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Gave a presentation for NBI on “Drafting & Negotiating Risk Allocation Provisions in Tennessee” https://lnkd.in/dZn6vMm

Tennessee’s New Rules For Out of State Dealer’s Sales Tax Collection

On June 5, 2019, the Tennessee Department of Revenue released updated guidance regarding sales tax collection from out of state dealers.  This guidance is in response to the June 21, 2018, US Supreme Court decision in the South Dakota v. Wayfair case which overruled Quill Corp v. North Dakota (1992) and National Bellas Hess v. Department of Revenue of Ill. (1967), and thus erased long standing precedent in the area of sales and use tax collection.

Under those prior cases, a state could not compel a business to collect sales tax if that business had no physical presence in the state.  Instead, consumers paid a use tax that is equivalent to the sales tax.  However, as noted by the Supreme Court, “Consumer compliance rates are notoriously low” and South Dakota lost “between $48 and $58 million annually.”  Moreover, the physical presence rule has been seen to give out of state sellers an unfair advantage.

Tennessee, like South Dakota (the state at issue in the Supreme Court decision) has no income tax and must rely heavily on the sales tax, and therefore had a strong incentive to seek a change in the precedent.

The Supreme Court decided that the nexus requirements of the Commerce Clause were satisfied by South Dakota’s act since the act only applied to sellers that delivered substantial goods or services into South Dakota.  It found that South Dakota’s system “includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce” since the South Dakota law has a safe harbor for those that conduct limited businesses, the law isn’t retroactively applied, the Streamlined Sales and Use Tax Agreement was utilized, and free software provided.

As expected, Tennessee has quickly enacted rules to take advantage of this change in the law.  Similarly, the Tennessee rule is not retroactive, and does have a sales threshold ($500,000.00 but does not include wholesale sales), and also utilizes streamlined.  Of note, however, the new rules require that the dealers know the proper local option sales tax rather than being able to use some uniform number, so out of state dealers will have to refer to the boundary database provided (or more likely use software).

The new rules are here:

• 19-04 – Post – Wayfair Collection by Out-of-State Dealers (June 2019)
• 19-05 – Local Sales Tax Reporting by Out-of-State Dealers (June 2019)
• Frequently Asked Questions

International Tax Law Changes and the Surprisingly International Tennessee

Tennessee has many international ties that often surprise practitioners. Some of the largest multinational companies in the world are headquartered here, and more than 147,000 Tennesseans are employed by foreign-based companies. In fact, Tennessee is the number one state for jobs created through foreign direct investment. Tennessee has frequently earned top marks for its business-friendly environment, and it is likely to be the beneficiary of increased investment by U.S. For more, go here for my latest article (I am a co-author):
http://www.tba.org/journal/new-tax-act-brings-major-changes-to-us-international-taxation-system

Kill Quill Succeeds: Supreme Court Overturns Sales Tax Precedent

On June 21, 2018, the US Supreme Court, in the South Dakota v. Wayfair case, overruled Quill Corp v. North Dakota (1992) and National Bellas Hess v. Department of Revenue of Ill. (1967), and thus erased long standing precedent in the area of sales and use tax collection.

Let’s first start with outlining the issues: Under the Quill and Bellas Hess cases, a state could not compel a business to collect sales tax if that business had no physical presence in the state.  Instead, consumers paid a use tax that is equivalent to the sales tax.  However, as noted by the Supreme Court, “Consumer compliance rates are notoriously low” and South Dakota lost “between $48 and $58 million annually.”  Moreover, the physical presence rule has been seen to give out of state sellers an unfair advantage.  As such, the Supreme Court found that the rule has become “further removed from economic reality and results in significant revenue losses to the States. These critiques underscore that the rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause.”  E-commerce has made this issue particularly difficult in regards to the physical presence rule as it “ignores substantial virtual connections to the State.”  It should be noted that like Tennessee, South Dakota has no income tax and must rely heavily on the sales tax, and therefore had a strong incentive to seek a change in the precedent. In fact, according to the Supreme Court, “Forty-one States, two Territories, and the District of Columbia have asked the Court to reject Quill’s test.”

