West Virginia: No Economic Nexus for ConAgra Intangibles

The West Virginia Supreme Court of Appeals held that the licensing of intangible trademarks and trade names by ConAgra into West Virginia did not subject ConAgra to corporate income tax.

In sustaining the opinion of the state circuit court, which overturned the Board of Tax Appeals finding in favor of the commissioner, West Virginia’s highest court made some interesting observations for students of economic nexus. The court’s ultimate holding was based on the determination that ConAgra, through its wholly-owned intangible holding corporation, did not engage in “purposeful direction” under the Due Process Clause or establish “significant economic presence” under the Commerce Clause by use of its trademarks and trade names in West Virginia.

The court arrived at that conclusion after making these interesting observations. The court did not overrule but rather chose to distinguish its holding in Tax Commissioner v. MBNA America Bank, 220 W.Va. 163, 640 S.E.2d 226 (2006), cert. denied, 551 U.S. 1141, 127 S.Ct. 2997, 168 L.Ed.2d 719 (2007), which held that MBNA America’s use of trademarks in West Virginia established income tax nexus. The court distinguished MBNA on the grounds that ConAgra did not engage in the same “systemic and continuous” direct mail and telephone solicitation in West Virginia that characterized MBNA’s activities there.

The court also distinguished its holding in a non-tax case decided under the Due Process Clause. In Hill v. Showa Denko, K.K., 188 W.Va. 654, 425 S.E.2d 609 (1992), cert. denied, 508 U.S. 908, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993), the West Virginia Supreme Court considered whether the activities of a Japanese company’s wholly-owned subsidiary established personal jurisdiction for the parent company in the state. The court determined that the subsidiary in Hill was a “shell corporation” controlled by the parent and enforced jurisdiction. The court distinguished ConAgra’s subsidiary, ConAgra Brands, which held the intangible assets, from the subsidiary in the Hill case. While not necessarily finding economic substance in ConAgra Brands, the West Virginia court held that it was “not a shell corporation created solely for tax avoidance purposes.”

Finally, the court distinguished the economic nexus theories established by other jurisdictions. It rejected South Carolina’s famous economic nexus analysis in Geoffrey, Inc. v. South Carolina Tax Commission, 437 S.E.2d 13 (S.C.), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993). It also denied application of the more recent economic nexus formulation set out in Iowa forth by KFC Corporation v. Iowa Department of Revenue, 792 N.W.2d 308 (Iowa 2010), cert. denied, _ U.S. _ , 132 S.Ct. 97, 181 L.Ed.2d 26 (2011).

Read the entire opinion here:
Commissioner v. ConAgra, No. 11-0252 (May 24, 2012)

District Court: Colorado Use Tax is Unconstitutional

In an unusual ruling from a U.S. District Court on a state tax matter, the U.S. District Court for the District of Colorado has struck down as unconstitutional a Colorado statute requiring out-of-state retailers to file information reports on sales made to Colorado customers for which no Colorado sales or use tax was collected. The District Court claimed jurisdiction to hear the claim under 28 USC 1331 (federal question) and gave standing to the Direct Marketing Association (DMA) on behalf of their members who businesses and organizations market products directly to consumers via catalogs, magazine and newspaper advertisements.

On motions for summary judgment, the DMA argued that the Colorado’s use tax reporting requirement discriminates against interstate commerce and places an undue burden on interstate commerce both of which violate the dormant commerce clause of the United State Constitution. The DMA sought a declaratory judgment finding that the Colorado statute was unconstitutional and an injunction preventing enforcement of the statute’s requirements.

The district court, in an order by Judge Blackburn, ruled in favor of the DMA on both claims finding that the Colorado act discriminated against interstate commerce and placed an undue burden on interstate commerce. The court granted both the declaratory and injunctive relief sought by the DMA.

Read the court’s order here:
Direct Marketing Assoc. v. Huber, No. 10-cv-10546-REB-CBS (D.C. Colo., March 30, 2012)

California Supreme Court: Employer Must Prove Qualified Employees to Receive Tax Credit

In a long-awaited decision affecting many large California employers and hundreds of millions of dollars of tax credits, the California Supreme Court reversed the Court of Appeal decision in Dicon Fiberoptics v. Franchise Tax Board, holding that the Franchise Tax Board (FTB) may require a taxpayer to establish that certain employees in specified enterprise zones are “qualified employees”, above and beyond the state’s certification process, in order to receive hiring incentive tax credits.

The Court of Appeal had held that the state-issued vouchers received by Dicon (and every other employer who participated in the enterprise zone tax credit program) were “prima facie” proof of a qualified employee and that the FTB had to establish that the employee was not eligible under the program before denying the employer the benefit of the associated tax credit. As a practical matter, the Court of Appeals case treated the state-issued certifications as conclusory evidence of the employee’s qualification. The Supreme Court reversed this crucial element of the Court of Appeal decision, thereby allowing the FTB to deny the credit where the only evidence of the employee’s qualification was the voucher and shifting the burden to the taxpayer to establish that the employee was otherwise qualified for the incentive tax credit.

Read the entire opinion here:
Dicon Fiberoptics v. Franchise Tax Board, No. S173860 (Ca. Sup. April 26, 2012)

New York Raises Rates on Highest Earners

The New York State Legislature, following the lead of Governor Andrew Coumo, may have toppled the domino in the trend to tax higher income earners at higher rates. The two agreed to a measure to increase state income tax rates to 8.82% on those reporting more than $2 million of annual income. Read the New York Times coverage here.

High net worth individuals have been under increased scrutiny by the IRS since the rebranding and reorganization of the Large & Mid Sized Business examination division over a year ago into Large Business & International. Notably the new LB&I organization increased the IRS’s emphasis on the activities of high net worth taxpayers here and abroad. (See the “Wealth Squad” IDR we shared here a few months ago).

Now the talk of increasing rates on America’s highest earners that started with Warren Buffett and William Gates, Sr has found another advocate in the governor and lawmakers of the great state of New York. Whether this is an effect of the Occupy Wall Street movement, a budget necessity or a true compromise as suggested by members of both political parties in the New York General Assembly, the result is higher taxes for the wealthiest New Yorkers and most likely and increased scrutiny of how much they pay.

3rd Circuit: NJ Township Has No Standing for Class Action to Collect Hotel Occupancy Taxes

The Third Circuit Court of Appeals affirmed the District Court’s decision that the Township of Lyndhurst, New Jersey did not have standing “in its capacity as a taxing authority” to pursue a class action against Priceline.com and other online hotel booking companies for unpaid hotel occupancy taxes.

Read the opinion here:
Township of Lyndhurst v. Priceline.com, Inc., No. 09-2053 (3rd Cir. August 2, 2011)

Oregon: Tax Court rejects Operational Approach to Cost of Performance

The Oregon Tax Court rejected the taxpayer’s operational approach to cost of performance in determining sales factor receipts for apportionment purposes. The taxpayer, AT&T Corp., filed a claim for refund after recalculating its Oregon sales factor based on the theory that a greater portion of its income producing activities were performed (cost of performance) outside of Oregon than within the state. AT&T used the operational approach (viewing the enterprise as whole) to calculate the costs of performance. The other widely accepted approach to calculating costs of performance is the transactional approach (considering each income producing transaction). The Oregon Tax Court rejected the AT&T’s arguments and the application of the operational approach. ┬áThe refund claim was denied.

Read the opinion here:
AT&T Corp. v. Department of Revenue, TC 4814 (June 28, 2011)