On June 1, 2018, the General Assembly ratified and sent to the Governor the Appropriations Act of 2018 (the Act). The Act includes numerous changes to North Carolina’s tax laws. Earlier versions of the Act were the subject of Alerts dated April 17, May 15 and May 18. This Alert provides a discussion of all of the more significant tax provisions of the Act. The Act will not, however, become law until the Governor signs the legislation or allows it to become law without his signature or the Governor’s veto of the legislation is overridden.
Except as otherwise noted, the changes described below will be effective as of the date of enactment.
Provisions covered in this Alert:
Internal Revenue Code Conformity
Personal Income Tax Changes
Franchise Tax Changes
Captive Insurance Company Tax Changes
Tax Credit Changes
Sales and Use Tax Changes
Other Tax Changes
Procedural and Administrative Changes
Each year, the General Assembly updates the reference to the Internal Revenue Code (the “Code”) found in G.S. §105-228.90(b)(1b) to incorporate some or all of the changes made to the Code during the preceding year. The Act updates the Code reference from January 1, 2017 to February 9, 2018. This means that North Carolina will generally conform to the Code amendments included in the Tax Cuts and Jobs Act (the “TCJA”) and the Bipartisan Budget Act of 2018 (the “BBA”).
Because of the structure of the North Carolina tax law, conforming to these federal changes has relatively little impact on the calculation of individual North Carolina income tax liability. Specifically, North Carolina taxable income is based on federal adjusted gross income, the calculation of which is largely unaffected by the recent federal legislation. North Carolina also has its own standard and itemized deductions and personal exemptions and is not affected by changes to their federal counterparts. In addition, for both individual and corporate taxpayers, North Carolina decouples from federal bonus depreciation and expensing rules.
However, updating the Code reference means North Carolina will conform to the following federal changes, among others:
The Act decouples from several changes included in TCJA and BBA.
Deduction for Disaster Relief Payments. The Act provides new individual and corporate income tax deductions for amounts received by the taxpayer during the year from the State Emergency Response and Disaster Relief Reserve Fund for hurricane relief or assistance. The deductible amount does not include any amount received by the taxpayer in payment for goods or services. Although certain disaster relief payments are currently excludible for federal and North Carolina income tax purposes, these exclusions do not cover amounts received to replace lost income, as opposed to lost property.
Trooper Training Loan Forgiveness. The Act provides a new individual income tax deduction for amounts forgiven pursuant to the Trooper Training Reimbursement Program, a new program designed to provide forgivable loans to help prospective State Troopers cover the costs of their training tuition.
Exclusion for PESA Accounts. Under current law, beginning in 2018, a taxpayer may deduct the amount deposited during the year in a personal education saving account established under North Carolina’s Personal Education Savings Account Program to hold scholarship funds awarded by the State Education Assistance Authority. The law establishing these accounts included a provision excluding such awards from income, thus creating an unintended double benefit. The Act repeals the exclusion provision, effective for taxable years beginning on or after January 1, 2018.
Electing Partnerships. Under current law, an LLC that elects to be classified as a corporation for tax purposes is subject to the franchise tax. The Act extends this rule to partnerships that elect corporate classification.
Net Worth Tax Base. Under current law, the net worth base is generally calculated under GAAP. Taxpayers that do not keep GAAP books must calculate the net worth tax base in accordance with the accounting method the taxpayer uses for federal tax purposes. The Act makes two changes with respect to these non-GAAP taxpayers. First, the Act eliminates the vague requirement of current law that the accounting method used for federal tax purposes must fairly reflect the corporation’s net worth for purposes of the franchise tax. Second, the Act provides that a non-GAAP taxpayer must value assets subject to depreciation, depletion or amortization in accordance with the depreciation, depletion or amortization method used for federal income tax purposes.
These franchise tax changes are effective January 1, 2019 and apply to the calculation of the franchise tax reported on the 2018 and later corporate income tax returns.
Beginning this year, North Carolina corporate income tax is calculated using single sales factor apportionment. In connection with this change, the General Assembly previously considered - but did not adopt - market-based sourcing for income from services and intangibles. The Act revises the statutory sourcing rules for these types of income.
