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TWIST - This Week in State Tax

07.17.2023 | Duration: 3:16

Summary of state tax developments in Hawaii, Maryland, Massachusetts and New Jersey

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Podcast overview

Welcome to TWIST for the week of July 17, 2023, featuring Sarah McGahan from the KPMG Washington National Tax state and local tax practice.

Today we are covering comprehensive Corporation Business Tax changes recently enacted in New Jersey, a Technical Information Release from Massachusetts addressing when a software provider will be classified as a manufacturing corporation, and a new law in Hawaii that will attempt to eventually replace motor fuel taxes with a road usage fee. We are also discussing a decision from Maryland’s highest court as to why it dismissed challenges to the state’s digital advertising tax.

Recently enacted, Hawaii Senate Bill 1534 sets the stage for eventually replacing Hawaii’s existing motor fuel excise tax with a mileage-based road usage charge for all vehicles. The first part of that plan is to subject electric vehicles to a mileage-based road usage charge effective July 1, 2025.  Until June 30, 2028, owners of electric vehicles may elect to pay the current $50 registration surcharge for electric vehicles in lieu of the state mileage-based road usage charge. The bill also requires the Department of Transportation to develop a long-term mile-based road usage charge implementation plan to encompass all passenger vehicles and light duty trucks by December 31, 2033.

On July 12, 2023, the Maryland Supreme Court issued an opinion setting forth its reasons for ordering a lower court to dismiss a lawsuit brought by two companies challenging the constitutionality of Maryland’s digital advertising tax. At the outset of the opinion, the court noted that its resolution of the matter was not premised on any views of the merits of the challenges raised in the lawsuit. However, the court, after reviewing the Maryland statutes setting forth the remedies for resolving a tax dispute, concluded that those remedies were the primary, if not the exclusive, mechanisms for resolving tax disputes and an exception for constitutional challenges did not apply.

The Massachusetts Department of Revenue has issued TIR 23-8, which sets forth the Commissioner’s interpretation of the Appellate Tax Board’s decision in Akamai Technologies. Based on the Board’s decision, Department has determined that corporations selling access to software that allows customers to input their own information, manipulate the software, and run reports without interaction with the corporation or its employees, are engaged in the manufacture and sale of tangible personal property. Therefore, such corporations are manufacturing corporations for purposes of property and sales tax benefits and are required to use single sales factor apportionment for corporate excise tax purposes.

Finally, in New Jersey Assembly Bill 5323 was signed into law by Governor Phil Murphy. This bill makes significant revisions to New Jersey’s Corporation Business Tax laws, including codifying certain of the Division’s current positions, refining the state’s conformity to the Tax Cuts and Jobs Act, and revising New Jersey’s combined reporting provisions. 

Hawaii

Hawaii: Mileage Based Road Usage Charge Replaces Fuel Tax

Hawaii has recently become the latest state to enact legislation designed to curb the reduction in fuel tax revenues due to increased use of electric vehicles and to maintain funding for road infrastructure.  Senate Bill 1534 sets the stage for eventually replacing Hawaii’s existing motor fuel excise tax with a mileage-based road usage charge for all vehicles to be administered as part of the state’s annual vehicle safety inspection and vehicle registration process. The first part of that plan is to subject electric vehicles to a mileage-based road usage charge effective July 1, 2025.  The state mileage-based road usage charge will be calculated at the rate of 0.8 cents per mile traveled, multiplied by the number of miles traveled, less the estimated amount of paid state fuel taxes that correspond with the number of miles traveled. Until June 30, 2028, owners of electric vehicles may elect to pay the current $50 registration surcharge for electric vehicles in lieu of the state mileage-based road usage charge. The bill also requires the Department of Transportation to develop a long-term mile-based road usage charge implementation plan, including proposed legislation, to encompass all passenger vehicles and light duty trucks by December 31, 2033. Please stay tuned to TWIST for additional fuel tax replacement developments. Under current law, businesses with an average monthly state sales tax liability of $5,000 or greater in the preceding calendar year are required to make estimated payments to the Department of Revenue each month. The estimated payment is the lesser of 2/3 of the liability for the same month in the previous year or 2/3 of the estimated liability for the current month. Recently signed House Bill 77 increases this threshold amount to an average monthly state sales tax liability of $20,000 or more. The fiscal note for the bill estimates that an additional 3,100 small businesses will no longer be required to prepay their sales taxes under the revised law. This change is effective on October 1, 2023.  Please stay tuned to TWIST for additional sales tax changes. 

