Reed Smith Hosts Webinar on Net Worth Measure of Corporate Excise Tax

On April 23, 2019, Reed Smith’s Massachusetts tax team held a webinar discussing issues and opportunities that arise under the net worth measure of the Massachusetts corporate excise tax.  The program, titled “Massachusetts’ Net Worth Based Tax – Not As Simple As It Appears”, ran about 35 minutes and included discussion on how the net worth measure is computed, some common taxpayer pitfalls in computing the tax, refund opportunities, and challenges to Department audit positions.

A recording of the webinar can be accessed here.

Massachusetts multiple points of use sourcing update—a surprise reversal by the Appellate Tax Board

The Massachusetts Appellate Tax Board (“ATB”) has—on its own motion—reconsidered and reversed a 2017 decision that denied refund claims for sales tax paid on software downloaded onto servers located in Massachusetts, but used outside of Massachusetts. Taxpayers that paid Massachusetts sales tax on software used outside the Commonwealth may have a refund opportunity and should consider protective refund claims.

For full coverage, see our client alert here.

REMIC Excess Inclusion Income – Is It Included in Net Income?

Corporations and financial institutions that hold REMIC residual interests may have a Massachusetts corporate excise tax refund opportunity.

REMICs are essentially pools of mortgages that are taxed on a pass-through basis for federal income tax purposes. Interests in REMICs fall into two general categories: regular interests and residual interests.  Typically, the holders of the REMIC residual interests are not entitled to any payments with respect to their interests until the regular interests have been fully satisfied.  However, under the federal income tax rules governing REMICs, residual interest holders may still be required to recognize income in years in which they receive no payments with respect to their interests.  This “phantom” income recognition is referred to as “excess inclusion income”.

Mechanically, excess inclusion income is reported as an annual “true up” to the federal taxable income of a residual interest holder. Thus, REMIC residual interest holders are instructed that the taxable income they report on Line 30 of their federal income tax return (Form 1120) for each year must be no less than the excess inclusion amount.

Many residual holders assume that excess inclusion income must also be included in net income for Massachusetts corporate income tax purposes. However, it is not clear that this treatment is correct.

First, the starting point for computing net income for Massachusetts corporate excise tax purposes is “gross income as defined under the provisions of the Internal Revenue Code”.  G.L. c. 63, §§ 1, 30.  Excess inclusion income is not included in gross income.  Instead, excess inclusion income operates as a minimum, or floor, imposed on the calculation of federal taxable income after NOL and special deductions (Form 1120, Line 30).  See 2016 Instructions for Form 1120, U.S. Corporation Income Tax Return, p. 15.  As a consequence, excess inclusion income should not be included in the calculation of net income for Massachusetts purposes.  The corporate excise tax return instructions support this position, because they direct taxpayers to use taxable income before NOL and special deductions (Line 28 of Form 1120), rather than Line 30, as the starting point for computing net income.  See, e.g., MA – 2016 Instructions for Form 1120 2016 Massachusetts Corporate Excise Return, Form 355, Instructions, p. 12.

Second, the Massachusetts courts have long viewed the authorization for the imposition of an income tax in Article 44 of the Amendments to the Massachusetts Constitution as limited to taxes imposed on “true” income. Thus, in several cases, the Supreme Judicial Court has found taxes to be invalid to the extent imposed on “fictional” or “paper” income.  See, e.g., Bill DeLuca Enterprises, Inc. v. Commissioner, 431 Mass. 314 (2000).  Excess inclusion income would seem to fall squarely within the scope of fictional income—because it can be recognized by a residual interest holder independent of any distribution, disposition or other realization event.

Taxpayer Challenges Department Authority to Adjust NOL Carryforward, When NOL Was Generated in Tax Years Otherwise Closed by Statute

Can a Department of Revenue auditor reduce a taxpayer’s deduction for a net operating loss (“NOL”) carryforward, even if the NOL was generated in a tax year that is closed under the statute of limitations? This question is the subject of an appeal currently pending at the ATB.