Income from Services. Under current law, income from services is sourced under an “income-producing activities test.” The Act provides a statutory definition of this test similar to the definition now found in the Technical Bulletins issued by the Department of Revenue (the “Department”). Specifically, the Act defines an income-producing activity as an activity “directly performed by the taxpayer or its agents for the ultimate purpose of generating the sale of the service.” The Act further provides that “Receipts from income-producing activities performed within and without this State are attributed to this State in proportion to the income-producing activities performed in this State to total income-producing activities performed everywhere that generate the sale of service.” The purpose of the amendment appears to be to give equal weight to all income-producing activities so that receipts are apportioned to North Carolina based on the quantum, rather than the value or importance, of the activities performed here.
The Act also clarifies that receipts from incidental services sold as part of, or in connection with, a sale of tangible personal property in North Carolina are sourced to North Carolina, regardless of where those services are performed.
Income from Intangibles. The existing statutory language for sourcing income from intangibles is an unhelpful tautology. The statute provides that such income is sourced to North Carolina if such income “is received from sources within this State.” The Department’s Technical Bulletins provide more concrete rules based on the nature of the intangible. For instance, trademark royalties are sourced to North Carolina to the extent the trademarks are used in the state, while copyright royalties are sourced to North Carolina to the extent the printing or publication originates here, and royalties from patents and similar intellectual property are sourced to North Carolina to the extent the intellectual property is used in production functions carried out in the state. Interest and dividends, on the other hand, are sourced based on the commercial domicile of the payor. The Act revises the statutory language to source all intangible income based on where the intangible is used.
This language appears to codify the existing administrative rules for sourcing trademark, copyright and patent (and other IP) royalties and does not appear intended to work any substantive change in the law.
The impact of the amendment on the sourcing of interest and dividends and other financial intangibles is less clear. We understand that neither the General Assembly nor the Department intended any change in how receipts from these or other intangibles are sourced. We therefore believe that intangibles producing these types of receipts must be considered to be “used” at the commercial domicile of the payor.
The Act clarifies that a captive insurance company that is licensed and taxed by another state is not subject to the North Carolina corporate income, franchise, captive insurance, gross premiums or local privilege taxes or to the insurance regulatory charge, notwithstanding that such a company may insure a risk located in North Carolina. This change is consistent with the practice of all other states, which do not tax foreign captives.
North Carolina’s former tax credits for rehabilitating historic structures expired at the end of 2014 (new credits for restoring historic properties became effective in 2016). Specifically, the old credits expired with respect to rehabilitation expenditures incurred on or after January 1, 2015. The Act provides additional clarity regarding the effective date of this sunset provision. Under the Act, if a taxpayer incurred rehabilitation expenditures before January 1, 2015, the credits will expire if the property is not placed in service by January 1, 2023.
Similarly, the Act provides that for purposes of the new credit, which expires for expenditures incurred on or after January 1, 2020, the Act provides that the credits will expire if the property is not placed in service by January 1, 2028.
The Act makes numerous changes to the sales tax law, many of which are stylistic or clarifying. Among the more noteworthy changes are the following:
Renewals of Service Contracts on Prewritten Software. The Act provides that gross receipts from the renewal of a service contract for prewritten software may generally be sourced to the address where the purchaser received the prewritten software, absent knowledge that location of the software has changed.
Admission Charges. The Act adds a list of activities that are not subject to the sales tax on admission charges. This change is intended merely to clarify the law with respect to certain activities the Department already views as exempt from the tax.
Property Management Contracts. The Act adds a new sales tax exemption for receipts from the sale of a property management contract, defined as a written contract to provide specified management services related to real property used for business, commercial, educational or income-producing purposes. This exemption will become effective January 1, 2020. The effect of the exemption, when it becomes effective, would be to exempt repair, maintenance and installation services performed by a property management company from tax. The revenue laws Study Committee is directed to study this new exemption and recommend to the 2019 General Assembly any changes needed to make the law “concise, intelligible, easy to administer and equitable.”
Prescription Drugs. The Act clarifies the sales tax exemption for prescription drugs by providing that the exemption does not cover pet food even if the manufacturer requires the food to be sold on prescription. The Act also provides that the exemption for over-the-counter drugs sold on prescription does not apply to purchases of over-the-counter drugs by hospitals or other medical facilities for the treatment of patients.
Worthless Accounts. The Act provides that, for purposes of the sales tax exemption for worthless accounts, a worthless account is defined by reference to the definition of “bad debt” under Code §166. The Act also provides that the amount of the exemption does not include interest or finance charges, the sales tax charged on the sale price, uncollectible amounts on property that remains in the seller’s possession, repossessed property or collection expenses.