Maryland

Maryland: State Supreme Court Opinion Dismissing Digital Advertising Tax Suit Released

On July 12, 2023, the Maryland Supreme Court issued an opinion setting forth its reasons for ordering a lower court to dismiss a lawsuit brought by two companies challenging the constitutionality of Maryland’s digital advertising tax. The companies did not pay the digital advertising tax and then request a refund; neither were they assessed for failing to pay the tax. Rather, the companies filed a declaratory judgment action in circuit court seeking to invalidate the tax on various constitutional grounds and because it violated the Internet Tax Freedom Act. Recall, back in May, the Maryland Supreme Court ruled that the Circuit Court for Anne Arundel County lacked jurisdiction over the lawsuit because the companies failed to exhaust their administrative remedies. At that time, the court stated that the reasons for this conclusion would be addressed in a forthcoming opinion. That opinion was just released.

 At the outset, the court noted that its resolution of the matter was not premised on any views of the merits of the challenges raised in the lawsuit. However, the court, after reviewing the Maryland statutes setting forth the remedies for resolving a tax dispute, concluded that those remedies were the primary, if not the exclusive, mechanisms for resolving tax disputes. Two statutes solidified the court’s opinion -a statute generally prohibiting judicial remedies that would prevent the assessment or collection of taxes and a specific statutory prohibition against the use of a declaratory judgment action as an end-run around special statutory administrative remedies. In the court’s view, these two provisions made clear the General Assembly’s intent that the special statutory administrative remedies for resolution of tax disputes are exclusive. The court next addressed whether the constitutional exception to the administrative exhaustion requirement applied in the instant case. That exception generally “permits a judicial determination without administrative exhaustion when there is a direct attack upon the power or authority . . . of the legislative body to adopt the legislation from which relief is sought.” Noting that the exception is “extremely narrow” and subject to many limitations, the court held that it was not applicable where, as here, the applicable special statutory administrative remedies are exclusive with respect to the companies’ challenge to the digital advertising gross revenues tax. Please stay tuned to TWIST for updates on the Maryland digital advertising tax and the litigation that will likely be refiled in the future. 

Massachusetts

Massachusetts: Certain Software Providers will be Manufacturing Corporations

The Massachusetts Department of revenue recently issued TIR 23-8, which sets forth the Commissioner’s interpretation of the Appellate Tax Board’s decision in Akamai Technologies. In Akamai, the issue was whether the taxpayer was developing and selling standardized computer software so that it was classified a manufacturing corporation. The Board ruled in the taxpayer’s favor, holding that it was engaged in manufacturing through the development and sale of remotely accessed software. As such, the taxpayer was classified as a manufacturing corporation for local property tax and corporate excise tax purposes; in computing Massachusetts taxable income, the taxpayer was required to use single-sales factor apportionment.

In the TIR, the Department concludes that corporations that develop and sell access to software that allows customers to input their own information, manipulate the software, and run reports without interaction with the software provider or its employees, are engaged in the manufacture and sale of tangible personal property. Therefore, such corporations are manufacturing corporations for purposes of property and sales tax benefits and are required to use single sales factor apportionment for corporate excise tax purposes. While beneficial for in-state businesses, this decision/interpretation is generally not beneficial for out of state software providers. Please contact Sarah McGahan with questions on TIR 23-18.

New Jersey

New Jersey: Significant Corporation Business Tax Changes Enacted

On July 3, 2023, Assembly Bill 5323 was signed into law by Governor Phil Murphy. This bill makes significant revisions to New Jersey’s Corporation Business Tax (CBT) laws, including further refinements to the state’s combined reporting provisions.  Details of the changes, certain of which clarify current Division of Taxation policies, are discussed in more detail below.

Economic Nexus

Although New Jersey courts have upheld the imposition of economic nexus for CBT purposes, New Jersey does not have a bright-line CBT economic nexus standard. Assembly Bill 5323 adopts an economic nexus standard that is similar to those applied by many states for sales and use tax nexus purposes. Notably, a corporation deriving receipts exceeding $100,000 from in-state sources or that had 200 or more separate transactions delivered to New Jersey customers during the taxable year will be deemed to have substantial nexus with New Jersey.  The bill makes clear a corporation with sales/transactions below these thresholds may still have New Jersey nexus if the corporation’s exercise of its franchise in New Jersey is otherwise sufficient to establish jurisdiction.