The appeal involves a telecommunications company that was audited for the 2007 – 2009 tax years. The taxpayer had an NOL carryforward that it applied to reduce Massachusetts taxable income for years during the audit period.  As part of the audit, the Department disallowed the taxpayer’s deductions for interest paid to affiliates under a cash management system, increasing the taxpayer’s income subject to tax.  But the Department then went a step further.  According to the taxpayer’s petition, the Department also reviewed the taxpayer’s interest deductions for the years in which the taxpayer generated the NOL carryforward deducted in the years included in the audit period.  The Department disallowed the interest deductions claimed for payments to affiliates under the cash management system for these otherwise closed years, resulting in a reduction to the taxpayer’s claimed deduction for NOL carryforwards during the years included in the audit.  In effect, the Department conducted an audit of a year that would otherwise have been closed by statute, in order to make adjustments that could be carried forward to open tax years.

The taxpayer is arguing that the adjustments to its NOL carryforwards are invalid, in part, because the Department does not have the authority to revise its net income (or loss) for years that are otherwise closed by the statute of limitations.

Opportunity for Taxpayers:

This case should serve as a reminder to taxpayers under audit or filing a refund claim to consider whether they have additional issues that could create or increase an NOL in a prior year, which could then be carried forward and used in the year that is the subject of the audit or refund claim, even if the prior year would otherwise be outside the statute of limitations.  For example, suppose a taxpayer faces an audit adjustment for the 2012 tax year. However, for the 2008 tax year (a year for which the limitations period for filing a refund claim has closed), the taxpayer erroneously added back interest paid to an affiliate for which an exception to add back was available. If the exception had been claimed, the interest deduction would have resulted in an NOL that would have been available for carryforward to the 2012 tax year. When appealing the 2012 tax year assessment, the taxpayer should consider both challenging the audit adjustment for the 2012 tax year and arguing for an increase in its NOL carryforward from the 2008 tax year as an offset issue.

Closing agreements can address NOL carryovers:

This case should also serve as a reminder to taxpayers settling an audit or appeal through a closing agreement to carefully review how NOL carryforwards are addressed in the agreement.Taxpayers should consider their NOL situation carefully before entering into a closing agreement, and consider whether it is beneficial to request an agreement that specifies the amount of NOL carryforwards or that is silent on the issue.

In many cases, a closing agreement can address NOLs that are carried forward to years beyond those covered by the agreement (especially for unitary combined filing tax years, where the various members of a unitary group may have “siloed” NOLs). Our experience is that the Department, in some cases, is open to including a provision in a closing agreement that specifies the amount of NOLs available for carryforward out of the years covered by the closing agreement on an entity-by-entity basis. This type of agreement provides certainty to both the Department and the taxpayer regarding the total amount of net operating losses that can be carried forward.

Filing Season Reminder: Department Guidance Regarding Massachusetts Partnership and C Corporation Tax Return Filing Due Dates

Effective for tax years beginning after December 31, 2015, the due date for filing federal tax returns for C corporations and partnerships were revised.  See Public Law 114-41, the “Surface Transportation and Veterans Healthcare Choice Improvement Act of 2015”.  As shown in the table below, C Corporations now have an additional month—until April 15—to file their federal returns, whereas partnerships now have one month less to file their federal returns, which are now due March 15.

Tax Return Filing Deadlines

Prior Law New Law Effective Date
Corporation 15th day of 3rd month* March 15** 15th day of 4th month April 15 Federal: tax years beginning after 12/31/15

Massachusetts: tax returns due on/after 1/1/18***

Partnership 15th day of 4th month April 15 15th day of 3rd month March 15

*Following the close of the taxpayer’s tax year
**Calendar-year taxpayers.
*** Relief granted by TIR 17-3 and TIR 17-5.

Subsequently, the Massachusetts Legislature enacted conforming legislation to change the due dates of Massachusetts returns to match the new federal due dates.  St. 2017, c. 5, §§ 11-14.  However, the Massachusetts conformity legislation is only effective for tax returns due on or after January 1, 2018 (determined without regard to extensions), which creates a gap from the time the federal changes first take effect.  Taxpayers with Massachusetts corporate excise tax returns due during this gap period will be required to file their Massachusetts returns before their corresponding federal income tax returns are due.

