Welcome to the latest Reed Smith update on recent developments in Massachusetts tax. In this update, we will provide a year-end roundup on some of the interesting issues in recently filed or decided cases at the Appellate Tax Board (ATB).
Department Treats “Check-the-Box” Election as a “Sham” and Ignores Federal Disregarded Entity Treatment
The Department of Revenue (“Department”) has a long history of asserting the sham transaction doctrine against taxpayers. See our prior coverage on this topic in a Tax Notes article, and our recent webinar (available at reedsmith.com).1 A recent petition filed with the ATB demonstrates that the Department is now taking the position that it can ignore a federal election made by a foreign entity to be disregarded as a separate entity from its owner, on the basis that the election was a “sham”. The Department is taking this position in Kendall Holding Corp. v. Commissioner.2 If the Department’s position is upheld, it could have sweeping implications for any taxpayers that have structured their business operations in a way that had the effect of reducing their corporate excise tax liability.
The taxpayer, Kendall Holding Corporation (“Kendall”), was a subsidiary of Covidien, and the parent holding company for a group of U.S. and foreign corporations. Kendall was formed in 2006 in connection with Covidien’s spin-off from Tyco International. As part of the spin-off, Kendall elected to treat an entity incorporated and doing business in Portugal (“Covidien Portugal”) as a disregarded entity for U.S. federal income tax purposes.
The Department audited Kendall’s 2009 corporate excise tax return. Although Kendall did not have any property, payroll, or sales of its own, Covidien Portugal’s factors were included in Kendall’s apportionment fractions because Covidien Portugal was a disregarded entity. This treatment was consistent with G.L. c. 63 § 30, which provides that “without limitation, all income, assets, and activities of [a disregarded entity] shall be considered to be those of the owner.”
The Department applied the sham transaction doctrine to compute Kendall’s apportionment fractions without taking into account the factors of Covidien Portugal. Because Kendall had no property, payroll, or sales of its own, and had its headquarters in Massachusetts, ignoring the factors of Covidien Portugal had the effect of increasing Kendall’s Massachusetts apportionment from 0% to 100%.
Reed Smith Insight:
The Department has taken an aggressive position in this appeal. Although G.L. c. 62C § 3A places the burden on the taxpayer to demonstrate by clear and convincing evidence whether a transaction has a non-tax business purpose and economic substance, the burden is on the Commissioner to show that its adjustment was an “application of the sham transaction or any other related tax doctrine”. There is little support for applying the sham transaction doctrine to a “check-the-box” election. The federal entity classification regulations, Treas. Reg. § 301.7701-3(a), simply state that such elections are authorized “for federal tax purposes.” Moreover, the U.S. Tax Court has explicitly held that a business purpose is not required for a “check-the box” election.3 After all, how could an election specifically made only for tax purposes ever have a non-tax business purpose?
The Department might be on firmer footing if it were arguing that Kendall’s “check-the-box” election was part of a larger transaction, the purpose of which was to avoid tax. However, in Kendall’s case, the election was not part of a larger transaction—Kendall continued to operate the Covidien Portugal business after making the election.4
In addition to the sham transaction issue, this appeal involves other issues including interest add-back and the disallowance of net operating losses under Internal Revenue Code (“IRC”) § 382. However, the resolution of the sham transaction issue in this case could have significance for any corporate excise taxpayer that have made federal income tax elections that have had the effect of reducing their Massachusetts tax liability.
Department Applies Six Year Statute of Limitations to Taxpayer Failing to Report Share of Partnership Income
The Massachusetts statute of limitations for assessment of tax is extended to six years when a taxpayer omits an amount equal to more than 25% of the gross income actually reported on its return, and the omission is not adequately disclosed on the return.5
In a case pending at the ATB, the Department assessed additional tax against an S corporation (AST), on the basis that AST failed to include its pro rata share of income from a partnership in its gross income reported to Massachusetts.6 The assessment against AST is for a tax year that would otherwise have been closed under the standard three-year statute of limitations. AST is arguing that the six-year statute of limitations does not apply, because the partnership K-1s that AST filed with its corporate excise tax return were sufficient disclosure of the nature and amount the partnership income.
