State and local tax news for February 2024

Several state courts and tax tribunals issued decisions in recent weeks, covering a wide variety of state and local tax issues. The District of Columbia Court of Appeals held that a corporation was not entitled to receive a corporate franchise tax exemption as a qualified high-technology company because it had an office located in a ballpark area within the District that was excluded from the exemption. The New Mexico Supreme Court determined that a safe harbor from gross receipts tax did not apply to a taxpayer that failed to accept a resale certificate in good faith. In New York, the Tax Tribunal held that every member of a combined group must be a qualified emerging technology company in order for the group to receive the lower corporation franchise tax rate. The Oregon Tax Court considered the proper apportionment of income of a group of corporations filing a consolidated return that included captive insurance companies. Finally, the Washington Supreme Court held that a taxpayer operating a country club could fully deduct bona fide initiation fees for purposes of the Business & Occupation tax. Our February summary of SALT developments discusses each of these decisions. 

District of Columbia court affirms QHTC tax exemption not applicable

On Feb. 8, 2024, the District of Columbia Court of Appeals held in Booz Allen Hamilton Inc. v. District of Columbia Office of Tax and Revenue that a taxpayer was not eligible for the qualified high-technology company (QHTC) exclusion from corporate franchise tax because it had an office located in the ballpark area of the District.

During the relevant tax years, QHTCs were granted various tax benefits, including a temporary exemption from the District’s corporate franchise tax. In 2004, the District enacted legislation that amended the QHTC definition as part of a mechanism to fund a new baseball stadium for the Washington Nationals. The law designated a specific area around the site of the new stadium as a ballpark area and excluded any business entity located in the area from qualifying as a QHTC. Increased sales and real property taxes generated from locations within the ballpark area were allocated to a community benefit fund (CBF). Corporate franchise taxes were not allocated to the CBF.

The taxpayer, Booz Allen Hamilton Inc. (BAH), a Virginia-based private corporation, provides management, technology, consulting, and engineering services. BAH operated several offices in the District, including a main office located outside the ballpark area, and one office within the ballpark area with nearly 200 employees. Between 6.9% and 40% of BAH’s total District gross revenue was attributable to the ballpark area location. BAH filed refund requests claiming a QHTC corporate franchise tax exemption for the 2013-2015 tax years. The District’s Office of Tax and Revenue (OTR) denied the refund requests because BAH was not a QHTC due to the ballpark area exclusion. BAH requested a review before the District’s Office of Administrative Hearings (OAH), which upheld OTR’s denial of the refund requests. Following the OAH review, BAH appealed to the District of Columbia Court of Appeals.

In affirming the OAH, the appellate court rejected BAH’s argument that the ballpark area exclusion did not apply to the corporate franchise tax benefits granted to QHTCs. After considering the statutory language, the court determined that BAH would not be entitled to franchise tax benefits if it were “a business entity located in” the ballpark area. BAH argued that the ballpark legislation did not specifically refer to the franchise tax benefits, but the court explained that this reference was not necessary because the statute expressly excluded business entities located in the ballpark area from the definition of a QHTC. The court also rejected BAH’s argument that the legislative history did not support the elimination of franchise tax benefits for QHTCs located in the ballpark area, and that it would be “absurd” to interpret the ballpark exclusion to apply to franchise tax benefits.

The court held that BAH was subject to the corporate franchise tax because it was “a business entity located in” the ballpark area. OTR successfully argued that BAH was located in the ballpark area because BAH leased one office in the area where numerous BAH employees worked. BAH was unable to persuade the court that merely having an office in the ballpark area did not mean that BAH “as a whole” was located in the ballpark area. The court determined that the ordinary and legal usage of “located” supported OTR’s argument because BAH had one office in the area. 

