"darkness is death"

Time change. Daylight savings time. Fall back. Spring ahead. However you describe it, most (if not all of us) changed our clocks recently. We either gained an hour or lost an hour (depending on how you look at it), but one thing I do know - I've lost daylight. So I'm not sure how this is "daylight savings" time. I don't like to complain, but I just do. So I'll just say that I really like sunlight and dislike darkness. As they said in a cartoon movie I can't remember the title of right now - "Darkness is Death."

Regardless of how you feel about changing your clocks or sunlight or darkness, one thing is certain, times continue to change. The way business is conducted continues to change. New technologies are created (whether that's good or bad; or will be used for good or bad is yet to be seen). And last but not least, state tax legislation continues to change; and court cases and rulings continue to be made which ultimately create certainty and uncertainty. Wait, what? What did you just say?

Yes, new legislation, court cases and rulings create just as much uncertainty as they do certainty.

Well, that's great.

Just as each company's facts and circumstances differ, state tax laws seem to have a life of their own when the answer isn't "black and white" (which is most of the time); or when each state's laws are different. This creates a world of grey (or some may say, "darkness"). This "darkness" is why I say every state tax question is a research question. (A research question that needs to be solved by a human (not A.I., AI or artificial intelligence, just saying)).

Darkness is debilitating. It's hard to drive in the dark without headlights. It's hard to walk in the dark without a flashlight. Darkness creates fear and uncertainty. Darkness creates unknown risks. Thus, light is needed to move forward with some level of assurance and confidence.

Darkness can also create unknown opportunities. You can't see them. This requires faith. A compass. A navigator. A roadmap.

"Darkness" in the state tax world surrounds several areas and questions companies continually ask:

• what states do I need to file tax returns in?

• is what I'm selling subject to sales tax?

• which entity in my affiliated group of companies is required to file the tax return?

• if I sell my interest in this partnership, to what states do I source the gain and have to pay tax?

• I'm selling services all across the United States. How do I source those sales to each state in the apportionment factor of my income tax returns?

• do I really have to get exemption certificates from my customers?

• do I have to register with a state for sales tax purposes to provide a vendor with that state's resale exemption certificate or can I use a multijurisdictional certificate?

• am I required to file combined income tax returns or does every entity file separately?

• should I make this election or that election?

• do I qualify for these tax credits?

• do I have to collect sales tax on my total gross receipts or can I deduct costs reimbursements or costs that I flow-through and pay to someone else?

• how do I know if we really meet the requirements to be protected from a state's income tax by P.L. 86-272?

• I didn't even know that state had a gross receipts tax.

• what is a franchise tax and why is the tax base so high?

• am I really selling SaaS and does the state tax it?

• should I make a state's pass-through entity tax election? How do i quantify or model the impact? Will it be beneficial for all partners and shareholders?

• should I file a Voluntary Disclosure Agreement (VDA) or simply start filing returns?

• should I request a Private Letter Ruling (PLR)?

• should I challenge (protest) this audit assessment or simply pay it and move on?

• when can I stop filing returns in a state?

• how do I dissolve or withdraw from a state?

• is registering with a state's Secretary of State's Office the same thing as registering with a state's Department of Revenue (taxation)?

• what sales tax compliance software should I use? Should I outsource the return prep to a third-party?

I could keep going, but I think you get the point. The darkness is everywhere.

Finding the light in the state tax world is not easy.

Unlike darkness in life where you can just flip the light switch and see, darkness in the state tax world takes research and analysis and judgment based on experience. And even then, the answer may not be clear (still dark or grey).

Consequently, I think the "light" is finding the right-fit state tax consultant that you trust and like working with. Someone with not only the technical knowledge and experience, but the ability to look at an issue from 2 feet and 50,000 feet. To be technical and practical. To look at the risk and provide judgment. To reduce risk. To recommend positions with the proper level of assurance. Knowledge. Judgment. Advocacy. That is the light in the proverbial darkness. The compass. The roadmap. The flashlight. The headlight.

I hope you find the light you need to move your company and clients forward.

If you are a state tax consultant, I hope you "shine brightly."