Department Applies Sourcing Rule for Receipts Derived from Licensing of Intangible Property to the Sale of Digital Goods
The Department assessed additional corporate excise tax against Apple, Inc. (Apple) for the 2010 through 2013 tax years by recharacterizing Apple’s receipts from the sale of music, books, videos, and applications sold on its digital platforms (e.g., iTunes and the app store) as receipts from the licensing, rather than the sale, of intangibles. Consequently, the Department sourced the receipts based on the location of use, rather than the location of the income producing activity determined based on Apple’s costs of performance. Taxpayers with similar receipts for pre-2014 tax years should pay attention to Apple, Inc. v. Commissioner.7
Under the corporate excise tax statute applicable to the tax years at issue in Apple’s appeal, a taxpayer was required to source receipts from sales, other than sales of tangible personal property, to Massachusetts if the greater proportion of the income producing activity occurred in Massachusetts, based on the location of the costs of performance. Under that rule, receipts from sales of intangibles were sourced to Massachusetts only if the taxpayer incurred the greatest proportion of its costs attributable to delivering the intangible in Massachusetts. However, the statute also included a presumption that the income producing activity of a taxpayer licensing the right to use intangible assets occurred at the location where the use of the intangibles occurred (generally, this was the customer location).
Apple characterized its receipts from the sale of songs, books, videos, and applications purchased on its digital platforms as receipts from sales, other than sales of tangible personal property. Apple is arguing that its receipts from its sales of electronic books and mobile applications are merely commissions for marketing and delivering intangible property to its customers, because it does not have an ownership interest in the underlying intellectual property and therefore cannot license that property to its customers. Apple is also arguing its receipts from its sales of digital music and videos are not licensing receipts because purchasers merely obtain the right to listen to the music and watch the videos. Apple did not source any of its receipts from the sale of digital goods to Massachusetts, because it incurred the greater proportion of its costs for selling those goods in a state other than Massachusetts, e.g., in California (its headquarters location) or North Carolina (where its data centers were located). Apple is arguing that the fact that it licenses the use of its platforms such as iTunes and iBooks to users is not relevant, because it makes no charge to users for their use of the platforms.
In contrast, the Department is taking the position that Apple’s receipts from its sales of digital goods were receipts from licensing intangible property through its platforms, and therefore, such receipts should be sourced to the location of the customer.
Reed Smith Insight:
By treating sales of music, books, videos, and applications purchased on digital platforms as licensing transactions the Department is effectively sourcing the receipts from such sales on a market basis for tax years before Massachusetts’ market sourcing legislation became effective. (The legislation was effective for tax years beginning on/after January 1, 2014.)
Under current Massachusetts law (G.L. c. 63 § 38(f)), receipts from the sale of digital goods are generally sourced based on delivery location. The Department’s regulations explicitly provide that receipts from the sale of electronically delivered goods to individuals are treated like receipts from electronically delivered services, and sourced based on customer location.8 In contrast, the regulations effective for tax years beginning before January 1, 2014 did not contain any rule or presumption regarding the characterization of electronically delivered goods or services. Taxpayers with receipts from the sale of electronically delivered goods that have open pre-2014 tax years should watch this appeal closely.
Appellate Tax Board Rules Litigation Awards and Settlement Payments Are Sourced to Taxpayer’s Massachusetts Domicile
On October 2, 2019, the ATB issued a decision addressing the sourcing of litigation proceeds under Massachusetts’ costs of performance statute (effective for tax years beginning before January 1, 2014).9 SynQor, Inc. (“SynQor”) was a headquartered in Massachusetts and used patents to manufacture tangible personal property worldwide. SynQor sued several third party defendants in federal District Court in Texas claiming damages for unauthorized use of its patents. As a result of the suits, SynQor received three types of receipts: (1) jury-awarded lost profits and royalties for patent infringement, supplemental damages, civil contempt sanctions, costs, attorneys’ fees, and interest; (2) settlement payments; and (3) royalties (the royalties were paid to SynQor after the federal court enjoyed defendants from selling products containing SynQor patents). SynQor filed its Corporate Excise Tax returns for the 2011 and 2013 tax years by including all the lawsuit proceeds in its sales factor numerator and denominator. It then filed a refund claim.
During the tax years at issue, Massachusetts statute required taxpayers to source sales other than sales of tangible personal property to Massachusetts if the greater proportion of the income producing activity occurred in Massachusetts, based on the location of the costs of performance. The Department’s regulation in effect provided that “receipts from the enforcement of legal rights by taxpayers domiciled in Massachusetts are presumed to be attributable to Massachusetts . . . unless the legal dispute or claim relates directly and exclusively to real or tangible personal property of the taxpayer located outside the Commonwealth.” Relying on its regulation, the Commissioner argued—and the ATB agreed—that SynQor’s receipts from the patent suits were presumed to be attributable to Massachusetts, because the company was headquartered in Massachusetts and the receipts did not relate to property located outside the Commonwealth.