To help taxpayers with Massachusetts corporate excise tax returns due during this gap period, the Department has issued guidance agreeing to waive late-filing penalties assessed against any taxpayer with a corporate excise tax return during the gap period (i.e., a return for a tax year beginning after December 31, 2015 that is due on or before December 31, 2017), so long as the taxpayer files its corporate excise tax return within one month of the statutory due date or the statutory due date on extension. See Technical Information Release (“TIR”) 17-3 (March 2, 2017) and TIR 17-5 (May 31, 2017).

Disallowance of Deduction for Interest Paid to Hungarian Affiliate Serves as a Reminder of Department’s Continued Audit Scrutiny of Intercompany Debt

A case recently resolved at the Appellate Tax Board serves as a reminder that Massachusetts’ auditors continue to aggressively challenge the following intercompany transactions:

  • Interest deductions for interest paid to foreign affiliates that are not members of the unitary combined group—even if the foreign affiliate is domiciled in a country with a comprehensive tax treaty
  • Net worth deductions for obligations to any affiliate that is classified as debt on the company’s books and records.

While Massachusetts’ adoption of unitary combined reporting ended some disputes related to intercompany debt because transactions with members of the combined reporting group are eliminated, many issues remain. Many taxpayers continue to face audit challenges to deductions from net worth related to intercompany debt obligation on the basis that the obligation is not “true debt.”  In addition, taxpayers with obligations to foreign affiliates that are not members of the water’s edge combined group are still subject to Massachusetts’ burdensome addback regime when computing the income portion of the corporate excise.  830 CMR 63.31.1.

A recently resolved appeal at the Appellate Tax Board highlights the issues facing taxpayers with obligations to foreign affiliates. In this appeal, members of the affiliated group borrowed funds from a Hungarian affiliate and deducted interest paid to the affiliate in computing the group’s combined income.  The group claimed an exception to addback on interest paid to the Hungarian affiliate because Hungary has a comprehensive tax treaty with the United States; the Hungarian affiliate was not a controlled foreign corporation; and the interest was deductible for federal income tax purposes.  The taxpayer alleged that there was valid business purpose, and the loan terms were at arm’s length.  The debtor entity also deducted the value of the loan to the affiliate when computing net worth.

At audit, the Department challenged the treatment of the intercompany debt. First, the Department argued that the intercompany loan from the Hungarian affiliate was not “true debt.”  As a result, no deduction was allowed for the interest paid to the Hungarian affiliate for purposes of computing the group’s combined income, and the obligation was not treated as a liability for purposes of computing net worth.  Second, the Department asserted that even if the loan constituted “true debt,” the interest was not deductible because the interest did not qualify for an exception to Massachusetts’ addback for interest paid to related entities.

While this case was eventually resolved before trial, the taxpayer was first required to appeal the adjustments relating to its intercompany debt all the way to the Appellate Tax Board. The case illustrates that even taxpayers with seemingly strong facts supporting an addback exception and deduction for net worth related to intercompany interest should expect pushback at audit, and therefore, should be sure to maintain sufficient documentation to show that an intercompany obligation is true debt, and that any interest paid to a foreign affiliate is eligible for an addback exception.

Filing Season Reminder: Revisions (and Challenges) to Alternative Apportionment Regulation

Any taxpayers considering taking an alternative apportionment position on its corporate excise tax returns this fall should remember that the Department adopted a revised alternative apportionment regulation, 830 CMR 63.42.1, which is applicable to the 2016 tax year.

Under the regulation, a taxpayer must file a request for alternative apportionment when it files its tax return.  However, even if a timely request for alternative apportionment is submitted, the taxpayer must still pay tax computed based on the statutory apportionment rules.  If the Department grants the taxpayer’s request for alternative apportionment, then the taxpayer must file a refund claim using the approved alternative apportionment method.

