State and local tax advisor: May 2021
Are you looking for the latest changes in state and local taxes? Find the May 2021 roundup here.
Corporate, personal income taxes: California further conforms to federal treatment of PPP loans and EIDL advance grants
California has enacted legislation generally conforming to federal law that:
- Excludes both forgiven Paycheck Protection Program (PPP) loans and Economic Injury Disaster Loan (EIDL) advance grants from gross income for tax purposes.
- Allows deductions for expenses paid for using forgiven PPP loan funds and EIDL advance grants.
But, California prohibits taxpayers from deducting expenses paid for using forgiven PPP loan funds if they:
- Are publicly traded companies.
- Did not experience at least a 25% reduction in gross receipts.
The legislation applies to tax years beginning on or after Jan. 1, 2019.
Prior legislation (A.B. 1577) excluded forgiven PPP loan amounts from gross income for tax years beginning on or after Jan. 1, 2020. (TAXDAY, 2020/09/11, S.2) Providing the tax benefits instead for tax years beginning on or after Jan. 1, 2019, ensures that the relief covers fiscal year filers.
Also, the prior legislation did not address EIDL advance grant amounts. Conforming to the federal treatment of such amounts provides relief to many small businesses located in low-income communities.
The Internal Revenue Service previously indicated that taxpayers could not deduct business expenses paid for using forgiven PPP loan funds. But, the Consolidated Appropriations Act, 2021 reversed that position by allowing taxpayers to deduct those expenses. This put California out of conformity with federal law. The current legislation builds upon the prior tax relief by providing full conformity to the federal tax treatment of PPP loans with the two exceptions noted above. According to a legislative analysis, this will cover the vast majority of PPP loans.
Ch. 17 (A.B. 80), Laws 2021, applicable as noted; Bill Analysis, Assembly Floor, April 26, 2021.
Corporate, personal income taxes: Elective S corporation and partnership tax enacted
Georgia has enacted legislation allowing an S corporation or partnership to pay the income tax at the entity level.
Election to pay
The irrevocable election can be made annually on or before the due date of filing the income tax return.
Rate of tax
An electing S corporation or partnership will be an income tax equivalent to 5.75% of its allocated and apportioned net income. The shareholders and partners will not recognize their share of the portion of income that the S corporation or partnership pays tax on.
Computation of tax
No electing S corporation, partnership, shareholders, or partners will be entitled to any reciprocity credits regarding the tax paid or any deduction for the income. Further, the electing entity will not be allowed any deduction for taxes that are based on or measured by gross or net income.
The elective tax is applicable to tax years beginning on or after Jan. 1, 2022.
Act 164 (H.B. 149), Laws 2021, effective May 4, 2021.
Income tax: Elective business entity tax enacted
Idaho has enacted legislation creating an elective business entity tax for pass-through entities (PTE). The rate of tax is the current tax rate applicable to corporations in Idaho.
The adoption of the tax is meant to provide a workaround to the federal $10,000 limitation on the state and local taxes deduction.
PTEs eligible to make election
A partnership or an S corporation can elect to pay the business entity tax in any taxable year. A separate election must be made for each taxable year. The election must be signed by:
- Each member of the electing entity.
- Any officer, manager, or member of the electing entity who’s authorized under local law or by the entity’s organization’s documents to make the election and who represents that they have the authorization.
Credit against tax
Each individual and corporation who is a member of an electing PTE is entitled to a credit against income tax. The credit will be equal to the taxpayer’s direct and indirect pro rata share of tax paid by the PTE. If the amount of the credit exceeds the taxpayer’s liability, the taxpayer will be paid a refund equal to the amount of the unused credit.
Ch. 239 (H.B. 317), Laws 2021, effective April 15, 2021 retroactive to Jan. 1, 2021.
Sales and use tax: Taxpayer failed to establish its claim to temporary storage exemption
The Appellate Court of Illinois (Court) affirmed the Independent Tax Tribunal’s (tax tribunal’s) decision holding that temporary storage sales and use tax exemption did not apply to a taxpayer’s unused, or “virgin,” cleaning solvent. In this matter, the taxpayer argued that the tax tribunal erred in concluding that the temporary storage exemption did not apply to its virgin solvent, as the solvent was used outside of Illinois and returned in-state as an entirely different product. Therefore, according to the taxpayer, the virgin solvent was only temporarily stored once in Illinois, and a previous case law relied upon by the tax tribunal in taxpayer’s claim to the exemption was misapplied to its case.