SynQor proposed three alternative methods to source the receipts from the patent suits. First, the company argued that the receipts should be sourced based on its average Massachusetts sales factor during the period in which the patent infringement occurred. (SynQor relied on a California State Board of Equalization decision employing that methodology to source litigation proceeds.) The ATB rejected this method because (among other reasons), SynQor’s receipts were not lost profits. Even if the receipts could be characterized as representing lost profits, there was no evidence that SynQor’s actual sales of tangible personal property during the period had any relation to the infringing companies’ locations. Second, SynQor argued that the receipts should be sourced using Massachusetts’ method for receipts from licensing intangible property. Under this method, the receipts would have been sourced to the commercial domicile of each of the infringing companies, because SynQor would have received licensing fees from each infringing company if it had authorized it to use its patents. The ATB rejected this method because (among other reasons), SynQor’s business model was selling tangible personal property—not licensing intangible property—so there was no basis to presume it would have received licensing receipts from the infringing companies. Third, SynQor argued it should have been entitled to exclude the receipts from its sales factor entirely, based on the method that the Department adopted for sourcing litigation proceeds in regulations that went into effect for tax years after those covered by SynQor’s appeal. The ATB rejected this method on the basis that the Commissioner’s sourcing rule for litigation proceeds applicable to later years “could not inform the interpretation of the Commissioner’s long-standing regulation in effect during the tax years at issue.” The taxpayer appealed, and the case is now pending before the Massachusetts Appeals Court.
Reed Smith Insight:
Taxpayers domiciled outside Massachusetts with open tax years beginning before January 1, 2014 should consider filing refund claims taking the position that litigation proceeds are included in the denominator of the sales factor, but excluded the numerator. At the same time, taxpayers domiciled in Massachusetts may be able to seek refunds if they can rebut the presumption that all litigation proceeds are included in the sales factor numerator. Although SynQor was unsuccessful in rebutting the presumption, the ATB was clear that a taxpayer can rebut the presumption if they have the right facts.
For tax years beginning on or after January 1, 2014, the Department’s regulations provide that litigation proceeds (whether through litigation or settlement, and regardless of the characterization of the proceeds in the settlement agreement) shall be excluded from the sales factor numerator and denominator.
Taxpayer Challenging Inclusion of Insurance Subsidiary in Combined Group
It has been common in recent years for the Department to challenge taxpayers’ classifications of certain entities for corporate excise tax purposes. For example, recent cases have seen the Department challenging the classification of corporations as financial institutions, utility corporations, and manufacturing corporations. The Department has also been aggressive in challenging the classification of corporations as insurance companies. In a pending case, a taxpayer has challenged the Department’s ability to deny insurance company treatment to a captive insurer.10 Any taxpayer with an insurance company in its federal affiliated group should closely watch this case.
Thermo Fisher involves a Massachusetts combined group engaged in the production of scientific and analytical instruments, equipment, software, and reagents used in manufacturing and research and development applications. At audit, the Department asserted that Thermo Fisher RE, Ltd. (“TFRE”), a Bermuda insurance company affiliated with the group, was not an insurance company for corporate excise tax purposes and, therefore, required to be included in the combined group for purposes of computing the tax. This adjustment resulted in a tax assessment of $3.5 million.
Under G.L. c. 63, § 32B(c)(1), a corporation that qualifies as an insurance company for federal income tax purposes under either Section 816(a) or Section 831(c) of the IRC is excluded from a combined group. In this case, the Department is asserting that TFRE should be included in the combined group because: (1) TFRE was not an insurance company; and (2) the transactions between TFRE and the member of the Thermo Fisher group, lacked a valid, good-faith business purpose other than tax avoidance.
Thermo Fisher is challenging the assessment, arguing that TFRE made a valid election under IRC § 953(d) to be taxed as US corporation and that such election is only available to insurance companies qualified as such under IRC §§ 801 – 874. Because the IRS audited the years covered by the Massachusetts audit and did not challenge TFRE’s status as an insurance company, Thermo Fisher is arguing that TFRE’s classification should be followed by Massachusetts. The taxpayer is further arguing that TFRE is a bona fide insurance company and is properly qualified as such under Bermuda law and that TFRE’s insurance contracts had a valid business purpose and economic substance.
