Property Purchased or Leased for Use Outside of Louisiana and Offshore Addressed in New Louisiana Guidance

The Louisiana Department of Revenue issued Revenue Information Bulletin No. 16-034 (July 14, 2016) to address the taxability of items of tangible personal property purchased or leased for use outside of Louisiana and offshore.

Louisiana Revised Statute 47:305(E) provides that it is not the intention of any taxing authority to levy a tax upon articles of tangible personal property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of any taxing authority to levy a tax on bona fide interstate commerce.  The corresponding regulation, LAC 61:I.4401(I), provides that specific pieces of property, which have been clearly labelled for transshipment outside the taxing jurisdiction at the time of manufacture or importation into the taxing jurisdiction, meet the requirements of La. R.S. 47:305(E), even though the item may be stored for an indefinite period of time.  This exemption includes items purchased for use in an offshore area beyond the territorial limits of Louisiana.

With respect to purchases for use in the federal offshore waters, the RIB requires that the invoice issued to the purchaser should evidence that the item has been purchased for use in a federal offshore area and identify in the destination area of the invoice:  (1) the federal lease number, (2) area and (3) block number.  If this information is not available, the invoice should note that the item is being shipped to the purchaser’s yard to await shipment to the purchaser’s platform in a federal offshore area.

With respect to a taxpayer’s importation of property from its yard in another state to a yard in Louisiana to be used in an offshore area beyond the territorial limits of Louisiana, then the taxpayer should document on the material transfer sheet the following:  (1) the federal lease number, (2) area and (3) block number.

With respect to an item leased for use both in interstate and intrastate commerce, such property may be subject to state lease tax depending upon its usage for each lease payment billing cycle. The amount subject to Louisiana lease tax is determined by a ratio of the property’s operational use in Louisiana intrastate commerce versus total operational use of both interstate and intrastate commerce. The Department set forth two percentages that will either exempt the entire lease payment or trigger full state lease tax on the lease payment:

  • If the average operational in Louisiana intrastate commerce is less than or equal to 10 percent of the total operational usage during a lease payment billing cycle, then the leased property is deemed to be used exclusively in interstate commerce, and no state lease tax will be due for this transaction.
  • If the average operational usage in Louisiana intrastate commerce is greater than or equal to 90 percent of the total operational usage during a lease payment billing period, then the leased item is deemed to be used in Louisiana intrastate commerce and state lease tax is due upon the entire payment.

Finally, the Department specifically notes the provisions of this Revenue Information Bulletin do not apply to ships of 50-ton displacement and ship’s supplies, which are exempt from state sales tax pursuant to La. R.S. 47:305.1.

SALT Team Partners Present at COST Regional State Tax Seminar

JW SALT Team collage-2016-07-13partners Jay Adams, Bill Backstrom, Andre Burvant, and Matt Mantle recently presented at the Council on State Taxation’s Southwest/West Regional State Tax Seminar in San Antonio, Texas, on June 23, 2016. Bill and Matt discussed nationwide trends in the state and local tax arena, while Jay and Andre discussed recent legislative and judicial developments in Louisiana tax law. All four partners also presented on the growing trend of “hidden tax claw backs” employed by states.

SAVE THE DATE! The Jones Walker SALT Team will be back in Houston!

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WHEN: THURSDAY, OCTOBER 6, 2016

WHERE: HILTON AMERICAS-HOUSTON

Please Save the Date for Jones Walker LLP’s 8th Annual State & Local Tax Seminar!

We will once again be “Cooking with SALT,” presenting a day-long program covering the most important Louisiana and Mississippi state and local tax issues currently facing taxpayers, as well as Louisiana and Mississippi legislative updates. Full brochure coming soon.

Be sure to check back for upcoming program details! This program is intended for industry tax professionals and will be recommended for approximately 9 hours of Texas CPE.

Questions? Contact Courtney Farley at cfarley@joneswalker.com

Louisiana Governor Calls for Second Special Session

Louisiana Governor John Bel Edwards has released his Call for the Second Special Session in 2016. The special session will begin at 6:30 p.m. on June 6, 2016, which is 30 minutes after the regular session ends. The special session will end on June 23, 2016.