Next, let's discuss the underlying legal principal at stake, i.e. the Commerce Clause contained within the U.S. Constitution:  According to the Supreme Court in Wayfair, “Two primary principles mark the boundaries of a State’s authority to regulate interstate commerce; State regulations may not discriminate against interstate commerce; and States may not impose undue burdens on interstate commerce. These principles guide the courts in adjudicating challenges to state laws under the Commerce Clause." The Supreme Court did note that if the U.S. Congress actually passed legislation in this area it would be controlling, but it remains to be seen if any such legislation will be passed, at least in the near term.

Next, let’s look at the South Dakota Act itself.  First, it only applies to sellers that annually deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions that deliver goods or services into the State. Secondly, it does not impose a retroactive sales tax.  Third, South Dakota adopted the Streamlined Sales and Use Tax Agreement.  The state provides free sales tax administration software to businesses.

The Supreme Court decided that the nexus requirements of the Commerce Clause were satisfied since the Act only applied to sellers that delivered substantial goods or services into the State.  It found that South Dakota’s system “includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce” since the South Dakota law has a safe harbor for those that conduct limited businesses, the law isn’t retroactively applied, the Streamlined Sales and Use Tax Agreement was utilized, and free software provided.

As for the effect of this decision, it is likely that many states will work to quickly enact compliant legislation in order to expand their sales tax collection, and will likely model their statutes after South Dakota to avoid undue burden issues.  It will be interesting to see if the Supreme Court is correct that the elimination of the physical presence rule will encourage more physical “storefronts, distribution points, and employment centers,” since sales tax collection will not be able to be so easily avoided (by not having a physical presence) for larger sellers in states that adopt statutes in compliance with this decision.

Tax Reform and Sole Proprietorships, Partnerships and S Corporations

Much attention has been paid to the doubling of the standard deduction as well as the lowering of the corporate tax rates contained in the Tax Cuts and Jobs Act of 2017 (the “Act”).  The corporate federal rate will now be 21 percent and there is a maximum dividend rate of 23.8 percent (combined would be 39.8 percent (79 percent times 23.8 percent plus 21 percent)) and the top individual tax rate is 37 percent, which is the rate generally applied to the income of pass-through businesses (sole proprietorships, partnerships, and S corporations).  As such, in order to keep some of the advantages of a lower rate of pass-through businesses, complex changes  are contained within the Act.  Careful attention will need to be made to see whether particular pass-through businesses can benefit from the Act and thus reduce their taxes by several percentage points.  Contained herein is a brief overview which can serve as a high-level guide.  However, please note that some of the information contained herein may change based upon future IRS guidance, and the exact effects on certain transactions and entities, such as like-kind exchanges, tiered entities, and trusts and estates, are not currently known (although the Act directs the IRS to develop guidance for these areas).  As you will see, these changes are surprisingly complex even without any of the regulations, and careful attention will need to be paid to the various calculations contained therein.  Moreover, not all pass-through businesses will be able to benefit, but some may be able to see at least some modest reductions.

At the outset it should be noted that an actual entity formed under state law, e.g., a limited liability company or a limited partnership, is not required to take advantage of the Act’s provisions.  So sole proprietorship and common law partnerships would be able to take advantage of the additional deductions, provided that they otherwise meet all of the requirements contained under the Act.  Limited liability companies that have a single member can elect corporate taxation or can keep the default classification of being treated as disregarded, and thus as a sole proprietorship.  Multiple member limited liability companies can elect corporate taxation, or they can keep their default classification as a partnership.  Obviously, any limited liability company that elects corporate taxation but does not elect to be an S corporation will not be a pass-through entity and as such the provisions discussed herein would not apply.