After determining that OTR’s interpretation gave the term “located” a consistent, natural and common meaning, the court noted that BAH’s alternative interpretation of the term “located” was not clear or consistent. At times, BAH seemed to argue that each business entity has only one location, which BAH suggested should be the entity’s principal place of business. At other times, BAH acknowledged that a business entity may have at least two locations: the entity’s place of incorporation and the entity’s principal place of business. BAH also suggested that a business entity would be located in the ballpark area, even if its place of incorporation and principal place of business were located elsewhere, as long as the office in the ballpark area was the entity’s principal of business in the District. The court explained that BAH’s interpretations were not supported by the statute or common meaning of “located” and could produce unintentional results.

The court held that OTR correctly determined that BAH was “located in” the ballpark area because BAH had an office in the area with a substantial number of employees. Also, the court rejected BAH’s argument that it should be required to pay only the portion of franchise tax attributable to its activities within the ballpark area. The court determined that there were no exceptional and extraordinary circumstances to support this type of adjustment. Likewise, the court rejected BAH’s contention that it was unfairly surprised by an unforeseeable interpretation of the statute. The decision provides an example of how a narrow interpretation of the scope of an exemption can prove challenging for taxpayers that would otherwise be eligible for significant tax benefits.

New Mexico resale certificate not accepted in good faith  

On Jan. 16, 2024, the New Mexico Supreme Court held in CCA of Tennessee, LLC v. New Mexico Taxation and Revenue Department that a taxpayer did not accept in good faith a nontaxable transaction certificate (NTTC) and therefore was not entitled to safe harbor protection from the payment of gross receipts tax. The court determined that the plain meaning of “good faith” as used in the gross receipts tax statute requires an objective analysis based on the facts and circumstances known to the seller of the licenses or services.

The taxpayer, CCA of Tennessee, LLC (CCA), owned and operated a detention facility in Torrance County, New Mexico. CCA held inmates at the detention center under a contract it executed with the county in 2010. The county previously, in 2002, separately contracted with the U.S. Marshals Service to house federal prisoners. CCA agreed to fulfill the county’s obligation to the Marshals Service to house federal prisoners at the detention center. Accordingly, CCA directly received payments from the Marshals Service for housing federal prisoners.

CCA sought a refund of gross receipts from the New Mexico Department of Revenue from 2010-2012 on the gross receipts it received from the Marshals Service. To secure the refund, CCA needed the Department to issue an NTTC to the county, which the county would then execute with CCA. In correspondence with the Department, CCA clarified that the NTTC related to the portion of county receipts derived from housing federal prisoners. CCA stated the receipts were not coming directly from the Marshals Service, but CCA subsequently conceded that this was a misstatement. In reliance on CCA’s assertion that the receipts were not coming directly from the Marshals Service, the Department informed CCA that it could accept an NTTC for the receipts from housing the federal inmates. After the Department issued the requested NTTC, the county executed an NTTC to CCA in August 2013 for the gross receipts from CCA’s sale of a license for housing federal prisoners at the detention center. CCA filed the tax refund asserting it was entitled to a deduction for the sale of a license to the county to use the detention center, which the county resold to the Marshals Service to house federal prisoners. In April 2014, CCA received the requested refund.

The Department conducted an audit of CCA and concluded that it was not entitled to the refund it had received from gross receipts tax paid on the 2010-2012 receipts from the Marshals Service and that it was liable for gross receipts tax. In response to CCA’s protest of the audit, an administrative hearing officer for the Department concluded that CCA, as the seller, did not in good faith accept the NTTC, executed by the county as buyer, and therefore was not entitled to the deduction from gross receipts for housing federal prisoners. In reversing the hearing officer, the New Mexico Court of Appeals held that CCA was entitled to safe harbor protection in the absence of evidence that CCA did not accept the NTTC from the county in good faith. The New Mexico Supreme Court granted the Department’s request to consider the case.

The supreme court reversed the appellate court and agreed with the hearing officer that CCA was not entitled to safe harbor protection because it did not accept the NTTC in good faith. New Mexico law provides in relevant part that when a seller or lessor accepts a properly executed NTTC “in good faith that the buyer or lessee will employ the property or service transferred in a nontaxable manner,” the NTTC is “conclusive evidence” the proceeds from the transaction can be deducted from the seller’s or lessor’s gross receipts. After reviewing regulations and case law, the court decided the plain meaning of “good faith” includes the facts and circumstances reasonably known to the seller when it accepts an NTTC. Decisions from the Missouri Supreme Court interpreting similar safe harbor provisions provided additional support that the plain meaning of “good faith” requires an objective analysis based on the facts and circumstances known to the seller.