The Call focuses on the Governor’s tax plan, which was released contemporaneously with the Call. The call also contains numerous items to address certain “unintended consequences” from the First Special Session, including taxation of isolated and occasional sales. Additionally, however, it includes the following major items:

  • Deductibility of excess federal itemized personal deductions in computing state income taxes;
  • Rates and brackets for state income tax;
  • Interest paid on refunds of tax overpayments;
  • Tax credits eligible to be refunded from current collections of the tax; and
  • Sales of items of tangible personal property for further processing.

The last item, perhaps, is interesting as it is the result of the Louisiana Supreme Court’s decision in Bridges v. Nelson Industrial Steam Co., which we will discuss in a later blog post.

The Jones Walker SALT Team will keep you posted on all of the developments. Stay tuned!

Louisiana Joins Fray in National Debate Over Online Remote Seller Sales Tax Nexus

IMG_5444Originally published by Tax Law360.

Taxation by states of out-of-state online retail sales remains a hotly contested issue.  Louisiana is now part of that national sales tax nexus conversation.

In March of 2016, during a special legislative session called by new Louisiana Governor John Bel Edwards (D) to address the State’s current budget shortfalls, the Louisiana Legislature passed House Bill 30 (signed into law as Act 22 and effective April 1, 2016), whereby certain out-of-state online retailers are now statutorily required to collect and remit Louisiana state and local sales and use taxes for online purchases made by Louisiana taxpayers. A question remains, however, as to the ultimate effect this new remote seller legislation will have on Louisiana’s budget issues and the overall movement nationwide to statutorily (or administratively) expand sales tax nexus.

[A] question does seem to present itself as to whether Louisiana has now become a new kind of bellwether state – an indicator of what may be the “new norm” among even the more conservative, mainstream state Legislatures, and a sign of what is to come across all the states.  Only time will tell whether Louisiana’s Act 22 is a new catalyst that sparks additional legislative activity across the country.

The longtime guiding backstop regarding the extent to which states can force out-of-state remote sellers to collect and remit state sales and use taxes is the “physical presence” substantial nexus standard in the U.S. Commerce Clause.  This physical presence standard was cemented in the U.S. Supreme Court’s ruling in Quill Corp v. North Dakota, 504 U.S. 298 (1992), to protect against state sales and use tax legislation that would improperly burden interstate commerce.  For more than two decades, the decision by the U.S. Supreme Court in Quill has served as the final word on the requirements regarding collection of sales and use taxes.  The seller must have an actual “physical presence” in a state for that state to require the seller to collect sales tax.

In the years following Quill, however, states have been increasingly trying to determine what degrees of “presence” are in fact sufficient to create this constitutional nexus between a seller and the state.  Such efforts by states have advanced in recent years as a result of the less-than-stable economic conditions within the country and the increasing popularity and convenience of online shopping (driving sales away from in-state brick and mortar stores to out-of-state online sellers).

A FAMILIAR STORY: LOUISIANA BUDGET WOES AND THE LEGISLATURE’S RESPONSE

Louisiana, like many U.S. states, is facing a daunting budget challenge. Over the past several years, a downturn in oil and gas prices and some sluggishness in other areas of the regional economy have led to a decline in state tax revenues. At the same time, the State’s share of the costs of mandated federal programs and other fiscal issues have created a stated need for increased spending.

As part of their development of a solution to these budget woes, lawmakers in Louisiana and around the country have been looking to, among other things, broaden their respective taxable bases, close perceived “tax loopholes,” and find ways to ensure better tax compliance within their current tax bases.  To that end, states are, among other things, increasing efforts to recapture lost sales tax revenues resulting from changing technologies, the expansion of the Internet, and the pervasiveness of online shopping.  Legislators have relied in part upon the often-cited reports by William F. Fox, Donald Bruce, and LeAnn Luna of the University of Tennessee, which attempt to quantify state and local sales tax revenue losses resulting from the development and expansion of e-commerce.  The authors claim, for example, that state and local governments possibly lost more than $56 billion over the six-year period ending in 2012.  While the actual numbers are currently being debated, many state legislators see online sales as a huge, untapped source of much-needed revenue without having to technically “increase taxes” or “expand the tax base” to previously untaxed transactions.

Louisiana is no exception.