However, it was noted that the facts of the taxpayer’s case were identical to the case law relied upon by the tax tribunal and, therefore, the Court’s holding in that case was applicable to the taxpayer’s case. Specifically, regardless of the changes that the virgin solvent underwent when it was used, that same solvent was nonetheless capable of undergoing multiple rounds of recycling and reuse as cleaning solvent and, therefore, retained its capability of doing the same functions. Moreover, the taxpayer failed to provide any evidence to show how much of its used solvent was never used as recycled solvent, or that this unrecycled used solvent was ever identified, separated out, or measured throughout the recycling process. For these reasons, it was concluded that the taxpayer failed to meet its burden of proving the right to exemption.
Safety-Kleen Systems, Inc. v. The Department of Revenue, Appellate Court of Illinois, First District, No. 1-19-1078, April 28, 2020, released April 2021.
Corporate, personal income taxes: Senate passes elective pass-through entity tax bill
The Illinois Senate passed a bill that would allow S corporations and partnerships an election to pay a pass-through entity tax on income received in the state.
S.B. 2531, as passed by the Illinois Senate on April 21, 2021.
Corporate, personal income taxes: IRC conformity updated
- Updated its income tax conformity date to March 31, 2021.
- Enacted addbacks, deductions, and recomputation provisions in order to decouple from certain federal tax provisions.
- Updated the state unemployment insurance deduction.
The changes to the IRC and income computation are retroactive to Jan. 1, 2021. The unemployment compensation change is retroactive to Jan. 1, 2020.
The definition of “Internal Revenue Code” for adjusted gross income is the Internal Revenue Code of 1986 as amended and in effect on March 31, 2021, previously Jan. 1, 2020.
Further, in the case of an amendment to a federal statute that’s made outside of Title 26 of the United States Code and affects federal adjusted gross income, federal taxable income, federal tax credits, or other federal tax attributes, the federal statute will now be considered to be part of the Internal Revenue Code as amended and in effect on March 31, 2021.
Personal income adjustments
Personal income taxpayers will now:
- For tax year 2020, add an amount of for the deduction claimed under IRC Sec. 62(a)(22).
- For tax years beginning after Dec. 31, 2019, for payments made by an employer under an education assistance program after March 27, 2020, the taxpayer must add the amount of payments that are excluded from the taxpayer’s federal gross income under IRC Sec. 127(c)(1)(B) and deduct the interest allowable under IRC Sec. 221, if the disallowance under IRC Sec. 221(e)(1) did not apply to the payments.
- Add an amount equal to the remainder of: the amount allowable as a deduction under IRC Sec. 274(n), minus the amount otherwise allowable as a deduction under IRC Sec. 274(n), as if IRC Sec. 274(n)(2)(D) was not in effect for amounts paid or incurred after Dec. 31, 2020.
- For taxable years beginning after Dec. 31, 2017, and before Jan. 1, 2021, add an amount equal to the excess business loss of the taxpayer described in IRC Sec. 461(l)(3) and make other adjustments based on when property is placed in service.
- Add an amount equal to the amount excluded from federal gross income under IRC Sec. 108(f)(5), if an amount excluded under IRC Sec. 108(f)(5) would be excludible under IRC Sec. 108(a)(1)(B), the exclusion under IRC Sec. 108(a)(1)(B) will take precedence.
- For taxable years ending after March 12, 2020, subtract an amount equal to the deduction disallowed pursuant to Section 2301(e) of the CARES Act regarding employee retention and IRC Sec. 3134(e).
- Subtract the amount of an annual grant amount distributed to a taxpayer’s Indiana education scholarship account that’s used for a qualified expense, to the extent the distribution used for the qualified expense is included in the taxpayer’s federal adjusted gross income.
An Indiana net operating loss equals the sum of:
- The federal NOL under IRC Sec. 172, as adjusted under Indiana law, and for individuals, reduced by any deductions allowed in determining the federal NOL for the tax year, but not allowed in determining federal adjusted gross income.
