War Against the States

One of the more contentious issues in state tax is that of nexus. That is, whether the activities of a business have a sufficient connection with any particular state to allow the state to either impose income tax on the business' activities or force the business to collect sales tax on sales to residents of the state. Two bills before Congress are apparently attempting to use the guise of tax simplification to weaken the ability of states to tax corporate income.

According to a CRS report, State Corporate Income Taxes: A Description and Analysis, the proposed legislation, H.R. 1956 and S. 2721,:

is intended to further modify the state taxation of businesses engaged in interstate commerce.The legislation would impose new regulations on how states impose taxes on multistate businesses, through (1) imposing uniformity on the time component of nexus determination and (2) expanding the definition of goods and services subject to the nexus rules. The legislation would not directly address the complexity of the state corporate income tax structure — in particular, the various apportionment formulas (and allocation rules). . . .

Many economists and other researchers who analyze state corporate income taxes agree that the critical issue with the current state corporate income tax structure is the variability in the allocation and apportionment of corporate income from state to state. The current mosaic of state corporate income tax rules creates economic inefficiencies for the following reasons: (1) relatively high compliance costs, (2) increased opportunities for tax planning by businesses, and (3) potential gaps and overlaps in taxation. The new regulations as proposed in H.R. 1956 and S. 2721, would exacerbate the underlying inefficiencies because the threshold for business —the 21-day rule, higher than currently exists in most states — would increase opportunities for tax planning leading to more "nowhere income." In addition, expanding the number of transactions that are covered by P.L. 86-272 [a previous federal enactment "simplifying" the nexus question] would have expanded the opportunities for tax planning and thus tax avoidance and possibly evasion.

In other words, the proposed legislation is a wolf in sheep's clothing.

One criticism of the report. On page 18, it refers to "de minimus [sic]" standards. Mrs. Sheff would not be pleased.