Entire Net Income Changes and Conformity Changes

Assembly Bill 5323 makes numerous changes to the definition of “entire net income,” which is generally the amount of income reported on a taxpayer’s the federal income tax return subject to certain statutory adjustments and before apportionment. Certain aspects of New Jersey’s conformity to the Tax Cuts and Jobs Act are also modified under the bill.

Repeal of the Related Party Intangible Expense and Interest Addback Statute: For privilege periods and taxable years ending on or after July 31, 2023, the bill repeals N.J.S.A. 54:10A-4.4, which addressed the statutory requirement to add back intangible expenses and related interest paid or accrued to a related member and modifies N.J.S.A. 54:10A-4(k)(2)(I), which addressed traditional interest expense paid or accrued to a related member. Since New Jersey moved to combined reporting, transactions between unitary group members have been eliminated. However, intangible expenses and interest paid to non-group affiliates remained subject to addback. 

Revised Dividends Received Exclusion:  Previously, entire net income excluded 95 percent of dividends paid or deemed paid to the taxpayer by one or more 80 percent or more owned subsidiaries. For privilege periods ending on or after July 31, 2023, entire net income excludes 100 percent of dividends or deemed dividends from 80 percent or more owned subsidiaries. Further, the dividends received exclusion is now allowed after the modifications are made that increase entire net income but before the modifications that reduce entire net income (e.g., NOLs) and before entire net income is apportioned to New Jersey, which is a shift from the former policy where taxpayers eligible for the dividends exclusions were forced to “burn” NOLs before deducting any dividends. The dividends-received exclusion is reduced by expenses and deductions attributed to dividends or deemed dividends, which must equal five percent of all dividends and deemed dividends received.

Treatment of GILTI: Under prior law, any amount included in entire net income under IRC section 951A (GILTI) was not considered to be a dividend or deemed dividend. Assembly Bill 5323 treats amounts included in income under IRC section 951A as a dividend for privilege periods ending on and after July 31, 2023.

Foreign Treaty Protected Income Excluded: For privilege periods ending on and after July 31, 2022, the entire net income of any corporation that is incorporated or formed in a foreign country that has a comprehensive tax treaty with the U.S. and is not a member of a New Jersey worldwide group does not include any income exempted from federal taxable income under the terms of the treaty. For a foreign corporation that files a federal tax return and is not part of a New Jersey combined group, only effectively connected income will be included in entire net income.

Treatment of R&E Expenditures: Historically, under New Jersey law, no deduction was allowed for research and experimental expenditures to the extent that those research and experimental expenditures were qualified research expenses or basic research payments for which an amount of credit was claimed under N.J.S.A.  54:10A-5.24, unless those research and experimental expenditures were also used to compute a federal credit claimed under IRC section 41.

Assembly Bill 5323 provides that for privilege periods beginning on and after January 1, 2022, a deduction for research and experimental expenditures is allowed during the same privilege period for which a credit is claimed under N.J.S.A. 54:10A-5.24. This apparent change marks a policy shift from New Jersey’s requirement that taxpayers add back expenses used to calculate the New Jersey R&D credit. This deduction is allowed notwithstanding the timing schedule required under IRC section 174 for the deduction of specified research and experimental expenditures. The New Jersey Division of Taxation has confirmed on its website that, in the Division’s view, only New Jersey qualified research expenditures can be deducted in the year incurred, assuming a credit is claimed. Non-New Jersey research expenditures are deductible in the same manner and with the same timing as they are for federal purposes (i.e., amortized over a five or fifteen year period).

Application of the IRC section 163(j) Limitation: For privilege periods after December 31, 2017 and ending on or after July 31, 2022, the IRC section 163(j) limitation applies to a combined group as though it had filed a federal consolidated return. For the purposes of applying the limitation with regard to affiliates that were members of the federal consolidated return but were not members of the New Jersey combined group, the combined group and the affiliates will also be treated as having filed one federal consolidated return. This legislative change codifies the Division of Taxation’s current policy as set forth in TB-87(R).

80 percent NOL Limit: For privilege periods ending on and after July 31, 2023, Assembly Bill 5323 adopts the federal 80 percent limitation on the use of NOLs.

Combined Reporting Changes

Deduction To Offset Financial Statement Impact of Combined Reporting: New Jersey allows a deduction to offset the financial statement impact of the state moving to unitary combined reporting for privilege periods ending on and after July 31, 2019.  The deduction was scheduled to be taken over a 10-year period beginning with the combined group’s first privilege period beginning on or after January 1, 2023. Under Assembly Bill 5323, for privilege periods beginning on and after January 1, 2023, but before January 1, 2030, the combined group may deduct one percent per privilege period of the amount necessary to offset the increase in the net deferred tax liability or decrease in the net deferred tax asset. The deduction increases to five percent per year for privilege periods beginning on or after January 1, 2030.