- The excess business loss deduction.
- For tax years after December 31, 2020 (previously 2017), a loss for a tax year disallowed under IRC Sec. 461(l).
Corporate income adjustments
Corporate income taxpayers will now:
- Add an amount equal to the remainder of: the amount allowable as a deduction under IRC Sec. 274(n), minus the amount otherwise allowable as a deduction under IRC Sec. 274(n), as if IRC Sec. 274(n)(2)(D) was not in effect for amounts paid or incurred after December 31, 2020.
- Subtract, for taxable years ending after March 12, 2020, an amount equal to the deduction disallowed under Section 2301(e) of the CARES Act regarding employee retention and (B) IRC Sec. 3134(e).
An Indiana net operating loss equals the sum of:
- The federal NOL under IRC Sec. 172, as adjusted under Indiana law.
- The excess business loss deduction incurred from Indiana sources.
- For tax years after Dec. 31, 2020 (previously 2017), a loss for a tax year disallowed under IRC Sec. 461(l) and incurred from Indiana sources.
Unemployment insurance deduction
The law makes changes to the state income tax deduction for unemployment compensation. The computation of the unemployment compensation deduction is changed to include the unemployment compensation excluded from the federal adjusted gross income under the American Rescue Plan Act of 2021.
P.L. 165 (H .B. 1001), Laws 2021, effective as noted above.
Sales and use tax: Marketplace facilitators required to collect tax; click-through nexus repealed
The Kansas legislature has overridden the Governor Laura Kelly’s veto and enacted legislation to require certain marketplace facilitators to collect and remit sales tax. In addition, click-through nexus provisions have been repealed.
Beginning July 1, 2021, a marketplace facilitator with annual gross receipts from sales sourced to Kansas in excess of $100,000, must collect and remit sales tax. Any marketplace facilitator who meets the $100,000 threshold for the first time in the current calendar year must collect tax on cumulative gross receipts from sales into the state in excess of $100,000 during the current calendar year.
The department may waive the collection requirements if the marketplace facilitator shows that substantially all of its marketplace sellers are already collecting and remitting taxes. Marketplace facilitators may contract with a marketplace seller to have the seller remit all applicable taxes, as long as the seller: (i) has annual gross sales in the United States of over $1.0 billion; (ii) is registered with the department; and (iii) notifies the department that the marketplace seller will collect and remit taxes.
Beginning April 1, 2022, a marketplace facilitator that’s obligated to collect sales tax, is also required to collect and remit prepaid wireless 911 fees.
For sales tax purposes, an out-of-state retailer is considered to be doing business in Kansas if it:
- For the period of Jan. 1, 2021 through June 30, 2021, the retailer had in excess of $100,000 of cumulative gross receipts from sales to customers in the state.
- During the current or immediately preceding year, the retailer had in excess of $100,000 of cumulative gross receipts from sales to in-state customers.
The tax collection obligations of the out-of-state retailer meeting these conditions begins July 1, 2021. Any retailer who meets the $100,000 threshold for the first time in the current calendar year must collect tax on cumulative gross receipts from sales into the state in excess of $100,000 during the current calendar year.
S.B. 50, Laws 2021, effective upon publication in statute book.
Corporate, personal income taxes: Business interest expense, GILTI, and other adjustments enacted
The Kansas Legislature voted to override the governor’s veto of legislation that:
- Changes the corporate income tax return filing deadline.
- Contains various corporate and personal income tax adjustments to taxable income.
- Extends the net operating loss (NOL) carryforward period for corporate income taxpayers.
- Increases the standard personal income tax deduction.
Return filing deadline
Effective for tax years after 2019, corporate income taxpayers must file a Kansas return no later than 1 month after the original or extended deadline for the taxpayer’s federal return. Kansas will not impose a late filing penalty on taxpayers who file by the new deadline.
Business interest expense deduction
Effective for tax years beginning after 2017, IRC Sec. 163(j) limits the business interest expense deduction for the tax year to:
- The taxpayer’s business interest
- 30% of the taxpayer’s adjusted taxable income (ATI)
- The taxpayer’s floor planning financing interest
The ATI limit is 50% for the 2019 and 2020 tax years. Taxpayers can carryforward the amount that’s not deductible indefinitely to later tax years.