Under the tax law for tax year 2017, individuals who receive pass-through entity income are taxed on that income at their individual rates.  Partners and S corporation shareholders are taxed on their share of the income regardless of whether or not the income is distributed to them and sole proprietorships are not treated as separate from their owner and are taxed accordingly.

The Act adds a new code section, 199A, that allows a deduction by individuals of up to 20 percent for certain domestic qualified business income from pass-through businesses.  Therefore, for those businesses that fully qualify, their rates would be reduced from 37 percent to 29.6 percent.  199A applies to tax years after December 31, 2017 and before January 1, 2026.  The deduction is available to individuals who itemize as well as individuals who claim the standard deduction, but is subject to phase in or elimination if taxable income exceeds certain thresholds or for certain service trades or businesses.  Performing services as an employee does not count as a qualified trade or business.  Exactly what types of business qualify as a trade or business will need to be better specified with regulations, particularly with rental properties.

The deduction amount is calculated as follows, and is the lesser of:

1. The combined qualified business income amount (income, gain, deduction, and loss effectively connected to a trade or business within the United States and included for determining taxable income are qualified), or
2. Twenty percent of the excess of the individuals taxable income over the sum of (i) that individual’s net capital gain under IRC 1(h) and (ii) that individual’s aggregate cooperative dividends.

PLUS
The lesser of:

1. Twenty percent of the individual’s aggregate qualified cooperative dividends, or
2. The individual’s taxable income minus that individuals net capital gain.

The deduction cannot be more than the individual’s taxable income, reduced by net capital gain, for the tax year.  For purposes herein taxable income is determined without regard to the 199A deduction.  Note that cooperative dividends cover a variety of different business cooperatives, such as cooperative telephone companies, and as such there are special rules under 199A for claiming these deductions.

The combined qualified business income amount for a tax year equals:

1. The sum of deductible amounts for each qualified trade or business of the individual, plus
2. Twenty percent of the individual’s aggregate qualified REIT dividends and qualified publically traded partnership income.

This deduction is limited to the greater of:

1. Fifty percent of W-2 wages (wages that qualified trade or business paid to its employees and include certain deferrals) paid by the business; or
2. The sum of 25 percent of the W-2 wages plus 2.5 percent of unadjusted basis of certain property that the business uses to produce the qualified business income.

However, this limitation does not apply if the individual’s taxable income for the tax year is equal or less than $157,000.00 or $315,000 for a joint return.  For single filers who make more than $157,500 and less than $207,500, there is a phase in of the limitation, and for joint filers who make more than $315,000 but less than $415,000 there is also a phase in.  The purpose of this limitation is to try to prevent abuse.  As an example, it prevents employees quitting their jobs, setting up S corporations that contract with their old employer, and then not pay themselves a salary, and thereby convert their salary into Qualified Business Income and obtain the lower rate.  In this case, since the S corporation would have no W2 wages and no applicable property, then the limitation would be zero, and as such no deduction allowed.  The 25 percent and 2.5 percent of unadjusted basis of certain property was added late into the bill to allow certain rental property owners to still claim a deduction if they could not otherwise qualify under the 50 percent limitation.  However, it is not completely clear which rental activities rise to the level of a trade or business.

Certain specified service trades or businesses cannot claim the 199A deduction, and those businesses are in the fields of accounting, actuarial science, athletics, brokerage services, consulting, financial services, health, law, performing arts; investing and investment management, trading, dealing in securities or dealing in partnership interests or commodities.  In addition, those businesses whose principal asset is the reputation or skill of one or more of its employees or owners also cannot claim the 199A deduction.  However, a modified qualified business deduction may be claimed even for a specified service trade or business if the taxable income for the tax year is less than $415,000 for taxpayers filing a joint return or $207,500 for all other taxpayers.

