田纳西州税务部门发布了一份修订后的信件裁决，编号. 20-07(十月八日, 2020), addressing whether an entity was 在田纳西州做生意 so as to be subject to the state’s excise (income) and franchise (net worth) taxes, http://www.tn.gov/content/dam/tn/revenue/documents/rulings/fae/20-07fe.pdf. The taxpayer at issue was a financial institution engaged in the business of owning mortgages in Tennessee and receiving payments on those mortgages. The taxpayer relied on an independent investment manager and independent mortgages brokers to obtain those mortgages. 结果是, some of the mortgages from which the taxpayer received payments were secured by real property located in Tennessee and some of the borrowers were residents of Tennessee.
Tennessee’s statutory definition of “doing business” is very broad and encompasses “any activity purposefully engaged in within Tennessee by a person with the object of gain benefit, 或优势.” Tenn. Code Ann. Sec. 67-4-2004(14)(A). Moreover, the definition states that it is the “intent of the Tennessee General Assembly to subject such persons to the Tennessee franchise/excise tax to the extent permitted by the United States Constitution and the Constitution of Tennessee.” Id. So at first blush, it would appear that the taxpayer was clearly 在田纳西州做生意, right? 例如, surely the taxpayer was engaged in the mortgage business with the object of monetary “gain, benefit, 或优势.” And with Tennessee’s stated intent to assert nexus as broadly as Constitutionally permissible, it would appear that the taxpayer’s activities would fall squarely into the “doing business” definition. 关注大局, 纳税人的业务是从抵押贷款业务中赚取收入, which included Tennessee borrowers and loans secured by real property located in Tennessee.
然而，财政部裁定这位纳税人是 not 在田纳西州做生意. 为什么会有这样的结果呢?
While Tennessee’s definition of “doing business” is indeed very broad and presumably easy to meet, 有一些法定的免责条款明确规定了某些活动 排除在 宽泛的“做生意”保护伞. These “safe harbors” – some of which have been in the statutes for a number of years – apply to specific factual instances and are set forth in detail in the Tennessee Code. One of the safe harbors applies to financial institutions whose only in-state activity “is the ownership of …[a]n interest in a loan, lease, note or other assets attributed to [Tennessee] and in which the payment obligations were solicited and entered into by a person that is independent and not acting on behalf of the owner.” Tenn. Code Ann. Sec. 67-4-2004(14)(C). The ruling examined all the relevant facts and concluded that the taxpayer’s business activities were indeed limited to those outlined in this specific carveout. 结果是, the entity was not 在田纳西州做生意 and was not subject to the excise and franchise taxes.
这项裁决强化了这方面的一个重要教训 post-Wayfair 减少商业条款审查的时代，降低联系门槛等. It may be easy for taxpayers in 2020 to assume they have triggered nexus and an income tax filing obligation based on the slightest level of economic activity occurring in a state. That has certainly been the trend with state and local taxation in the past few years. Many states have enacted factor presence provisions for their income/gross receipts tax schemes similar to those that were widely enacted for sales tax purposes following the US Supreme Court’s 2018 Wayfair decision. 根据这些因素的存在规定, taxpayers exceeding a certain level of sales sourced to a state as determined for apportionment purposes will generally be deemed to have triggered nexus and created a filing requirement in that state. So far approximately 14 states have enacted such provisions (including Tennessee) for their income/gross receipts taxes, 预计会有更多州效仿.
However, it may not always be correct to assume you have triggered nexus based on economic activity within a state or exceeding a certain dollar threshold of sales. Always be sure to thoroughly examine a state’s nexus and “doing business” statutes and regulations before acceding to nexus. 就像第20-07号裁决中那个幸运的准纳税人一样, you may find that there are exclusions to these generally very broad imposition and nexus provisions that keep you from paying a tax you might otherwise think applies.
内容由LBMC州和地方税专家Jay Hancock提供.
杰伊·汉考克是 州和地方税 实践领导者. 联系他的电话是615-690-1982或 jay.hancock@grandhotelstefoy.com.
LBMC tax tips are provided as an informational and educational service for clients and friends of the firm. The communication is high-level and should not be considered as legal or tax advice to take any specific action. Individuals should consult with their personal tax or legal advisors before making any tax or legal-related decisions. 除了, 所提供的资料和数据基于被认为可靠的来源, 但我们不保证其准确性或完整性. The information is current as of the date indicated and is subject to change without notice.