Composition of the Unitary Group: The default filing method in New Jersey is water’s-edge combined, and the combined group includes certain domestic entities (unless they have 80 percent or more of their property or payroll outside the U.S.) and other members that have 20 percent or more of both their property and payroll in the U.S. Under the bill, a group member, wherever formed or incorporated, that is not otherwise included in the water’s-edge combined group, is included if that member had effectively connected income, but only to the extent of its effectively connected income. 

Assembly Bill 5323 clarifies that for privilege periods ending on and after July 31, 2022, the worldwide combined group includes all of the income and attributes of those members regardless of how or whether those members file federal returns or report or include their income in federal taxable income for federal purposes, and without regard to any exemption or exclusion from federal taxable income under the terms of a tax treaty. Any deductions that are allowed under the IRC that are also allowable under the CBT Act that would apply to a U.S. corporation, but that a non-U.S. corporation is prohibited from claiming for federal income tax purposes will be allowed for the non U.S. corporation members of the combined group.

Inclusion of Captive Entities: Effective for privilege periods ending on and after July 31, 2023, new definitions apply to “captive real estate investment trusts,” “captive regulated investment companies,” and “captive investment companies.” Entities meeting these new definitions are taxed in the same manner as any other C Corporation and are required to be included as a member of a combined group filing a combined return. A captive real estate investment trust, a captive regulated investment company, and a captive investment company does not include any entity of which at least 50 percent of the shares, by vote or value, is owned or controlled, directly or indirectly, by a state or federally chartered bank, savings bank, or savings and loan association with assets that do not exceed $15 billion.

Sharing of Prior Net Operating Loss Conversion Carryovers: When New Jersey moved to combined reporting, net operating losses incurred in privilege periods ending prior to July 31, 2019 were converted from pre-apportionment net operating losses to post-apportionment net operating losses. These so called “prior net operating loss conversion carryovers” could be deducted only by the combined group member that created the loss; the prior net operating loss conversion carryovers could not be shared with other members of the combined group.

Assembly Bill 5323 simplifies the application of prior net operarting loss conversion carryovers for combined groups by allowing pooling. Specifically, for privilege periods ending on and after July 31, 2023, the balance of prior net operating loss conversion carryover deductions of the members of the combined group will be pooled together and allowed to offset the entire net income apportioned to New Jersey of either: the combined group for which the corporation is a member; or the corporation that created the prior net operating loss conversion carryover, provided that the corporation has departed the combined group before the corporation’s respective prior net operating loss conversion carryover was completely used.

Finnigan: Previously, entities filing a water’s-edge or worldwide New Jersey combined return used the so-called Joyce apportionment rule; Assembly Bill 5323 adopts a Finnigan approach for combined groups, which is consistent with the approach used by New Jersey filers that have made the affiliated group election

Discretionary Authority: Provisions in earlier versions of the bill that would have allowed the Director of the Division of Taxation to combine or decombine taxpayers under certain enumerated circumstances were stricken.

Managerial Member Election Period: The managerial member of the New Jersey combined group files the mandatory combined return on behalf of the taxable members of the combined group. If the group has a common parent corporation taxable group member, that group member is the managerial member. If there is no common parent corporation that is a taxable group member, the group may select a taxable group member to be the managerial member. Previously, that election was binding for 10 privilege periods. Assembly Bill 5323 provides that the election of a managerial member is binding for the current privilege period and five successive periods, unless as otherwise provided by the Director.

Underpayment Penalties

For privilege periods ending on and after July 31, 2023, but before January 1, 2024, no penalties or interest will accrue for the underpayment of tax due to any provision in Assembly Bill 5323 that creates additional tax liability. For privilege periods ending on and after July 31, 2023, the additional estimated tax payments must be made no later than the second next estimated payment due following the enactment of the bill, or the second estimated payment due after January 1, 2024, whichever due date is later. For calendar year taxpayers, the additional tax payments related to the 2023 privilege period would be due by June 15, 2024.

Contacts: Please contact Jim Venere or Andrew Eskola with questions.

Meet our podcast host

Image of Sarah McGahan
Sarah McGahan
Managing Director, State & Local Tax, KPMG US

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