QUOTES

"The art and science of asking questions is the source of all knowledge." - Thomas Berger

"The prize goes to the person who sees the future the quickest." - William Stiritz

"We are drowning in information and starved for knowledge." - John Naisbitt

knowing what questions to ask and how to move forward

Over 20 years ago I was introduced to Tony Robbins and his books. This week I started reading "Awaken The Giant Within" again. I actually started with the chapter entitled, "Questions Are The Answer." The idea or thought is that questions have the power to focus our attention and direct our path. Ask the wrong questions and you will go down the wrong path. Questions cause us to think about certain things (positive or negative) depending on the question. Questions not only cause us to drill down on a person, place, thing, etc. but questions also cause us to "delete" (as Tony says in the book) or not think about certain things or think about things in a certain way.

Tony says:

• "the difference between people is the difference in the questions they ask consistently."

• "Questions determine everything you do in life, from your abilities to your relationships to your income."

Quotes Tony put in the book:

• "Always the beautiful answer who asks a more beautiful question." - E.E. Cummings

• "Some men see things as they are, and say, 'Why?' I dream of things that never were, and say, 'Why not?'" - George Bernard Shaw

QUESTIONS AND ANSWERS IN STATE TAX

After reading that chapter, and I got immersed in work this week, I often thought about the questions and answers I get in my work.

State tax consultants are faced with unique fact patterns and grey tax law which causes us to have to ask the right questions to get the right answer or conclusions. If you never ask the right question you may not uncover a significant fact that could change the conclusion. If you don't know where to look (research) you may never find the regulation, statute, court case or ruling that would alter the position your client or company was going to take.

Positions that a company makes are not just words on paper, they are real dollars. This is important and not just business. It's personal.

The positions a company takes (or doesn't take) have a financial impact on a company. The positions can determine whether a company has the funds to make investments or even keep operating. So understanding and identifying the facts that matter and the legal authority to stand on is not only part of the job, it is the job.

• Ask the Right Questions = Get the Right Answers

• Knowing what to ask, what facts are important, where to look, how to search, filtering through the trees to find the path or the one tree to climb - that's what I call experience and judgment.

• Never giving up, looking at every angle, gaining new perspectives, thinking outside the box - that's what I call advocacy.

I call all of the above "leverage."

This week I've been working on several projects with unique fact patterns and grey tax law (as I'm sure you have as well). Each one causing me to do all of the above. But what do you do when do all of the above and you still have questions?

That's when you have to reach conclusions with certain levels of assurance AND still provide your clients with recommended courses of action. Those recommended action steps should seek to reduce risk and uncertainty and/or take positions that have a level of assurance that supports taking the position.

Some potential courses of action may be:

• taking the position and filing amended returns (refund claims)

• requesting a Private Letter Ruling (PLR)

• filing a Voluntary Disclosure Agreement (VDA)

• documenting the file with a technical memorandum and taking the position

These complex positions and decisions can arise out of the basic areas of state taxation such as:

• whether a company has nexus (a taxable presence) in a state.

• determining whether a state imposes sales tax on what a company is selling.

• how to source a company's sales by state for both income tax and sales tax purposes.

• determining if a specific election to file a return in a certain way should be made.

• And many more......

I've been in the tax profession for 28 years and all of the complexity and never-ending change has been part of the intrigue AND pain. It can be positive and negative. The answers you give clients can be positive and negative.

• Risk management is not the fun part of the job.

• Getting clients refunds = fun.

• Telling a client they need to file historical tax returns and pay a lot of money = not fun.

• Winning an audit protest and saving the client thousands of dollars = fun.

• Telling a company to pay historical tax and interest (even if you reduce the number of tax years and eliminate penalties) = not fun.

So there are fun and not so fun parts of the job. There are easy and difficult conversations to be had. Thus, knowing what questions to ask AND then knowing how to move forward after you get the answers - that is the key. That is the "LEVERAGE."

what the "salt"?

Back in the early days of my career and marriage (in Decatur, Illinois), my wife and I grabbed some lunch from a fast-food joint and drove down to the lake. It was a little chilly that day, so we just stayed in the car while we ate and looked out over the lake. The sun made it feel a little warm in the car, so we kept all of the windows slighly cracked open. It was a beautiful day until............

All of a sudden, we heard a "caw, caw" as a flock of birds were flying over and then........."woosh." The flock of birds had decided to drop a bomb on us all at once. The whole car was covered in (you guessed it) bird poo. It smelled so bad. It was everywhere. Oh yeah, did I mention, the windows were all slightly open? So some of the bird poo got in the car and we could definitely smell it really good.