Effective for tax years beginning after 2020, Kansas requires a corporation and personal income tax addition to taxable income for the amount of a taxpayer’s business interest expense carryforward deduction. It allows a subtraction from taxable income for the amount of business interest expenses disallowed as a deduction. The adjustments apply to the federal deduction under IRC Sec. 163(j) in effect on Jan. 1, 2018.
Global intangible low-taxed income (GILTI)
IRC Sec. 951A requires U.S. shareholders of any controlled foreign corporations (CFC) to include its GILTI in gross income for the tax year. IRC Sec. 250 allows taxpayers to deduct part of that income on their federal return.
Effective for tax years beginning after 2020, Kansas allows a corporation and personal income tax subtraction from taxable income for 100% of GILTI. The subtraction can’t include the IRC Sec. 250 deduction.
Kansas also requires a corporate income tax addition to federal taxable income for the IRC Sec. 250 deduction.
Business meal expenses
IRC Sec. 274 limits the federal deduction for most business meal expenses to 50% of those expenses for tax years after 2017. There is an exception for business meals provided by restaurants in 2021 and 2022. Taxpayers can deduct 100% of those expenses.
Effective for tax years beginning after 2020, Kansas allows a corporation and personal income tax subtraction from taxable income for business meal expenses subject to the 50% federal limit.
Effective after Dec. 22, 2017, the federal exemption under IRC Sec. 118 for contributions to a corporation’s capital doesn’t include contributions by any:
- Government entity
- Civic union, subject to certain exceptions
Effective for tax years beginning after 2020, Kansas adopts the federal exemption in effect on Dec. 21, 2017.
IRC Sec. 965 repatriation income
Kansas allows a deduction by corporate income taxpayers for part of the dividends received from corporations incorporated outside the United States. The term “dividends” includes IRC Sec. 965 repatriation income.
Effective for tax years beginning after 2020, the Kansas dividends received deduction doesn’t apply to:
- The federal deduction allowed under IRC Sec. 965(c)
- The IRC Sec. 250 deduction
Federal Deposit Insurance Corporation (FDIC) premiums
Effective for tax years after 2017, IRC Sec. 162(r) limits the federal deduction of FDIC premiums paid by banks and other financial institutions with over $10 billion in consolidated assets. Effective for tax years after 2020, Kansas allows a corporate income tax deduction for the amount disallowed as a federal deduction.
NOL carryforward period
Kansas permits a NOL deduction by corporate income taxpayers based on IRC Sec. 172. It no longer allows a NOL deduction by personal income taxpayers.
Corporate income taxpayers can carryforward NOLs for up to:
- 10 tax years for NOLs incurred in tax years before Jan. 1, 2018.
- indefinitely for NOLs incurred in tax years beginning after Dec.31, 2017.
Effective for tax years beginning after 2020, individual income taxpayers can elect to claim a Kansas expensing deduction. It is the same expensing deduction that Kansas currently allows corporate income taxpayers. The Kansas expensing deduction applies to:
- Tangible property eligible for depreciation under the IRC Sec. 168 modified accelerated cost recovery system
- IRC Sec. 197 computer software to which IRC Sec. 167 applies
All taxpayers claiming the Kansas expensing deduction must offset the amount of the IRC Sec. 179 expensing deduction, effective for tax years beginning after 2020.
Standard and itemized deductions
Effective for tax years beginning after 2020, Kansas increases the standard personal income tax deduction from:
- $3,000 to $3,500 for single taxpayers
- $5,500 to $6,000 for heads of households
- $7,500 to $8,000 for married taxpayers filing jointly
Individuals can also claim Kansas itemized deductions instead of the standard deduction, even if the taxpayer doesn’t claim federal itemized deductions.
Unemployment compensation fraud
Taxpayers who are victims of identity theft do not owe Kansas individual income tax on unemployment compensation fraudulently obtained by another individual.
S.B. 50, Laws 2021, effective July 1, 2021 and as noted.
Corporate income tax: Double-weighted sales factor enacted
Montana enacted a law changing the corporate income tax apportionment formula from an equally weighted three-factor formula (property, payroll, and receipts) to a formula with a double-weighted receipts factor.
The change applies to tax years beginning after June 30, 2021.