Sales Tax Exemption for Membership Charges. Under current law, the sales tax on admissions does not apply to the portion of a membership charge that is allowed as a federal charitable deduction. Under prior federal law, a taxpayer was allowed a charitable deduction for 80% of a payment to an institution of higher education that entitled the taxpayer to purchase tickets to athletic events at the institution’s athletic stadium. The TCJA eliminated this deduction. As a result, 100% of membership charges paid to university athletic booster clubs would be subject to the sales tax on admissions if the taxpayer were entitled to purchase tickets as a result of the payment. The Act specifically exempts such membership charges from the sales tax regardless of whether they were deductible for federal purposes.
Qualifying Farmers. The Act provides that various items such as vaccines, insecticides, defoliants and plant growth regulators, which are currently exempt only if purchased by a qualifying farmer, are also exempt if purchased by someone other than a qualifying farmer to fulfill a service for a qualifying farmer. The purchaser must provide an exemption certificate to the retailer.  This change is effective retroactively to July 1, 2014. A person who paid tax on a purchase that was made nontaxable by this retroactive provision may apply for a refund as long as the application is made by October 1, 2018.
Bed and Breakfast Meals. The Act requires that lunch and dinner meals, served at the option of guests staying at a bed and breakfast home or inn, be charged separately on the guest’s bill rather than being included in the room rate. This provision is effective July 1, 2018 and applies to gross receipts derived from the rental of an accommodation that a consumer occupies on or after that date. A retailer who makes a good faith effort to comply with the law but who nevertheless undercollects tax for the period from January 1 through July1, 2018 due to this change in the law is not liable for the undercollection.
Insurance Regulatory Charge. Insurance companies other than captives are subject to an annual charge to fund the costs of the Department of Insurance and other insurance-related regulatory bodies. The rate of the annual charge is set each year by the General Assembly. The Act sets the rate for the 2019 calendar year at 6.5%, the same as the current rate.
Privilege Taxes. The 2017 General Assembly passed a measure that required massage and body therapists to obtain state privilege licenses and pay an annual privilege tax of $50, effective July 1, 2018. This provision failed to become law due to a procedural error. The Act reenacts this provision.
Tobacco Products Tax. The Act provides a reduction in the tobacco product tax rate for a modified risk tobacco product, defined as a tobacco product, such as a smokeless cigarette, sold or distributed for use in reducing the harm or the risk of tobacco-related disease. The rate reduction is equal to 50% for products that have received a risk modification order from the FDA and 25% for products that have received an exposure modification order from the FDA. The Act includes substantiation requirements and forfeiture provisions.
Automatic Extensions. Under current law, a North Carolina return may be extended only by filing a special North Carolina extension request. The Act provides that a person granted an extension to file “a federal income tax return, including a return of partnership income” is granted an automatic North Carolina extension to file the corresponding state return. The person must certify that a federal extension was granted when the person files its state return. This change is effective for taxable years beginning on or after January 1, 2019.
Forms NC-3. North Carolina employers are required to file an annual wage withholding reconciliation form with the Department on Form NC-3 by January 31 of each year. Before 2016, the due date of this form had been tied to the due date of the equivalent federal form rather than to a specific date. For federal purposes, an employer that goes out of business is required to file the federal reconciliation report with the IRS within 30 days from the last day the taxpayer has payroll. An unintended consequence of decoupling from the federal due date was the loss of this 30-day “going out of business” provision. The Act restores this rule.
Penalty for Failure to File Information Return. The current penalty for failure to file a certain information return with the Department is $50 per day. The Act places a $1,000 maximum on this penalty.
Electronic Filing of Returns. The Act makes several changes regarding the electronic filing of returns. First, the Act adds a $200 per return penalty for failure to file certain information returns, principally Form NC-3, in electronic form. Second, the Act directs the Secretary to prescribe when a return, report, payment or other document that is filed electronically is considered to be timely filed. Finally, the Act (i) requires the Department to offer electronic filing of returns if it is cost-effective to do so and the Department has established electronic filing procedures, (ii) directs the Department to prescribe the form of electronically filing each return that is required or permitted to be filed electronically and how the preparer or taxpayer is to sign an electronically filed return, (iii) authorizes the Secretary to waive the electronic filing requirement for any return upon a showing of good cause, and (iv) requires the Department to publish on its website by December 1 of each year a list of returns required or permitted to be filed electronically during the next calendar year.