As summarized by the court, the good faith standard in the safe harbor provision protects sellers from tax liability when buyers do not use goods or services in the intended manner. However, the safe harbor does not protect a seller who is fully aware the goods or services it sells are not being utilized by the buyer in the same manner justifying the NTTC. This is an objective standard, based on the facts and circumstances reasonably known to the taxpayer at the time of the transaction. The safe harbor relies on the ordinary meaning of “good faith,” which is simply expressed as honesty in belief or purpose.

The court held that CCA was not entitled to the safe harbor protection because it did not, on the facts and circumstances known to it, accept the NTTC in good faith. CCA failed to meet this standard because it knew that: (i) there was no resale of services or a license because it was directly billing the Marshals Service; (ii) the Marshals Service was paying CCA directly; and (iii) the Department relied on CCA’s misstatement in issuing the NTTC. This decision clarifies the “good faith” standard that should be applied and shows the importance of sellers complying with this standard. 

New York Tax Tribunal explains QETC combined group standards

On Jan. 25, 2024, the New York State Tax Appeals Tribunal held in Charter Communications, Inc. that under the statutes in effect for the 2012-2014 tax years, all members of a combined group must be a qualified emerging technology company (QETC) in order for the group to be considered a QETC eligible to be taxed at a lower rate for corporation franchise tax purposes. The Tribunal also rejected the taxpayers’ arguments that individual members of the group that qualified as QETCs should receive the benefit of the favorable tax rate.    

The taxpayers were a unitary affiliated group of companies based in New York City that were among the largest providers in the U.S. of video, high-speed data, and digital voice services to both residential and business customers. During the 2012-2014 tax years at issue, the taxpayers had thousands of employees and billions of dollars of property located in New York State. The taxpayers’ receipts from the sale of their qualified emerging technology products and services constituted at least 97% of their total revenue for each of the years at issue. The New York State Division of Taxation concluded that some members of the taxpayers’ combined group were not QETCs because they were located outside New York State. Therefore, the Division concluded the combined group did not meet the requirements to be considered a QETC. The Division issued a notice of deficiency, imposing additional tax for the years at issue of nearly $6 million and interest of nearly $2 million. The taxpayers appealed this assessment to the New York Tax Tribunal.

At the Tax Tribunal, the Administrative Law Judge (ALJ) analyzed the relevant statutory language to determine whether the taxpayers’ combined group should be treated as a QETC and therefore qualify for a lower tax rate. According to the ALJ, the combined group failed to qualify for the lower tax rate because some of the members did not meet the QETC definition. The ALJ noted the absence of any law expressly providing that a combined group could be considered in the aggregate in determining whether it meets the definition of a QETC. In contrast, New York law expressly provided that a combined group that is a manufacturer may be deemed a qualified New York manufacturer provided the combined group, considered as a whole, meets the requirements. Furthermore, the ALJ rejected the taxpayers’ argument that, if a combined group does not qualify as a QETC, the Division should apply the reduced tax rate to the members that qualified as QETCs. The ALJ also concluded that the Division of Tax Appeals lacked jurisdiction to consider the constitutional challenge that the statute on its face violated the Commerce Clause.

In affirming the ALJ, the Tribunal agreed that the taxpayers’ combined group did not qualify as a QETC. The Tribunal reviewed the former statutes that applied to the tax years at issue. For the 2012-2014 tax years, the rate of tax on the entire net income base for most corporations was 7.1%. However, for the 2012 and 2013 tax years, a taxpayer that was a qualified New York manufacturer paid tax at a rate of 6.5%. The law provided two ways to be considered a qualified New York manufacturer: (i) as a manufacturer with New York property; or (ii) as a QETC. For the 2014 tax year, New York continued to provide lower tax rates for manufacturers and QETCs, but it used separate statutory provisions. The statute was amended to provide a tax rate of zero for a qualified New York manufacturer and delete the provision that defined a QETC as a qualified New York manufacturer. Another provision was amended to provide a rate of 5.9% for QETCs. The taxpayers sought the tax rate available to a qualified New York manufacturer as a QETC for the 2012 and 2013 tax years and the tax rate available to a QETC for the 2014 tax year.