S.B. 376, Laws 2021, applicable as noted.
Personal income tax: Protest against personal income tax on work outside city sustained
For Ohio tax purposes, the city of Massillon erred in assessing personal income tax on a taxpayer’s work performed outside the city. In this matter, the taxpayer resided outside the city and worked for the U.S. Postal Service in Massillon. She filed a municipal income tax return with Massillon, claiming only 40% of her wages were taxable to the city. The city issued an assessment for underpayment. However, the taxpayer argued that the city was not permitted to tax her on the 60% of income earned outside the city.
Upon review, it was noted that the city was authorized to impose a tax on the income earned within the city. The city relied on an “occasional entrant” rule that did not define an employee’s income tax liability, only their duty to withhold. Moreover, the applicable statute expressly limited the city to taxing income earned for work done “in the municipal corporation”. Lastly, it was noted that the city’s interpretation of the statute would expand the definition of income to work performed outside the city. Accordingly, the taxpayer’s protest was sustained.
Jones v. City of Massillon, Ohio Board of Tax Appeals, No. 2018-2137, March 29, 2021.
Income tax: Taxpayer properly subject to commercial activity tax assessment
A combined group (taxpayer) that sanctions stock car auto racing events was properly subject to commercial activity tax assessment as the taxpayer’s proposed methodology failed to situs its intangible receipts to the state in the proportion to the purchaser’s benefit in the state compared to its benefit everywhere. Generally, gross receipts from the sale, exchange, disposition, or other grant of the right to use trademarks, trade names, patents, copyrights, and similar intellectual property are sitused to Ohio to the extent that the receipts are based on the amount of use of the property in the state. If the receipts are not based on the amount of use of the property, but rather on the right to use the property, and the payor has the right to use the property in this state, then the receipts from the sale, exchange, disposition, or other grant of the right to use such property is sitused to the state to the extent the receipts are based on the right to use the property in this state.
In this matter, the taxpayer asserted that the Tax Commissioner of Ohio (commissioner) should have deferred to its situsing methodology, which attributed receipts from the sale and licensing of its intellectual property to Florida because it was uniform, consistent, and reasonable. However, the commissioner argued that this methodology would allow the taxpayer to escape taxation on any of its receipts because it granted the purchasers of its broadcast receipts, media revenue, license fees, and sponsor fees a nondivisible right to use the intellectual property throughout a wider territory and not to Ohio specifically. Further, the commissioner asserted that the taxpayer’s argument ignores the fact that Ohio is included in the territory and that the purchasers of these rights obtained the right to use the intellectual property in this state.
Upon review, it was noted that the taxpayer’s situsing focused on the benefit that it received and the location where it received such benefit rather than the purchaser’s use, or right to use. Moreover, the taxpayer failed to show that the commissioner abused his discretion with regard to the assessed penalty amount. Accordingly, the taxpayer’s protest was denied. NASCAR Holdings, Inc. v. Tax Commissioner of Ohio, Ohio Board of Tax Appeals, No. 2015-263, April 5, 2021.
Sales and use tax: Certain corporate transfers are exempt
Transfers of tangible personal property between wholly owned subsidiaries of a parent company and between a parent company and its wholly owned subsidiary, are exempt from Oklahoma sales tax.
H.B. 1060, Laws 2021, effective Nov. 1, 2021.
Corporate, personal income taxes: IRC conformity updated
South Carolina has updated its Internal Revenue Code conformity date from Dec. 31, 2019 to Dec. 31, 2020.
If there are IRC sections adopted by South Carolina that expired on Dec. 31, 2020, and are extended, but not amended, by congressional enactment during 2021, then those sections are also extended for South Carolina income tax purposes.
To the extent that loans are forgiven and excluded from gross income for federal income tax purposes under the Paycheck Protection Program (PPP), or from any extension of the program, those loans are also excluded for South Carolina income tax purposes. In addition, to the extent that the federal government allows the deduction of expenses associated with the forgiven PPP loans, the expenses will also be allowed as a deduction for South Carolina income tax purposes.
For tax year 2020, South Carolina specifically adopts the amendment in the American Rescue Plan Act of 2021 relating to the exclusion from taxable income of $10,200 of unemployment compensation for a taxpayer with less than $150,000 in federal adjusted gross income.