Individual Income Tax Filing Threshold. Under current law an individual is required to file a North Carolina income tax return only if he or she is required to file a federal return. An individual is required to file a federal tax return if his or her gross income exceeds the federal standard deduction amount. The federal standard deduction is now higher than the North Carolina standard deduction. As a result, taxpayers with income below the federal standard deduction amount may owe North Carolina income tax. The Act therefore decouples the state filing obligation from the federal filing obligation.
Federal Changes. Under current law, if a taxpayer's North Carolina tax liability is affected by a federal correction or other federal determination, the taxpayer must file an amended state return within six months of the federal correction or “final determination by the federal government.” The Act adds a definition of a federal “final determination” to mean “a change or correction of the amount of federal tax due arising from an audit by the Commissioner of Internal Revenue.”
The Act also requires a taxpayer who voluntarily files an amended federal return to file an amended state return within six months of filing the amended federal return. The Department then has until the later of one year after the filing of the amended state return or three years after the filing of the original state return to propose an assessment. If the taxpayer fails to timely file an amended state return, the Department may propose an assessment within three years of the filing of the amended federal return.
These changes are effective for federal amended returns filed on or after the date of enactment.
Franchisor Information Returns. The original version of the Act would have required franchisors with at least one North Carolina franchisee to electronically file an annual informational return containing information to be prescribed by the Department. This change was requested by the Department to assist in the review of cash intensive businesses. This provision was not included in the final version of the Act. Franchisor reporting is still under consideration, but the issue was considered inappropriate for the legislature’s short session.
Sales Taxes on Prepaid Inventory. Recent changes in the sales tax law applicable to repair, maintenance and installation (“RMI”) services created the possibility that a taxpayer who had paid sales tax on the purchase of an item and then used the item in performing a taxable RMI service would have to collect a second tax on the item when it was transferred to the RMI customer. A temporary fix enacted last year allowed the taxpayer to offset the tax due on the RMI service by the amount of tax paid on the purchase of the item in question. This temporary fix is scheduled to expire on July 1 of this year. The Act effectively makes this fix permanent. It also provides that, if the amount of the offset exceeded the tax due for the period in which the offset was claimed, the excess is not eligible to be refunded but may be rolled forward and claimed in subsequent periods.
Sales Tax Filing Extensions. Under current law, the Department may extend the time for filing a sales tax return for up to 30 days. The Act removes the 30-day limitation. This change was prompted by the need to extend the time beyond the 30-day period for taxpayers who were affected by Hurricane Matthew.
Sales Tax Compromises. The Department is authorized to compromise a taxpayer’s liability for sales tax assessments for failure to properly collect and pay sales taxes on admissions, service contracts, prepaid meal plans or aviation gasoline and jet fuel as long as the taxpayer made a good faith effort to comply with the law. Under current law, this provision expires for assessments issued after July 1, 2020. The Act provides that the compromise authority covers any tax period ending before that date regardless of when the assessment is made.
Sales Tax Enforcement Grace Period. Current law prohibits the Department from assessing sales or use taxes on certain transactions covered by the expansion of the sales tax base as long as the taxpayer made a good faith effort to comply with the new law. The grace period covers filing periods beginning on or after March 1, 2016 and ending before January 1, 2018. The Act extends this grace period for an additional year and expands the list of transactions covered.
Property Tax Exemptions. Taxpayers claiming property tax exemptions must file an annual exemption application unless the statute specifically provides that no application or only a single application is required. The Act provides that several recently enacted exemptions qualify for a single rather than annual application. These exemptions are for real property occupied by charter schools, certain energy mineral interests, property located on lands held in trust by the United States for the Eastern Band of Cherokee Indians and mobile classrooms or modular units.
Property Tax Extensions. Under current law, when the last day for taking any action with respect to property taxes falls on a Saturday, Sunday or holiday, the time limit for taking the action is extended to the next business day. The Act extends this next-day rule to situations where the last day for taking an action falls on a day when a disaster declaration is in effect, the tax office is closed and the taxpayer certifies that the Postal Service did not provide service to the taxpayer’s address. This provision is effective for taxes imposed for taxable years beginning on or after July 1, 2018.