Almost immediately following his inauguration on January 11, 2016, Governor Edwards called a special legislative session to focus on dramatic budget shortfalls for the fiscal years ending on June 30, 2016 (FY16), and June 30, 2017 (FY17).  According to stated projections, barring some form of action, the FY16 budget deficit was expected to be $700 million and the FY17 shortfall was estimated to reach $1.9 billion.  Part of the Governor’s package of revenue-raising bills was HB 30, which required the collection and remittance of state and local sales and use taxes by, among others, certain remote online vendors.  Although not outwardly advertised as a piece of legislation that “expanded the tax base” or “raised taxes,” the clear intent of the bill was to try to capture some of the lost tax revenue resulting from the advent and explosion of e-commerce.

HB 30 was actually an identical reiteration of a prior bill (HB 555) passed by the Legislature last year in the 2015 Regular Session, but which died on the prior Governor’s desk, being one of only a small handful of tax bills vetoed by then-Governor Bobby Jindal.  The stated basis for Governor Jindal’s veto was his concern that other states had failed to win court challenges against such a statutory expansion of sales tax nexus, and that doing so in Louisiana would expose the State “to extensive litigation that has budgetary implications for critical services like healthcare and higher education.”

What a difference a year makes.  Approximately eight months and one governor later, during the recent 2016 special session, HB 30 sailed through both the House and Senate and was quickly signed into law by Governor Edwards.

From a public relations perspective, assigning responsibility for the collection and remittance of state and local sales taxes to out-of-state, online retailers makes some sense.  As opposed to implementing tax increases that are likely to be perceived as directly harmful to Louisiana taxpayers (and while consciously ignoring a range of potentially negative trickle-down effects), shifting the burden of collecting such taxes to non-Louisiana entities allows legislators and the Governor to perform a delicate two-step in which non-remitting online retailers are now cast in the role of “violators” of the law, should they not comply.

These arguments, however, generally ignore the fact that Louisiana retail customers are already liable for payment of such taxes, whether they report and pay the statutorily required complementary use taxes when filing their annual state income tax returns, or otherwise submit the tax directly to the state and local sales and use tax collectors. That said, supporters of online remote seller tax legislation point out that many taxpayers are either unaware of this responsibility or simply refuse to comply (fully expecting that the states have neither the resources nor the wherewithal to track down individuals who fail to report and pay these taxes).

TECHNICAL ELEMENTS OF ACT 22

In an attempt to expand the boundaries of “physical presence” under Quill, and following in the footsteps of such states as California and New York, Act 22 expands Louisiana’s remote seller nexus for out-of-state vendors (including online retailers) with certain business activities in the State.  Specifically, Act 22 creates new collection and remittance requirements on certain additional remote sellers by expanding the applicable statutory definition of “dealer.”  The following additional activities now qualify a remote seller as a “dealer” and thereby create statutory nexus between the seller and the State for state and local sales and use tax purposes:

  • Click-through nexus (Amazon law):  Solicitation of business through agreements with independent contractors or other representatives who are Louisiana residents, where the resident refers potential customers (by link on an Internet website or otherwise) to the seller for a referral fee or some other form of consideration, and where the gross receipts generated from such business are in excess of $50,000 during the prior twelve months.
  • IP nexus:  Selling the same or a substantially similar line of products as a Louisiana retailer under the same or substantially similar business name, using trademarks, service marks, or trade names that are the same or substantially similar to those used by the Louisiana retailer.
  • Affiliate nexus:  Soliciting business and developing and maintaining a market in Louisiana through an agent, salesman, independent contractor, solicitor, or other representative under an agreement with a Louisiana “affiliated agent” (a resident or business) where the affiliated agent, for a commission, referral fee, or other consideration, engages in activities that inure to the benefit of the remote seller to help develop business or maintain a market for the remote seller’s goods or services in the State, as long as those activities of the agent are sufficient to satisfy the sales tax nexus requirements of the U.S. Constitution.
  • “Substantial ownership interest” nexus:  Holding a substantial ownership interest, directly or through a subsidiary, in (or being substantially owned by) a retailer with sales locations in Louisiana.  “Substantial ownership interest” is defined to mean affiliated entities where there is an ownership interest of more than 5%, whether direct or indirect, in the other entity.

