partnership interest. The amended New York tax law provides that a partnership that has nexus (even economic presence nexus) with New York will subject its partners to the Corporate Franchise Tax.
The Budget also repeals the fulfillment center exemption from the imposition statute. As a result, corporations that have fulfillment services conducted on their behalf in New York no longer enjoy an exemption from the Corporate Franchise Tax.
Definition of Business Income
Historically, the Corporate Franchise Tax is calculated based on a unique income tax base. Unlike many states that conform to the Uniform Division of Income for Tax Purposes Act, which divides income between business and non-business income, New York tax law requires corporate taxpayers to categorize income as business income, investment income or subsidiary income. New York treats each category differently for Corporate Franchise Tax purposes. For Corporate Franchise Tax purposes, income from subsidiary capital has been excluded from the income tax base (although the capital was subject to tax), while investment capital has been apportioned based on the underlying investment’s presence in New York (oftentimes smaller than the taxpayer’s).
Historically, New York apportioned investment income based on the New York presence of the underlying investment and subject the apportioned income to the Corporate Franchise Tax rate. It is not uncommon for taxpayers to invest in an investment that has a very small presence in New York (thereby limiting the amount of tax on income earned from the investment).
2. Repeal of Subsidiary Capital Tax Base
The Budget repeals the subsidiary capital tax base from the Corporate Franchise Tax and the associated benefits for income from subsidiary capital. Further, the Budget redefines “business income” as entire net income minus investment income and other exempt income.
3. Investment Income and Other Exempt Income
The Budget eliminates the tax on investment income by excluding it from the definition of business income. Further, the Budget narrows the definition of “investment capital” to solely include stock (an interest in a corporation treated as equity for federal income tax purpose) in a non-unitary entity that is held more than six months but are not held for sale to customers. The new law creates a presumption that an investment is not unitary when the taxpayer owns (directly or indirectly) less than 20% of the voting power of the stock of a corporation. The amended definition eliminates from the definition of investment capital “bonds and other securities, corporate and governmental,” severely narrowing the investment capital base. Further, the Budget includes an interesting provision, which states that an interest in a “debt obligation or other security” that is constitutionally prohibited from being apportioned to New York is included in investment capital.
The Budget defines “other exempt income” as exempt unitary corporation dividends and exempt controlled foreign corporation income. Exempt unitary corporation dividends are dividends (less attributable expenses) from a corporation conducting a unitary business with the taxpayer that is not included in the unitary combined return (e.g., entities subject to Article 9 or 33). In addition, exempt controlled foreign corporation income means income (less attributable expenses) required to be included in federal taxable income pursuant to IRC § 951(a) from a unitary entity that is not included in the unitary combined report.
4. Expense Attribution Principles
For purposes of determining investment income and other exempt income, the Budget retains the expense attribution principles from the current Corporate Franchise Tax provisions. Specifically, the new provisions require taxpayers to attribute interest expense to the preferentially treated categories of income (i.e., investment income and other exempt income). The Budget further provides taxpayers an election to simplify the attribution of interest expense to the preferentially treated investment income and other exempt income. Specifically, the new provision permits taxpayers to elect to reduce the investment income and other exempt income by 40% to represent the expense attributable to investment income (or other exempt income). As a result, the taxpayer would eliminate any controversy regarding the proper attribution of expenses by foregoing 40% of the preferentially treated investment income.
The Budget restructures the receipts sourcing provisions of the Corporate Franchise Tax and adopts apportionment sourcing provisions that require market (customer) based sourcing for all receipts. In addition, the Budget provides sourcing rules for a new category of receipts, digital goods. Further the new apportionment provisions include specific sourcing provisions for financial transactions and an election for taxpayers to source a flat 8% of their receipts from a “qualified financial instrument” (QFI) to New York.
1. Categories of Receipts
Presently, New York tax law requires taxpayers to characterize receipts for sourcing purposes into four general categories and apply several special rules for specific industries, as follows: (1) sales of tangible personal property; (2) sales of services; (3) rents and royalties; (4) sales of services to an investment company; (5) a registered broker-dealer; (6) an air-freight forwarder; (7) a gas pipeline transmission or transportation business; (8) a railroad business; and (9) other business receipts.
The new apportionment provision creates a new category for digital products, replaces the general services category with specific service categories, and incorporates any residual services (other services) into the other business receipts category. As a result, taxpayers must characterize receipts into nine categories for sourcing purposes, including: (1) tangible personal property; (2) rents and royalties; (3) digital products; (4) financial transactions; (5) advertising services; (6) gas transportation or transmission services; (7) railroad and trucking services; (8) aviation services; and (9) a catch-all category for other services and other business receipts.
2. Market Sourcing for Service Receipts
In addition to modifying the categories of receipts, the Budget includes new sourcing rules for services. Historically the characterization of receipts has been a very controversial issue because of the fact that “services” were sourced on an origination (location of performance) basis and all other categories were sourced based on a destination (location of the market) basis. As a result, a change in the characterization of receipts from a “service” to anything else had profound consequences for the computation of the taxpayer’s New York apportionment factor. The Budget eliminates this controversial issue by providing consistent sourcing rules for all receipts, i.e., destination (market) based sourcing.