The alternative apportionment regulation sets a higher bar for a taxpayer than for the Commissioner in asserting the need for alternative apportionment.  A taxpayer seeking to use an alternative apportionment method must show by “clear and cogent evidence that the income attributed to Massachusetts using statutory apportionment does not fairly represent the extent of the [taxpayer’s Massachusetts business activity].”  On the other hand, the regulation provides the Department may assert the need to use an alternative apportionment method based on the “Commissioner’s judgment.”  There may be an opportunity to challenge the validity of these standards.  The alternative apportionment statute, G.L. c. 63, § 42, does not contemplate different standards for the taxpayer and Commissioner.  As such, the regulation may be invalid as contrary to Massachusetts statute.

SJC Holds that Drop-Shipper has Burden of Proving Sales Were Not Subject to Sales Tax; Is Liable for Tax

In D & H Distributing Company v. Commissioner, the Supreme Judicial Court (“SJC”) considered whether the taxpayer, a distributor located outside of Massachusetts, bore the burden of proving that a drop shipment to a Massachusetts customer was a “sale at retail” upon which the distributor had an obligation to collect Massachusetts sales or use tax.  The transactions at issue were drop shipments where a Massachusetts customer purchased products from an out-of-state retailer, which then directed D&H Distributing (“D&H”) to package, label, and ship products to the Massachusetts customer.  D&H had nexus with Massachusetts, but did not have warehouses in the Commonwealth.  D&H collected sales tax on transactions where the retailer making a purchase on behalf of a customer had a Massachusetts billing address and the vendor did not provide D&H with a resale certificate.

The Massachusetts statute governing drop shipments treats an out-of-state distributor with Massachusetts nexus delivering products to a Massachusetts customer, where the order is made by an out-of-state retailer not engaged in business in Massachusetts as a “sale at retail” subject to Massachusetts sales tax.  G.L. c. 64H, § 1.

The Department’s auditor identified drop-shipment transactions with a ship-to address in Massachusetts, but a bill-to address outside of Massachusetts, on which D&H had not collected Massachusetts sales tax. The auditor then eliminated those transactions where the order was placed with D&H by a retailer that D&H knew to have a presence in Massachusetts.  The Department assessed Massachusetts sales and use tax on the remaining transactions.

D&H argued that the burden was on the Department to prove the transactions included in the assessment were limited to transactions with retailers not doing business in Massachusetts. If the transactions were with retailers doing business in Massachusetts, then D&H would not be required to collect Massachusetts sales tax under the drop shipment statute.  The ATB rejected D&H’s argument, finding the drop shipment statute treated D&H as the vendor, and the Massachusetts statute places the burden on the vendor to prove that a sale of property is not a “sale at retail”.  In July, the SJC affirmed the decision of the ATB, based on reasoning similar to that adopted by the ATB in its decision.  D & H Distributing Company v. Commissioner, 477 Mass. 538 (2017) (“we conclude that the commissioner and the board correctly determined that D & H was responsible as the vendor for collecting and remitting the sales tax due on products it sold to the out-of-State retailers and then delivered to consumers where it failed to meet its burden of proving that the retailers were engaged in business in Massachusetts.”).

Hearing on August 24 regarding Massachusetts Sales Tax “Cookie” Nexus Draft Regulation for Internet Vendors

Massachusetts is looking to join a growing list of states asserting that internet vendors that lack traditional “physical presence” in a state must still collect sales tax if they have sufficient economic contacts.  But unlike states that have passed “Kill Quill” statutes that challenge Quill directly, Massachusetts takes a more nuanced approach that potentially presents a more difficult challenge for internet vendors.  Rather than attacking Quill directly, Massachusetts argues that the nature of almost any major internet vendor’s business requires them to have sufficient “physical presence” with the state to satisfy Quill.  The Massachusetts approach argues that the nature of these businesses is different than those of the catalog companies in Quill, and when combined with sufficient economic presence, results in sufficient presence in Massachusetts to permit the state to require the internet vendor to collect sales and use tax.