Those qualifying remote sellers would now be required to collect and remit Louisiana state and local sales and use taxes on their remote sales into Louisiana.  Such remote sellers would use a flat local sales and use tax rate of 4%, along with the applicable state sales and use tax rate (currently 5%).  Act 22 is applicable to all tax periods beginning on or after April 1, 2016.

THE FALLOUT

Far from resolving the issues surrounding state taxation of online sales, however, the Legislature’s implementation of Act 22 now sets the stage for a likely confrontation with online retailers and other out-of-state entities that are now considered “dealers” in Louisiana.  Not unexpectedly, many out-of-state sellers disagree strongly with Act 22.  Some are simply pulling back from any of these new “trigger” activities in Louisiana.  For example, Amazon.com has already ended its advertising relationships with Louisiana affiliates and online sellers that had been established through its Amazon Associates Program.  Such Louisiana affiliates will no longer be able to earn ad revenue from Amazon.

Additionally, passage of Act 22 will almost certainly lead to constitutional challenges from out-of-state taxpayers that believe the Legislature’s actions go beyond the current scope of Commerce Clause “physical presence” substantial nexus under Quill.  Barring any legislative action at the federal level, which has yet to gain significant traction, such constitutional challenges will likely be settled only in court.  As a result, state officials and business taxpayers are already gearing up for the fights to come.

Also, from a compliance perspective, the April 1, 2016 effective date of Act 22 imposed a heavy burden on many out-of-state sellers who previously had no Louisiana sales tax registration requirements.  Within the span of only a couple of weeks, these out-of-state sellers were required to determine whether they now had statutory nexus with Louisiana under one of the new categories, register for sales tax purposes in the State, and adjust their point of sale systems and internal processes so as to be able to properly collect and remit Louisiana state and local taxes on any transactions to Louisiana purchasers.  All of this, of course, also assumes that the out-of-state sellers became immediately aware of the enactment of Act 22 and the resulting statutory nexus changes.

THE EFFECT OF LOUISIANA’S ACTIONS ON THE NATIONAL REMOTE SELLER NEXUS CONVERSATION

When it comes to its tax laws — or legislation in almost any arena, for that matter — Louisiana is not generally known as an innovator among states. Typically, Louisiana legislators wait to see how issues and debates play out in other jurisdictions before taking action at home.  With the passage of Act 22, however, the Louisiana Legislature leaped somewhat into the spotlight of the online sales and use tax debate.  Louisiana is now among a minority of U.S. states that have passed this type of legislation, most of which rely on creative means of pushing the boundaries of (and in some cases circumventing) the “physical presence” substantial nexus standard laid out in Quill.

While it is clear that Louisiana is not a unique groundbreaker in this area of remote seller nexus legislation (other states already had similar legislation, and roughly 30% of the country’s state tax departments believe the types of activities in Act 22 create nexus for sales tax purposes), a question does seem to present itself as to whether Louisiana has now become a new kind of bellwether state – an indicator of what may be the “new norm” among even the more conservative, mainstream state Legislatures, and a sign of what is to come across all the states.  Only time will tell whether Louisiana’s Act 22 is a new catalyst that sparks additional legislative activity across the country.

What is clear, however, is that such legislative actions will continue to be strongly challenged by out-of-state taxpayers who believe these types of statutory nexus provisions go too far, violating taxpayers’ Commerce Clause protections under the “physical presence” standard articulated by the U.S. Supreme Court in Quill.

SALT Team Alum Named Distinguished LSU MPA Alumnus of the Year

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SALT partners, Andre Burvant, Jay Adams, and Bill Backstrom pictured with the distinguished LSU MPA Alumnus of the Year, Kimberly Lewis Robinson, Secretary of the Louisiana Department of Revenue

Kim, formerly a partner with the Jones Walker SALT Team, was recognized as the 14th alumnus honored by the LSU Public Administration Institute on April 22, 2016.