Reed Smith Insight:
As part of its challenge to the Department’s assessment, Thermo Fisher is also directly challenging a Department policy that dates back to 2008. The policy, expressed in Technical Information Release 08-11, is that captive insurance companies are generally included in a Massachusetts combined group. The Technical Information Release provides no analysis or reasoning in support of this policy. However, the effect of the policy is to create a presumption that all transactions with a captive insurance company have a tax avoidance purpose. However, Thermo Fisher argues in its petition that the distinction between a captive insurer and a non-captive insurer is not relevant to the statutory analysis used to determine whether a corporation is included in a combined group. The combined reporting statute simply provides that an insurance company qualified under IRC § 816(a) or IRC § 831(c) is excluded from the combined group.
Massachusetts-Based Taxpayer Challenges the Department’s Refusal to Acknowledge Manufacturer Classification
For local property tax purposes, the Department annually publishes a list of “Corporations Subject to Tax in Massachusetts.”
This list includes a description of the each corporation’s classification as either a manufacturing corporation or non-manufacturing corporation for local property tax purposes. In a recently resolved case, Samsonite challenged the Department’s refusal to classify it as manufacturing corporation for property tax purposes. Although the test for classification as a manufacturing corporation for property tax purposes is different from the test applied for determining the classification of a corporation as a manufacturing corporation for corporate excise tax purposes, Samsonite referred to a corporate excise tax case to support its position. Samsonite’s case demonstrates that the Department’s aggressive position in recent cases with respect to the classification of corporations as manufacturing corporations for corporate excise tax purposes can work to the benefit of taxpayers with the right facts.
In January of 2018, Samsonite filed Form 355Q with the Department seeking classification as a manufacturing corporation for corporate excise tax purposes. However, when the Department published the list of Corporations Subject to Tax in Massachusetts online in July of 2018, it did not list Samsonite as a manufacturing corporation. Samsonite, which is headquartered in Mansfield, Massachusetts, uses contract manufacturers to produce its products.
In its challenge to the Department’s failure to classify it as a manufacturing corporation, Samsonite described in detail its role in every step in its manufacturing process, including its design team activities performed in Massachusetts and its involvement in the sourcing of raw materials and testing and inspection of its products. In this way, Samsonite argued that its activities were indistinguishable from the activities of the corporation classified as a manufacturing corporation in a recent corporate excise tax case (Deckers Outdoor Corp. v. Comm’r of Revenue, ATB Docket Nos. C320020 and C321955 (Jun. 21, 2018)). In Deckers, the ATB focused heavily on the testimony of Deckers’ Chief Operating Officer, who described the activities of Decker’s U.S.-based employees. Those employees were responsible for initial concepts for Decker’s products (shoes), product design, and material and color selection. The U.S. team would then send two-dimensional drawings to its teams in China and Macau. These teams would then work with a third party contract manufacturer to create a prototype. After several redesigns and multiple prototypes, the U.S. team would create a “tech pack”, a document detailing a shoe’s final specifications. Third party manufacturers would then use the tech pack to get the shoe into mass production. The ATB held that, based on these facts, Deckers was a manufacturer for corporate excise tax purposes.
Samsonite argued that its employees fulfilled the same role as Deckers’ employees in developing the initial design, selecting raw materials, approving prototypes, and preparing a pack with detailed specifications for the contract manufacturers to use in mass production. Samsonite’s appeal was resolved in early 2019. As of the date of this alert, Samsonite was included in the Department’s list as a manufacturing corporation.
Reed Smith Insight:
This case presents an interesting procedural posture. As noted above, Samsonite filed their ATB petition less than a month after discovering that the Department had not classified it as a manufacturing corporation. Thus, the petition was akin to the filing of a declaratory action to have Samsonite declared as a manufacturing corporation for property tax purposes. Most of the cases involving the manufacturing classification are tied to Department adjustments to reclassify a corporation as a manufacturing corporation for corporate excise tax purpose, resulting in the mandatory use of a single-sales-factor apportionment formula under G.L. c. 63, § 38. However, in this case, Samsonite was able to obtain prompt guidance on whether it was properly classified as a manufacturing corporation by filing an action directly with the ATB, rather than waiting for an audit adjustment.