For example, the Department argues that the ownership or use of “cookie” can constitute sufficient in-state presences to create a sales tax obligation for an internet vendor.  The Department’s theory is currently part of a draft regulation and a public hearing regarding the regulation is scheduled for August 24 in Boston.


Massachusetts initially attempted to enforce its nexus theory through Directive 17-1.  However, in light of litigation challenging that Directive and Massachusetts’ authority to implement this change in position through a Directive, the Department revoked Directive 17-1 shortly before it was to go into effect.  See Directive 17-2 (June 28, 2017).  Then, on July 28, the Massachusetts Department of Revenue (the “Department”) issued Proposed Regulation 64H.1.7 (the “proposed regulation”) that, if adopted, would require “internet vendors” to collect and remit sales tax on sales to customers in Massachusetts.

Killing Quill or Within its Scope?

Instead of attacking Quill head-on, the Department asserts the proposed regulation does not violate Quill’s physical presence rule. Rather, the Department asserts the proposed regulation falls within the scope of Quill, arguing that internet vendors are physically present in Massachusetts because they typically:

  1. Own or use software and “cookies” located on customer computers in Massachusetts;
  2. Have contracts or relationships with content distribution networks that use in-state servers or otherwise provide services in Massachusetts; and/or
  3. Make sales through marketplace facilitators or sales involving delivery companies that provide payment processing or fulfillment services.

When these contacts are considered, it appears that the Department’s nexus theory derives, at least in part, from the United States Supreme Court decision in Tyler Pipe Industries v. Washington Department of Revenue, 483 U.S. 232 (1987).  Under Tyler Pipe, an out-of-state taxpayer can have nexus in a state if it hires a third party to engage in activities in the state that “establish or maintain a market” for the taxpayer’s sales in the state.  Id. at 250.

Tax Imposed on Internet Vendors

If vendors have any of the in-state activities described above, the vendor then has an obligation under the draft regulation to collect tax if it meets certain economic thresholds.  Specifically, the proposed regulation requires an “internet vendor” with sufficient in-state contacts to collect and remit Massachusetts sales tax for its sales to Massachusetts customers if two conditions are satisfied during the prior calendar year:

  1. The internet vendor made $500,000 or more in sales to Massachusetts customers completed over the internet; and
  2. The internet vendor completed 100 or more transactions that were delivered to Massachusetts.

“Internet vendor” is broadly defined to include vendors making sales to Massachusetts customers over the internet, regardless of whether the sales were made through the vendor’s website or through the website of a third party, such as a “marketplace facilitator.” A “marketplace facilitator” “facilitates sales . . . through a physical or electronic marketplace” it operates.  Earlier this year, both Minnesota and Washington enacted legislation imposing sales tax obligations on online marketplaces.  Most recently, one chamber of the Pennsylvania Legislature passed legislation that would also impose sales tax obligations on online marketplaces.

Broader Reach than Directive 17-1?

The proposed regulation appears have a slightly broader scope than Directive 17-1.  The Directive asserted that “ownership and use” of software in Massachusetts constituted physical presence in Massachusetts.  In contrast, the proposed regulation seems to go further by asserting that a vendor could have Massachusetts nexus based merely on having a “property interest” or “use” of software in Massachusetts.  Thus, even if an internet vendor does not actually own or have a property interest in software (including cookies) located on a computer in Massachusetts, it could still have nexus as a result of the use of software owned by others on a computer located in Massachusetts.

The Internet Tax Freedom Act

In addition to addressing the Commerce Clause issues implicated by the proposed regulation, the Department asserts that the proposed regulation does not violate the Internet Tax Freedom Act (“ITFA”).  P.L. 105-277 (1998).  ITFA prohibits the states from enacting “discriminatory” taxes on internet commerce.  A “discriminatory tax” is defined in several ways, including as a tax on transactions consummated in e-commerce that is not imposed on equivalent transactions consummated through traditional commerce.  The Department asserts the proposed regulation does not violate ITFA because the same transactions would be subject to tax regardless of whether they were consummated through e-commerce or traditional commerce.  It seems likely that the Department included the discussion of the application of the standards set forth in the proposed regulation to traditional commerce in response to the declaratory action filed against Directive 17-1, which asserted that the Directive violated ITFA.  In any event, the Department has made an ITFA challenge to the proposed regulations more difficult by expressly finding that the nexus standard set forth in the proposed regulation applies to non-internet vendors.  However, there are very few cases (both at the state and federal level) adjudicating claims under ITFA, thus making it difficult to predict how a court would apply ITFA to the proposed regulation.