Further, the Budget provides specific rules related to advertising based on the type of media used for delivery. In general, the new law sources advertising receipts to the location of the advertisement’s viewership. The new apportionment provision’s advertising receipts category encompasses advertising from newspapers and periodicals, television and radio, and other advertising receipts such as Internet advertising. Specifically, the new law provides that print advertising is sourced to the location where the print is delivered, and television, radio, and Internet advertising receipts are sourced to the location where the program or website is viewed.
3. Digital Goods Receipts
The Budget creates a new receipt category for sales of digital products and generally sources the receipts to the customer’s location. The new apportionment provision will impose a four-step hierarchy for determining the source of receipts from digital products. The new law sources digital products, which include services or property combined with services, to the location where the customer primarily uses the digital product. If the taxpayer cannot identify the primary use location, then the receipts are sourced to the location where the customer receives the digital product. If the taxpayer cannot identify the receipt location, then it must apply the prior year’s apportionment factor for the digital product, followed by the current year apportionment factor for digital products that can be sourced.
The sourcing of digital goods is an issue that has been controversial across the country. The new legislation provides some guidance regarding how to handle such transactions, but the Department will need to provide additional guidance in the form of regulations to provide further certainty.
4. Financial Transaction Receipts
The Budget sources financial transactions on a market approach. The new provisions include specific applications of the market sourcing rules for receipts received by certain providers of financial services and for financial transactions.
The Budget provides specific rules regarding the receipts earned by providers of financial services, including (1) receipts from broker-dealer activities; (2) receipts from credit card activities; and (3) receipts from services to investment companies. Specifically, the new law requires taxpayers to source receipts from broker-dealer activities or credit card activities to the location of the paying customer. In most instances, individual customers will be deemed located at their mailing addresses, and business customers will be deemed located at their commercial domiciles. In addition, the new apportionment provision for receipts from services to investment companies will be sourced based on the number of shares held by shareholders in New York divided by the total shares.
In addition, the Budget provides rules regarding the application of the market sourcing provisions to nine categories of financial instruments, including:
2. Federal, state and municipal debt;
3. Asset-backed securities and other government agency debt;
4. Corporate bonds;
5. Reverse repurchase and securities borrowing agreements;
6. Federal funds;
7. Dividends and net gain from stock or partnership interests
8. Physical commodities; and
9. Other financial instruments.
Generally, the new provisions source receipts whenever practicable to the location of the market (e.g., borrower for non-real property lending, purchaser for asset-backed securities, commercial domicile for corporate bonds). However, in several circumstances (e.g., reverse repurchase agreements, securities borrowing agreements, and federal funds), the new law resorts to a proxy of the New York market (8%), which is based on the New York portion of the U.S. gross domestic product.
In addition, the Budget provides taxpayers an election to source 8% of all net income from QFIs to New York (the QFI Election). The QFI Election is an annual, irrevocable election that applies to all QFIs, and applies to all members of a combined group. The new law defines QFI as a financial instrument that is marked to market under Internal Revenue Code § 475 or § 1256, and is not a loan secured by real property. The election provides taxpayers with a simple method to source their receipts from such financial instruments without having to spend resources tracking down the proper sourcing for each QFI.
5. Other Service and Business Receipts
The Budget renames and modifies the “other business receipts” (residual) category to “other service and business receipts,” and to include all receipts that are not specifically addressed in the defined categories. The new law will impose a hierarchy, similar to the hierarchy for sourcing sales of digital products, for determining how to source other services or business receipts. First, other service and business receipts are sourced where the benefit is received. Next, the new apportionment provision sources such receipts to the delivery location. Finally, if the location where the benefit is received or the delivery location is unknown, taxpayers must source other service and business receipts according to their apportionment factor for those receipts from the prior year, followed by the current year’s apportionment factor for locatable other service and business receipts.
As with the digital goods sourcing provision, the Department will likely be asked for additional guidance regarding transactions that fall into the residual “other service and business receipts” category.
Net Operating Losses
The Budget makes significant changes to the creation and use of a net operating loss (NOL) for purposes of the unitary combined reporting regime. The treatment of NOLs will differ significantly for those created prior to the adoption of the Budget’s combined reporting regime.
1. NOLs Created Pre-Adoption of Unitary Combined Reporting
For NOLs created during pre-unitary combined reporting periods, the Budget converts the NOL into a prior net operating loss conversion subtraction (PNOL). The PNOL was created to preserve the value of the pre-unitary combined reporting NOLs for use in the post-unitary combined reporting periods. As a result of the change to the filing methodology, the PNOL construct prevents the use of NOLs that were not included in a prior New York tax filing to offset income of the new unitary combined reporting group.