Federal provisions not followed
Certain provisions of the CARES Act and the Consolidated Appropriations Act, 2021 are specifically not adopted by South Carolina, including: IRC Sec. 62(a)(22) relating to the $300 charitable deduction allowed in 2020 for persons who claim the standard deduction; IRC Sec. 172(a) relating to the modification of the income limitations allowed for the use of net operating losses in tax years 2018, 2019, and 2020; IRC Sec. 461(l) relating to the modification of the limitation on losses allowed for noncorporate taxpayers in tax years 2018, 2019, and 2020; and IRC Sec. 274(n) relating to the temporary allowance of the full business deduction for business meals that are paid or incurred after Dec. 30, 2020, and before Jan. 1, 2023.
Corporate, personal income taxes: Entity-level tax election enacted
South Carolina enacted a law allowing qualified pass-through entities an annual election to pay taxes on active trade or business income at the entity level at a rate of 3%, applicable to tax years beginning after 2020.
For tax years beginning after 2021, an electing qualified entity is required to make estimated tax payments.
S.B. 627, Laws 2021, effective May 17, 2021, applicable as noted.
Corporate income tax: Texas exempts forgiven PPP loans and other COVID-19-related grants from franchise tax
Businesses will not have to pay Texas franchise tax on forgiven PPP loan amounts and other COVID-19-related grant proceeds. They may exclude qualifying loan and grant proceeds from total revenue on franchise tax reports originally due on or after Jan. 1, 2021.
Qualifying loan and grant proceeds
Proceeds from the following may be excluded, if excluded from income for federal tax purposes:
- A loan or grant under the under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136), as amended by the Paycheck Protection Program Flexibility Act of 2020 (116-142), the Consolidated Appropriations Act, 2021 (P.L. 116-260), the American Rescue Plan Act of 2021 (P.L. 117-2), and the PPP Extension Act of 2021 (P.L. 117-6)
- A shuttered venue operator grant under the Consolidated Appropriations Act, 2021, as amended by the American Rescue Plan Act of 2021
- Microloan program recovery assistance under the Consolidated Appropriations Act, 2021
- A grant from the Restaurant Revitalization Fund established under the American Rescue Plan Act of 2021.
Deductions for expenses paid for with loan or grant proceeds
Businesses may include other deductible expenses paid for with qualifying loan or grant proceeds when determining their deductions for:
- Cost of goods sold
H.B. 1195, Laws 2021, effective May 8, 2021, and applicable as noted.
Washington enacts capital gains tax
Washington has enacted a 7% excise tax on long-term capital gains over $250,000 from sales of stocks, bonds, and certain other capital assets. The tax, which will be imposed beginning Jan. 1, 2022, applies only to individuals.
The law includes exemptions for:
- Real estate
- Certain interests in a privately held entity to the extent any long-term capital gain or loss is directly attributable to the real estate owned directly by the entity
- Retirement accounts
- Assets transferred as part of a condemnation proceeding
- Livestock related to farming or ranching
- Certain property used in a trade or business such as machinery and equipment that have been immediately expensed
- Capital assets acquired and used only for purposes of a trade or business of a sole proprietorship
- Timber and timberlands
- Commercial fishing privileges
- Goodwill received from the sale of a franchised auto dealership
Generally, long-term capital gains or losses from the sale or exchange of tangible personal property are allocated to Washington if the property was located in the state at the time of the sale or exchange. Long-term capital gains or losses derived from intangible personal property are allocated to Washington if the taxpayer was domiciled in the state when the sale or exchange occurred.
The law provides a deduction for the sale of substantially all of a qualified family-owned small business.
A deduction is also allowed (capped at $100,000) for the amount of charitable donations made by the taxpayer to qualified organizations in excess of $250,000.
A credit is allowed against the business and occupation tax for any capital gains tax owed on the sale or exchange of a capital asset.
Returns and annual adjustments
The annual return for the capital gains tax must be filed by the due date of the taxpayer’s federal income tax return for the taxable year.
Certain amounts (e.g., the $250,000 exclusion) will be adjusted for inflation beginning with taxes due in 2024.
S.B. 5096, Laws 2021, applicable as noted; Final Bill Report, Washington State Senate.
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