Code Section 199A regarding pass-through businesses contains new provisions that will have to be carefully analyzed, particularly all the various calculations for both deduction amounts as well as for the limitations, phase-ins and modifications.  One takeaway from this article is that the choice of business entity has now become more complex, and that pass-through entities might not always be the best answer if the business owner(s) cannot qualify for the lower pass-through rate.  In the coming months it can be expected that many new rules and regulations will be issued to better define the new concepts under 199A that will hopefully allow for more precise calculations and planning. 

Does the Republican’s Estate Tax Repeal Plan Affect Community Property Trusts?

In 2010, Tennessee became the second state to create an elective community property system through community property trusts. Community property is a system of ownership that provides for equal ownership between husband and wife. However, the property in this type of trust would be subject to the creditors of both spouses. Community property trusts therefore are different than tenancy by the entirety, whereby property held by husband and wife as tenants by the entirety are immune from the creditors of only one spouse (although they are not immune from creditors of both spouses jointly, or if the non-debtor spouse dies first).  

Why would a couple give up tenancy by the entirety protection?  Generally, for tax purposes, i.e., a double step in basis.  Without a community property trust, when one spouse dies there is only a half step-up in basis typically with property owned jointly.  With a community property trust it is possible to receive a full step up on the death of one’s 'spouse for property owned jointly.  Here’s an example: assume Mary Smith and John Smith bought a rental house for $100. At Mary Smith’s death, the property has appreciated in value to $200. If the property is sold at that point for $200 there would be a 50% step up in basis, so there would be tax on $50 of gain ($100. basis plus $50 step up).  If the property had instead been in a community property trust, there would be a full step up at Mary Smith’s death and there would be no tax if the property sold for $200. There would be another full step up at the time of John Smith's death.

A Tennessee community property trust is set up if one or both spouses transfer property to a trust that:

1. expressly declares that the trust is a Tennessee community property trust;
2. has at least one trustee who is a qualified trustee and whose powers include, or are limited to, maintaining records for the trust and preparing or arranging for the preparation of any income tax returns that must be filed by the trust (both spouses or either spouse may be a trustee);
3. is signed by both spouses; and
4. contains the following language in capital letters at the very beginning of the trust document: THE CONSEQUENCES OF THIS TRUST MAY BE VERY EXTENSIVE, INCLUDING, BUT NOT LIMITED TO, YOUR RIGHTS WITH YOUR SPOUSE BOTH DURING THE COURSE OF YOUR MARRIAGE AND AT THE TIME OF A DIVORCE. ACCORDINGLY, THIS AGREEMENT SHOULD ONLY BE SIGNED AFTER CAREFUL CONSIDERATION.  IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, YOU SHOULD SEEK COMPETENT ADVICE. 

Tenn. Code Ann. § 35-17-103. 

The issue with the current Republican tax proposal is not in regards to the technical set up of the trust in accordance with the above, and not even in regards to the ability to have elective community property treatment.  Instead, the issue is that it is unclear if the proposal is passed whether or not there would still be a step up in basis at the death of the first spouse.  The reason is that this double step up requires the property to be subject to the estate tax (or fall under the credit amount).  Without an estate tax, it is unknown whether this double step up would be available.  Therefor, more information will need to be forthcoming as the bill or bills progress, but this is definitely a situation that should be monitored by those who have or are contemplating a community property trust.  Fortunately, if the double step up is no longer available, community property trusts are revocable, and as such the property could be deeded out and into a trust that has treatment similar to tenancy by the entirety.

See the article at: Stites & Harbison Learning Center

An expanded version of my article on Trump's death tax proposal, as published on Law360:

Estate And Gift Taxes Under Donald Trump: A Preview

Many aspects of President-elect Donald Trump’s tax plans are still unclear. But proper estate planning will still be important. Michael Goode of Stites & Harbison PLLC considers what lies ahead with regard to estate and gift taxation, including a prohibition on some transfers to closely held family charities, incentives to keep taxable estates within the family, and whether or not the gift tax will be repealed. 

http://www.stites.com/learning-center/articles/estate-and-gift-taxes-under-donald-trump-a-preview