Taxpayers are permitted to use the PNOL over a 10-year period on a pro-rata basis (10% per year). If a taxpayer is unable to use the entire 10% of PNOL permitted in a tax year, it is permitted to carry forward the excess limit to the subsequent tax years through 2036. A taxpayer’s PNOL is applied to offset taxable income of the group before its post-unitary combined reporting NOL is utilized. A taxpayer can make an election to use its PNOL more quickly, in the 2015 and 2016 tax years (no more than 50% per year), but an electing taxpayer is not permitted to carry forward any of its PNOL after the 2016 tax year if it fails to use all of the PNOL. As a result, taxpayers must be sure that they will be able to utilize the PNOL in the 2015-2016 tax years (taking into consideration the alternative tax base calculations) before making such an election.
A Corporate Franchise Tax filer is permitted to calculate a PNOL with the “unabsorbed net operating loss” from the last tax period (Base Year) prior to the implementation of the new unitary combined reporting regime. An unabsorbed net operating loss is defined as the unused NOL pursuant to N.Y. Tax Law §§ 208.9(f) or 1453(k-1) “that was not deductible in previous taxable years and was eligible for carryover on the last day of the base year subject to the limitations for deduction under such sections . . .” A taxpayer multiplies its unabsorbed NOL by its Base Year effective tax rate (business allocation percentage and tax rate). The sum is then divided by 6.5% to arrive at the PNOL pool that can be used in the post-unitary combined reporting periods.
2. NOLs Created Post-Adoption of Unitary Combined Reporting
For NOLs created post-unitary combined reporting (i.e., tax years beginning on or after January 1, 2015), taxpayers are permitted to carry forward an NOL for 20 years and carry back an NOL (created by members included in the unitary combined report) for three years.
3. Application of NOLs to Unitary Combined Business Income
Historically, New York tax law limited the taxpayer’s use of an NOL to the extent an NOL was used for federal income tax purposes. The taxpayer’s use of an NOL in the unitary combined reporting period is no longer limited to the amount of the federal NOL deduction. In addition, taxpayers were required to use the NOL deduction to the extent available to eliminate any entire net income, regardless of whether one of the other alternative bases would have exceeded the entire net income base. The Budget eliminates this restriction. Therefore, the NOL is used only to the extent that the entire net income based tax is exceeded by the capital or fixed tax bases.
The Budget reduces the tax rate for the business income base, provides for the phase-out of the capital base (through a gradually reduced rate over seven years) and increases the metropolitan commuter transportation district (MCTD) tax surcharge rate. For purposes of computing the business income tax, New York is reducing the rate from 7.1% to 6.5% for tax periods beginning on or after January 1, 2016. It is important to note that the business income tax rate reduction takes effect one year after almost all of the other Budget provisions, on or after January 1, 2015.
Further, New York even provided additional benefits to qualified manufacturers by reducing the tax rate to 0% for tax periods beginning on or after January 1, 2014. Moreover, New York is expanding its definition of “manufacturer” to apply to taxpayers that do not satisfy New York’s historic “principally engaged” test if the taxpayer employs at least 2,500 employees in manufacturing in New York and has property in New York used for manufacturing with an adjusted basis of at least $100 million. The Budget also includes a unique provision that prescribes the remedy in the event a court invalidates this 0% tax rate for manufacturers. Specifically, the Budget prescribes that, if a court invalidates the 0% tax rate, manufacturers will be subject to the same rate as all other taxpayers (6.5%), and no taxpayer will receive the preferential 0% tax rate.
In addition to changing the tax rate on the business income base, New York is phasing out the capital tax base by reducing the tax rate to zero over the course of the next seven years. In addition, the maximum limit on the capital tax base has been reduced from $10 million to $5 million. New York begins reducing the tax rate on capital for tax years beginning on or after January 1, 2016 (reduced from 0.15% to 0.125%) and reduces the tax rate to zero for tax years beginning on or after January 1, 2021. Once the capital base is phased out, the Corporate Franchise Tax will be the greater of the business income base or the fixed dollar minimum.
Finally, New York increased the tax rate on the MCTD surcharge for tax years beginning on or after January 1, 2015 and before January 1, 2016. For this period, the rate increased from 17% of the business income tax imposed (1.207%) to 25.6% of the business income tax imposed (1.664%). For periods after January 1, 2016, the rate is to be determined by the Commissioner of the New York State Department of Taxation and Finance, who is required to set the rate to ensure that the surcharge meets but does not exceed the projected revenue from the surcharge in prior years. The delegation of the authority to set the MCTD rate to the Commissioner, the leader of the state agency responsible for collecting tax, may be controversial amongst taxpayers. In light of the potential controversy, the Budget includes a unique provision, which states that if the MCTD tax surcharge rate is determined to be invalid, the rate will be set at 27.1%, which is 1.5% higher than the rate which the Budget has just increased.
The Budget brings about the biggest change to the Corporate Franchise Tax in half a century. The tax reform makes significant strides to address many of the most controversial issues related to the Corporate Franchise Tax.