What’s Next?

The Department’s proposed regulation is markedly different from the “kill-Quill” legislation, and regulations adopted in other states, like South Dakota and Alabama.  Whereas the laws and regulations adopted by other states have been premised on Quill’s physical presence rule supposedly being outdated, the Department has taken a different approach by asserting that the proposed regulation is permissible because most large internet vendors have an in-state presence that satisfies Quill’s physical presence rule.  We expect other states may consider following the same approach as Massachusetts in justifying new legislation or regulation aimed at taxing internet vendors.  In addition, with the rise of laws and regulations addressing online marketplaces, we expect future litigation to address restrictions on state taxing authority beyond the Commerce Clause, including ITFA and the Due Process Clause of the United States Constitution.

Massachusetts Appellate Tax Board denies Multiple Points of Use sales tax refund claims

The Massachusetts Appellate Tax Board (“ATB”) has issued an order denying three sales tax refund claims involving multiple points of use (“MPU”) sourcing.  In each case, vendors had filed refund claims arguing that their customers were eligible for refunds of sales tax charged on the full sales price of software delivered to Massachusetts to the extent the software was actually used by the customer’s employees outside of Massachusetts.

Massachusetts has issued regulations that permit vendors to apportion the sales price for certain sales of software delivered to a customer in Massachusetts for sales and use tax purchases using multiple points of use (“MPU”) apportionment.  830 CMR 64H.1.3(15).  Under MPU apportionment, if a customer can provide documentation to the vendor that establishes that software delivered to Massachusetts is actually used in multiple states, then the vendor is relieved of its obligation to collect and remit Massachusetts sales tax on the software, and the customer is only required to remit  Massachusetts use tax on the portion of the sales price for the software attributable to use of the software in Massachusetts.

There is no question that MPU apportionment is permitted in Massachusetts, when claimed at the time of sale. However, over the past few years many taxpayers have been surprised when the  Department of Revenue (the “Department”) denies sales tax refund claims claiming MPU apportionment filed by vendors on their behalf.

According to petitions filed by the vendors with the ATB, the Department denied the refund claims based on a procedural technicality. Specifically, the vendors allege that the Department did not grant sales tax refunds applying MPU apportionment because the customers did not provide the vendor with an MPU certificate or other acceptable documentation of multiple points of use before the vendor remitted the tax to Massachusetts.  The Department’s position is that once the tax is remitted by the vendor, a customer loses its ability to claim MPU apportionment.  While there is some support for the Department’s position in its regulation, it is our view that the Department’s position is in conflict with statutory authority, as well as the Department’s own policy regarding other types of sales tax exemption certificates.  (Click here to view our prior alert on the issue and how that policy contrasts with the Department’s treatment of similar exemption certificates).

Several vendors have filed appeals with the ATB, challenging the Department’s denial of MPU refund claims filed on behalf of their customers, and on May 22, 2017, the ATB issued its first order in an MPU apportionment appeal. That order upholds the Department’s denial of the vendor’s refund claims.  See Oracle USA, Inc. et. al v. Commissioner of Revenue, Appellate Tax Board Dckt Nos. C318441, C318442, and C327798 (May 22, 2017).

Our understanding is that the ATB has received a request to publish a full opinion detailing its basis for denying the taxpayer’s refund claims.  This opinion will provide more detail regarding the ATB’s thinking and whether it upheld the denial of the refund claim on the basis that the MPU documentation was not provided prior to the remittance of tax, or some alternative theory.