The taxpayers unsuccessfully argued that, for the 2012 and 2013 tax years, the law expressly extended qualified New York manufacturer status to a combined group consisting of one or more QETCs where the combined group, considered as whole, met the QETC definition. The Tribunal concluded that the statute did not provide that a combined group may be treated as a QETC by considering the group in the aggregate. However, the Tribunal noted that the same statute provided for a combined group to be considered a manufacturer and therefore eligible to be a qualified New York manufacturer. Concluding that the legislative silence regarding QETCs was intentional, the Tribunal found the legislature chose to permit combined groups with some non-manufacturers to be treated as a whole and considered to be manufacturers. The Tribunal noted that the legislature did not extend a similar opportunity to combined groups with members that were not QETCs. Thus, the Tribunal agreed with the ALJ’s interpretation of the law to require all members of a combined group to be QETCs in order for the group to be considered a QETC.

The Tribunal reached the same conclusion for the 2014 tax year and denied the lower tax rate. Similar to the statute in effect for the 2012 and 2013 tax years, the statute as amended for the 2014 tax year contained no language regarding the circumstances under which a combined group may be considered a QETC. The Tribunal also rejected the taxpayers’ argument that there was an inconsistency in the use or meaning of the terms “taxpayer,” “combined group,” and “company” in the Tribunal’s interpretation of these provisions. In addition, the Tribunal disagreed with the taxpayers’ assertion that the term “taxpayer” as used in the statute includes a combined group.

The taxpayers also unsuccessfully argued that the members of their combined group that were QETCs should be allowed to compute their tax on their entire net income base at the reduced rate applicable to these companies on an individual basis. The Tribunal noted that this approach would be inconsistent with the combined reporting requirements and there was no statutory support for this argument. Finally, the Tribunal denied the taxpayers’ constitutional arguments because it did not have jurisdiction to consider a constitutional challenge to a statute on its face. The decision highlights the need for combined group taxpayers that have taken the QETC benefit to consider whether each member in their group has independently qualified as a QETC.

Oregon Tax Court considers apportionment of captive insurance income 

On Jan. 24, 2024, in Apple Inc. v. Department of Revenue, the Oregon Tax Court considered the proper apportionment of income for Apple Inc. and its two wholly owned insurance companies that sold or reinsured extended service plans for Apple’s products. The court concluded that the amounts paid by Oregon retail customers for the extended service plans were gross receipts of the insurance companies to the extent those companies were required to include the amounts paid in gross income under federal income tax law. Because the company providing reinsurance did not do business in Oregon, the premiums that it received were not included in the apportionment factor numerator. 

The three unitary taxpayers in this case were (i) Apple Inc., (ii) AppleCare Service Company, Inc.  (AppleCare), and (iii) Apple Insurance Company (Apple Insurance). The taxpayers were included in a consolidated federal income tax return and consolidated Oregon corporation excise tax return for the tax year ending on Sept. 27, 2014, that was at issue. Apple Inc., the common parent corporation, sold computers and communications devices as well as extended service plans that were provided by AppleCare. In turn, AppleCare forwarded 95% of its premiums to Apple Insurance to reinsure 95% of the risk. Apple Insurance was an Arizona corporation that did not do business in Oregon. Both entities were “insurance companies” under federal law but were not treated as insurers for Oregon tax purposes.