We immediately rolled the windows up .Then drove (a long way) to the closest car wash we could find. All the while, waving at people as we drove down the road with my car covered in bird poo. Good times.

What's the point of this story?

How does this have anything to do with state taxes?

Well, just as in life, you could have a great plan for your business and think everything is going splendid. Things could be going smoothly, running like clock work and then, "bam." Surprise - here's an audit. A notice. Or you wait until you decide to sell the company and during the due diligence process you learn that your company has historical tax liabilities or exposure that the buyer wants you to clean-up or adjust the purchase price.

There are a lot of grey areas and uncertainties in state tax law that impact busineses of all sizes. Unfortunately, these uncertainties if unaddressed can creep up on you and drop a bomb when you least expect it.

HOW DO YOU ELIMINATE STATE TAX RISK?

There are proactive measures a company can take such as a nexus review, taxability review, performing reverse audits, etc. Then the company can make an informed decision as to the best methods to resolve or move forward.

The situation that complicates the risk analysis is when you know the position is going to be reviewed by a potential buyer of the company in the near future.

If undergoing due diligence, how do you prove to the buyer (and their accounting firm) that the risk does not exist?

What if the state's law and rulings do not provide concrete or consistent guidance?

Do you seek a private letter ruling request or simply document the position in a memorandum for the file and hope the buyer (and their accounting firm) under due diligence will remove the risk?

As an advisor to both sellers and buyers during due diligence, I am always an advocate for the party I am advising. I always support the company's positions with all available legal authority. Sometimes its clean-cut. Sometimes it's not.

However, even when there is substantial authority, if you can't get to "more likely than not," would you advise the buyer to conclude there is no risk? Would you advise the buyer to not hold money back in escrow or reduce the purchase price or insert some other protection into the agreement?

Despite a history of not filing based on a nontaxable position and the fact that the company has not received any contact (notices, assessments, etc.) from the state, will the buyer agree no risk exists?

Even if there is substantial authority, a buyer (and their accounting firm) may still disagree.

So is the company's best course of action to request a private letter ruling?

If the company wasn't considering a sale in the future, you may simply document the file and let "sleeping dogs lie." But since the company is considering a sale in the future and you don't want the issue to be a sticking point under due diligence, you may advise the company to pursue the ruling request.

The side benefit of pursuing a ruling request is that the company will gain some level of certainty even if the company never sells. I say "level of certainty" because a ruling is only as good as the facts presented and the law at the time of the ruling. If the facts aren't accurately communicated, the conclusion could be disputed.

Awww, the fun of state taxes.

QUOTES TO CONSIDER

"If you choose not to decide, you have still made a choice." - Geddy Lee

"The way we see the problem is the problem" - Stephen R. Covey

"Most see what is before them; the strategic leaders sense what is around the corner." - Kirby Martzall

"In the bullfight, the bull perceives the cape as the problem, but it is the sword that kills him. Are you chasing the cape or the sword?" - Mike Bell

are court case decisions worthless?

I attended the Paul J. Hartman State and Local Tax Forum this week. It was the 30th anniversary of the Forum. I’ve attended the conference over the years multiple times. Good conference. Knowledgeable, esteemed and respected speakers (lawyers). These lawyers handle some of the top state and local tax cases and litigation around the country. They also seem to be the same lawyers that speak at ALL of the conferences, so you’ve probably heard of them or met them.

As I was sitting in one of the sessions, the panel of speakers was going back and forth talking about court cases. One of the attorneys was explaining a specific case that the tax practitioner community was looking to as having broad applicability and authority to not only the state and taxpayer involved in the case, but every taxpayer and every state. He explained the facts and issues in the case and did confirm the ruling’s final decision and applicability, etc. However, he also said he disagreed with the ruling and mentioned the dissenting opinion. He thought the reasoning in the case was incorrect and thus, the conclusion was wrong and should be challenged.

Other speakers (attorneys) on the panel mentioned how the case was precedential and should be considered authoritative and reliable for taxpayers. The first attorney still disagreed with the conclusion and seemed to infer that taxpayers should not follow the court case.

That’s when it hit me, a strange epiphany - should taxpayers follow court case rulings?