Mississippi Legislature Passes Corporate Franchise Tax Phase-Out, Income Tax Reductions

Late Monday evening, on April 18, 2016, the Mississippi House and Senate approved a conference committee report on Senate Bill 2858, known as the “Taxpayer Pay Raise Act of 2016”, to implement a ten-year phase out of the corporate franchise tax, and also to phase-in an individual and corporate income tax exemption on the first $5,000 of taxable income. Barring any last-minute procedural delays, the bill could go to Governor Phil Bryant possibly as early as today, April 20, 2016. Highlights of the bill are as follows:

Beginning in the 2018 tax year, S.B. 2858 will enact the following changes:

  • The franchise tax rate (currently $2.50 per $1,000 of capital) will be reduced ratably over ten years until the tax is fully repealed in 2028.

 

  • The first $100,000 of taxable capital will immediately become exempt from the franchise tax, and that exemption will remain constant throughout the phase-out period. This provision was not included in the original bill, and will likely serve to completely exempt many small businesses from the franchise tax in the first year.

 

  • The present 3% income tax bracket, which applies to the first $5,000 of taxable income, will be phased out over five years, after which the existing 4% and 5% rates will continue to apply to taxable income in excess of $5,000 and $10,000, respectively. These income tax reductions apply to both individual and corporate taxpayers.

Beginning in the 2017 tax year, self-employed taxpayers also will be entitled to deduct from their Mississippi gross income a portion of their federal self-employment taxes. This deduction will equal 17% of that tax in 2017, 34% in 2018 and 50% for tax years 2019 and after (being equal to the federal deduction).

These tax cuts have been politically charged, and initial reports suggest the final bill could ultimately cost the state over $260,000,000 in annual franchise tax revenue once fully implemented, and potentially $415,000,000 when considering the income tax cuts. While many commentators characterized the early franchise tax cut proposals as hand-outs to large corporations, the final income tax breaks and the late addition of the $100,000 franchise tax exemption undoubtedly will benefit a large number of small businesses and virtually every individual taxpayer in the state.

For more information, please contact John Fletcher, Dennis Miller, or Justin Stone.

UPDATE April 27, 2016:  On Monday, April 26, 2016, SB 2858 was sent to Governor Bryant for his signature.

SALT Team Member Jay Adams Once Again Goes Hog Wild at 8th Annual Hogs for the Cause

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JW SALT Team member Jay Adams once again goes hog wild with his Fleur de Que team at the 8th Annual Hogs for the Cause (“HFTC”), a New Orleans barbeque competition and fundraiser. HFTC is now one of the largest barbecue competitions and music festivals in the country whose main mission is to help families fighting pediatric brain cancer.

Jay’s team, Fleur de Que, braved the torrential rains and received awards for Biggest Fundraiser and Best Booth.

Please click here for more information on HFTC and how you can contribute.

Herb Frierson Appointed Commissioner of the Department of Revenue for Mississippi

Mississippi Governor Phil Bryant has announced the appointment of Herb Frierson as the Commissioner of the Department of Revenue for Mississippi effective July 1, 2016.

Prior to being appointed Commissioner, Mr. Frierson served as a Republican member of the Mississippi House of Representatives, representing District 106. In his future role as Commissioner, Mr. Frierson will oversee the Mississippi Department of Revenue and will be responsible for collecting taxes for the state Treasury.

Mr. Frierson said that he will “miss the House of Representatives, but it’s time to move on, and this is the perfect opportunity.” He added “I’m very excited about the challenge and look forward to continuing public service.”

Mississippi Supreme Court Sends Half-Baked Assessment Back to the Kitchen

iStock_000024072281_LargeMississippi Department of Revenue v. Hotel and Restaurant Supply

Cause No. 2014-CA-01685-SCT (March 10, 2016)

In Mississippi Department of Revenue v. Hotel and Restaurant Supply, the Mississippi Supreme Court on Thursday, March 10, 2016, upheld the reversal of a sales tax assessment levied against a vendor who failed to collect sales taxes on construction-related materials sold to a contractor who presented the vendor with a material purchase certificate (“MPC”). The Court’s decision could have broad implications for a wide range of other sellers, and likely prohibits the Department from attempting to hold a vendor liable for its customers’ unpaid sales taxes when the vendor obtained valid exemption documents such as MPCs, direct pay permits, retail sales tax numbers, and other items that statutorily shift the tax payment responsibility from a vendor to a customer. The Court also provided important clarification on the standard of review applicable to tax appeals, but left some critical questions unanswered.

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