The Oregon Department of Revenue assessed an income tax deficiency, asserting that the Oregon corporation excise tax return understated the amount of sales attributable to Oregon, thus understating Oregon’s apportioned share of the overall taxable income. The taxpayers included the income of both AppleCare and Apple Insurance on the consolidated Oregon return. According to the Department, the taxpayer should have included the full amount paid by retail customers for extended service plans covering devices sold in Oregon in the numerator of the apportionment fraction. The taxpayers filed a motion for partial summary judgment with the Oregon Tax Court, requesting the court to conclude that the numerator of the apportionment factor should exclude at least 95% of gross receipts paid by retail customers for the service plans. The Department filed a cross-motion for summary judgment and argued that the numerator of the sales factor must include all gross receipts from Oregon purchasers of extended service contracts.

In granting the taxpayers’ partial motion for summary judgment, the court first considered the items that should be included in gross receipts. The court determined that the amounts paid by Oregon retail customers for the service plans were gross receipts of Apple Care and Apple Insurance to the extent those companies were required to include the amounts paid in gross income under federal tax law. Also, the court concluded that AppleCare, rather than Apple Inc., had gross receipts from sales of the service plans to retail customers because Apple Inc. acted as its agent. Finally, the court determined that AppleCare’s gross receipts, for Oregon apportionment purposes, did not include the 95% of premiums that were transferred to Apple Insurance for reinsurance. Under federal law, insurance companies are instructed to deduct premiums paid for reinsurance. Federal law also required the transferred premiums to be included in Apple Insurance’s gross income.

The court concluded that the premiums Apple Insurance received as a reinsurer from AppleCare were not included in the sales factor on the Oregon consolidated returns filed by Apple Inc. Because Oregon follows the Joyce position, each member of an affiliated group must be treated as a separate corporation for purposes of determining whether it is subject to Oregon tax, and apportioning its income. Because Oregon lacked jurisdiction to tax Apple Insurance, the 95% of plan premiums transferred by AppleCare to Apple Insurance could not be counted in the numerator of the consolidated Oregon return. In determining that Oregon did not have jurisdiction to tax Apple Insurance, the court considered the relationships between the three entities. The court rejected the Department’s theory that Apple Insurance became subject to Oregon’s taxing jurisdiction because its contract to reinsure AppleCare’s plans amounted to having AppleCare as an in-state agent. Furthermore, the court disagreed with the Department’s theory that Apple Insurance was subject to Oregon’s taxing jurisdiction because it used Apple Inc. as an agent.

The Department’s alternative argument that it could use its statutory authority to distribute, apportion or allocate income to prevent evasion of taxes or clearly reflect income also was rejected by the court. According to the court, there was a valid, non-tax business purpose for forming Apple Insurance. Also, the taxpayers provided ample evidence that the relationship among them had economic substance. Finally, the court determined that even if the gross receipts of Apple Insurance generally were includible in the sales factor on the consolidated return, they would not be sourced to Oregon and included in the sales factor numerator. This thorough opinion should provide useful guidance to taxpayers in Oregon and other states that follow similar policy. Taxpayers should be cautious, however, because the opinion concerns the 2014 tax year and changes to Oregon tax law in intervening years potentially could change portions of the analysis as applied to current filings.   

Washington Supreme Court affirms initiation fee deduction        

On Jan. 11, 2024, the Washington Supreme Court held in Royal Oaks Country Club v. Washington Department of Revenue that a taxpayer operating a country club could fully deduct bona fide initiation fees for purposes of the Business & Occupation (B&O) tax. The fees were paid solely for the privilege of membership and did not include any amount paid for receiving goods or services.

The taxpayer was a nonprofit corporation that owned and operated a country club in Vancouver, Washington. In addition to maintaining a golf course with accompanying practice ranges and a retail shop, the taxpayer operated swimming facilities, dining spaces, bars, and a fitness center. The taxpayer offered individual and corporate memberships at different levels. New members were required to pay a one-time initiation fee that was due with the membership application. Members needed to pay the initiation fee and their first month’s dues before accessing any facility, service, or social event at the country club. Initiation fees and monthly dues were tied to membership level.