Can taxpayers follow court case rulings? Yes, the facts matter. Yes, the states involved matter. But if a taxpayer’s facts line up with the facts in a ruling, shouldn’t the taxpayer be able to follow the case’s decision? Or should every taxpayer have to determine on their own, or make another judgement call regarding whether the case was decided correctly?

When does a taxpayer get a clear roadmap?

When does a taxpayer get certainty when the path always seems to be grey?

Taxpayers and state tax practitioners deal with vague statutes and regulations. State notices, publications, letter rulings, and court case decisions are supposed to provide clarity (which they generally do), but if taxpayers can’t follow court case decisions, then what good is a court case decision?

I know, I know, court case decisions are often appealed and I am not talking about those. I’m talking about court case decisions that are final (no appeal) and appear to be settled (until the next challenge). Can taxpayers rely on those decisions?

I also know that states often change their statutes or regulations after a court case if the state disagrees with the ruling or wants to limit its applicability (let’s not even talk about retroactive legislation - which I’ve done in the past).

Every question in the state tax profession is a research question due to the number of jurisdictions, the lack of uniformity and unique client fact patterns. The search to find answers and provide certainty is a daily challenge. If taxpayers and tax practitioners can’t rely on court case decisions, then what can we rely on?

Welcome Back

It’s been awhile since I’ve posted on this blog. I got busy doing my day job and I’ve just been posting quick hits on Linkedin. I plan to start posting more on this site going forward. I hope you join me.

Recent developments in the world have made it difficult to focus on work (like normal) this week. However, we have to push through. Momentum is a curious thing. It takes effort to create and then once you have it, it seems to have a life of its own. So if you are struggling to focus, I recommend you just start doing and the momentum will hopefully build.

In regards to state tax developments, the SALT (state and local tax) world continues its normal path of non-uniformity, of complex rules, of daily developments and changes; making it difficult for businesses to comply, causing pitfalls, missteps and also making it a challenge for state tax professionals to stay up to speed. Even with the developments of AI and other tools, a consultant’s knowledge, judgment and advocacy, and most of all - creativity, can not be duplicated. I call all of that - LEVERAGE.

Over the past week and recent months, I’ve dealt with:

• cleaning-up client historical liabilities via income tax sales tax voluntary disclosure agreements (VDAs).

• helping clients determine where they need to file and don’t need to file returns.

• helping clients determine if what they are selling is taxable.

• helping clients decide if they should do a private letter ruling.

• helping clients determine if they are eligible to use P.L. 86-272.

• reviewing another firm’s Tennessee franchise and excise tax filings and ensuring the correct entity is filing the return, and advising whether a consolidated net worth election makes sense.

• advising foreign companies investing in Tennessee on Tennessee credits and incentives and helping them obtain and use those credits.

• advising foreign companies operating in the US on sales tax implications and income tax filing requirements.

Just like when I started this blog in 2009, in the days ahead, I hope to write about developments (in a non-technical manner), and provide commentary on the state tax profession, albeit, from an older and ‘much wiser’ and experienced perspective. (Yes, I’m now 50 years old and have been doing this for 28 years). Crazy stuff.

I hope you’ll join me on this journey. Your journey. Your company’s journey. Your client’s journey. The profession’s journey.

Be well.

Sincerely,

Brian (Daily) Strahle

Improvise. Adapt. Overcome.

On this Memorial Day, I want to thank all the veterans, all those who have served and are currently serving in the U.S. military. Your sacrifice is not in vain and is not unnoticed.

In fact, during these unprecedented times this is when all of us could benefit from adopting a mindset of improvising, adapting and overcoming.

We should accept the situation - the fact that things are not the same and may not go back to the way they were. This may not necessarily be a bad thing in some cases. Meaning, we often don't look for a 'better way' to do something or are even open to other ways of doing something unless we are forced to. We often just keep going down the same path and doing the same things if they are working. Well, the chain is broken. Time to think of different ways. Time to think of better ways.

If you were looking for an opportunity to try something new or to try a different method of doing something - THIS IS IT!

LEVERAGE this moment. LEVERAGE this negative situation into something positive. We can't control the situation, but we can control ourselves. We can control the actions we take.

I want you to have a Happy Memorial Day and a Happy rest of 2020!

Improvise. Adapt. Overcome.