Revenue Suspensions. The Act clarifies that, if a corporation or LLC is suspended by the Secretary of State for failing to timely file a tax return or pay a tax, the suspension does not relieve the entity of tax compliance obligations (or the tax liabilities of responsible persons) during the period of suspension.
ABC Permit Holders. The Act requires specified ABC permit holders (including wineries, wine producers, wine importers and wine wholesalers; breweries; distilleries; malt beverage importers and malt beverage wholesalers) to register with the Department and to notify the Department when they discontinue business. This change becomes effective October 1, 2018, and permittees must register before December 1, 2018.
 Act §38.1.(a).
 G.S. §105-130.5(a)(25).
 Act §§38.1.(h) and (i); G.S.§§105-153.5(c)(7) and 116-209.25.
 Act §38.1.(j).
 Act §§38.1.(b) and (c); G.S. §§105-130.5(a)(26) and (27), 105-130.5(b)(29), 105-153.5(c2)(5), (6) and (7).
 Act §38.1.(b); G.S. §§105-130.5(a)(29) and 105-130.5(b)(3b).
 Act §38.1.(b); G.S. §105-130.5(a)(28).
 Act §38.1.(b); G.S. §105-130.5(a)(28).
 Act §38.2.(i); G.S. §105-130.11(b).
 Act §38.2.(j).
 Act §38.1.(c); G.S. §§105-153.5(a)(2)b and 105-153.5(c2)(1) and (2).
 Act §§5.6(j) and (k); G.S. §§105-130.5(b) and 105-153.5(b).
 Code §139.
 Act §35.25.(g); G.S. §105-153.5(b)(13).
 G.S. §105-153.5(b)(12).
 G.S. §115C-595(c).
 Act §§38.10.(m) and (s).
 Act §38.2.(a); G.S. §105-114(b)(2).
 Act §38.2.(b); G.S. §105-122(b).
 Act §38.2.(j).
 Act §38.2.(c); G.S. §105-130.4(l).
 Act §§38.2.(e), (f) and (g); G.S. §§105-228.3, 105-228.4A and 105-228.5(g).
 Act §38.10.(j); G.S. §105-129.39.
 Act §38.10.(k); G.S. §105-129.110.
 Act §38.5.(d); G.S. §105-164.4B(i).
 Act §38.5.(e); G.S. §105-164.4G(e).
 Act §§38.5.(x) and (y); G.S. §§105-164.3(30b) and 105-164.13(61a).
 Act §38.5.(aa).
 Act §38.5.(z).
 Act §38.5.(j); G.S. §105-164.13(13).
 Act §38.5.(j); G.S. §105-164.13(15).
 Act §38.5.(u); G.S. §105-164.4G(f).
 Act §38.5.(k); G.S. §105-164.13E.
 Act §38.5.(aa).
 Act §38.10.(g); G.S. §130A-247.
 Act §38.10.(s).
 Act §22.2.
 S.L. 2017-151, §4.
 Act §38.2.(h); G.S. §105-41(a)(2).
 Act §38.7.(a); G.S. §105-113.4E.
 Act §38.4.(a); G.S. §105-263.
 Act §38.4.(b).
 Act §38.10.(n); G.S. §105-163.7(b).
 Act §38.10.(p); G.S. §105-236(a)(10).
 Act §38.10.(p); G.S. §105-236(a)(10).
 Act §38.10.(q); G.S.§105-263(c).
 Act §38.10.(r); G.S. §105-241A.
 Act §38.1.(g); G.S. §105-153.8(a).
 Act §38.3; G.S. §§105-130.20, 105-159, 105-160.8 and 105-163.6A.
 Act §38.3.(e); G.S. §105-241.8(b).
 Act §38.3.(h).
 Act §§38.5.(h) and (i); G.S. §§105-164.11B and 105-164.11(b).
 Act §38.5.(n); G.S. §105-164.19.
 Act §38.10.(c); G.S. §105-237.1(a)(6).
 Act §38.5.(q); G.S. §105-244.3.
 Act §38.10.(d); G.S. §105-282.1(a)(2)b.
 Act §38.9.(a); G.S. §105-395.1.
 Act §38.9.(b).
 Act §§38.10.(a) and (b); G.S. §§105-230(b) and 105-242.2(a)(1).
 Act §38.6.(c); G.S. §105-113.83A
 Act §38.6.(m).