Although the taxpayer had not historically sought a deduction for bona fide initiation fees, the taxpayer claimed the deduction in 2014. The Washington Department Revenue conducted an audit for the 2011-2016 tax periods. The auditor divided the taxpayer’s income into three categories: (i) dues; (ii) retail; and (iii) service. After placing the one-time initiation fees, monthly dues, and other types of income into the dues category, the auditor applied the “cost of production” method and calculated the deductible percentage of bona fide dues at approximately 65%.

The taxpayer sought administrative review of the assessment and argued that the initiation fees were “solely capital contributions” and completely deductible under Washington law. The hearing examiner affirmed the audit because the taxpayer failed to provide any contractual language indicating the nature of the initiation fees. On reconsideration, the taxpayer offered documentation on its initiation fees, but the tax review officer concluded that the documentation did not describe whether the fees were considered solely capital contributions. The taxpayer paid the assessment and filed a refund action in superior court. In granting the Department’s motion for summary judgment, the court ruled the initiation fees were only partially deductible. The Washington Court of Appeals held the initiation fees were wholly deductible under Washington law and reversed the superior court. The Department successfully petitioned the Washington Supreme Court for review.

The Washington Supreme Court explained that it was required to perform a de novo review because this case involved a question of statutory construction on whether the initiation fees were wholly deductible. A Washington statute provides a deduction from B&O tax for bona fide initiation fees and dues. However, if dues are paid for a “significant amount” of goods or services or if the dues are graduated based on the amount of goods or services rendered, the dues cannot be deducted. After considering the relevant definitions in the Washington regulations, the court explained that a bona fide initiation fee is a genuine fee paid for the act of formal initiation into an organization and does not include any amount paid for receiving goods or services. The Department argued that a portion of the initiation fees did not qualify for the exemption because it was for access to facilities. According to the Department, this part of the fee was not exempt because it interpreted “services” and “access” to be the same under the statute. In contrast, the taxpayer successfully argued that its initiation fees were distinct from dues, and the fees were bona fide admittance fees paid solely for the privilege of joining the club.  

In determining that all the initiation fees were deductible, the court separately considered each of the three relevant sentences in the statute. The first sentence provides a deduction in relevant part for bona fide initiation fees and dues. Because the statute uses separate terminology, initiation fees are not the same as dues. The initiation fees were tied to membership level, but no members could use any service or facility until they paid their initiation fee and first month’s dues. There was no indication that initiation fees were treated as anything other than a single admittance fee. The taxpayer did not seek an exemption for dues paid for services. The court held that the fees constituted bona fide initiation fees under the first sentence of the statute.

The court rejected the Department’s argument that the second sentence in the statute also demonstrated that “bona fide” precludes deducting fees that entitle access. Under the relevant language, “providing facilities or other services for which a special charge is made to members or others” does not exempt an entity from tax. The Department contended that the taxpayer’s graduated initiation fees and monthly dues were “special charges” assessed to members “upon providing facilities.” According to the Department, club members paid a surcharge on their initiation fees and dues for facility access. The court held that this argument equated initiation fees and dues, but the first sentence treats them separately. Also, there is a difference between “use” and “access.” The Washington Supreme Court agreed with the Court of Appeals that nothing in the record indicated that the one-time initiation fees were designed for anything other than club membership.

The Department unsuccessfully argued that the third sentence in the statute applied to initiation fees as well as dues. The third sentence provides the deduction does not apply to dues for a significant amount of goods or services or that are graduated upon the amount of goods or services received. The court held that this sentence does not apply to initiation fees. The Department offered three Washington cases for support, but the court rejected these cases because they only addressed the deductibility of dues. Furthermore, the court cited decisions from the Washington State Board of Tax Appeals supporting the distinction between dues and initiation fees. The court declined the Department’s invitation to conflate initiation fees and dues. In the context of an initiation fee, bona fide means the fee is for the privilege of membership. The taxpayer’s initiation fees provided membership privileges including access but not use of the facilities. Members paid separate dues to use the facilities. The Washington Supreme Court affirmed the Court of Appeals and remanded the case to the superior court to enter summary judgment for the taxpayer.