Samsonite’s case demonstrates that some entity-classification positions can work to a taxpayer’s benefit. Whereas, the taxpayer in Deckers was arguing against classification as a manufacturing corporation for corporate excise tax purposes, Samsonite relied upon facts similar to those presented in Deckers to support its claim that it should be classified as a manufacturing corporation for property tax purposes.
Comcast Cost of Performance Appeals Reach Their Conclusion
In November 2017, the ATB issued a decision in favor of the Department in twelve related appeals filed by various Comcast affiliates.11 The taxpayers in these appeals (which we will refer to collectively as the “Comcast Entities”) filed refund claims revising their apportionment fractions under Massachusetts’ cost of performance sourcing rules (effective for tax years beginning before January 1, 2014), and also appealed a variety of audit adjustments.
The principal issue in the appeals involved the sourcing of the Comcast Entities’ receipts from video and internet services provided by the entities to Massachusetts-based customers. Several of the Comcast Entities (the “in-state Comcast Entities”) provided services solely to Massachusetts-based customers.
The Department argued that the in-state Comcast Entities were not entitled to apportion their income. The Department requested summary judgment against several of the in-state Comcast Entities on this issue. At the hearing, the Department argued that all of the income-producing activity for each of the in-state Comcast Entities occurred in Massachusetts and, therefore, the application of a cost of performance analysis was unnecessary. Interestingly, the Department argued that, if the ATB found that the income-producing activity of these entities was performed in both Massachusetts and another state, it would apply an operational approach, not a transactional approach in applying its cost of performance analysis.
Comcast argued that the in-state Comcast Entities performed their income-producing activities in multiple jurisdictions. Furthermore, it argued that in its costs of performance analysis for each of the in-state entities, it should consider costs incurred by affiliated entities, not just by the costs incurred directly by the in-state entities.
Despite these arguments, the ATB entered an order deciding the cases in favor of the Department and published Findings of Fact and Report on November 10, 2017. The Comcast Entities appealed to the Appeals Court, which affirmed the ATB’s order on April 26, 2019. Comcast filed an application for review with the Supreme Judicial Court, but its application was denied in June 2019.12
Reed Smith Insight:
While Massachusetts’ market-based sourcing rule for service receipts took effect for tax years beginning on or after January 1, 2014, the application of the cost of performance sourcing rule for earlier tax years continues to be a major source of controversy at the ATB. In some pending appeals, the taxpayer is taking the position that receipts should be sourced entirely outside of Massachusetts based on applying the cost of performance sourcing rule, using an “operational approach” to define the taxpayer’s income producing activity. At the same time, in other cases, the Department is relying on the same approach to take the position that certain receipts should be sourced entirely to Massachusetts. Taxpayers that still have open tax periods for which the cost of performance sourcing rules were in effect should monitor these pending cases closely.
Another issue in the Comcast appeals was the Department’s recharacterization of the intercompany obligations of the Comcast Entities as equity, based upon the application of a “true debt” analysis. Comcast argued that the intercompany obligations were debt owed to an affiliated entity that obtained financing from third parties on behalf of its various affiliated operating entities. The fact that the affiliated entity obtained financing from third parties distinguished the facts in the Comcast appeals from those in other recent cases involving intercompany obligations arising under cash management systems, in which the taxpayers lost. Unfortunately, despite this distinction, the ATB still determined that the intercompany obligations in the Comcast case were not “true debt”.
Department Takes Position that “Wrap Fees” are not Mutual Fund Sales
The Department assessed additional corporate excise tax against Strategic Advisors, Inc., (Strategic), an affiliate of Fidelity Investments, on the theory that “wrap fees” received by Strategic should be sourced to Massachusetts for apportionment purposes, because these fees did not qualify as receipts from mutual fund sales. Any taxpayer receiving wrap fees that did not treat such fees as receipts from mutual fund sales should determine the impact of doing so, and pay attention to Strategic’s pending appeal.13
For corporate excise tax purposes, Massachusetts requires a mutual fund sales corporation to apportion its income from mutual fund sales using a single sales factor formula. A mutual fund service corporation is a corporation that generates more than half its gross income from mutual fund sales. Mutual fund sales are defined to include the provision of management, distribution or administration services to or on behalf of a regulated investment company (RIC). (A RIC is an investment vehicle, commonly referred to as a “mutual fund”, that qualifies for special treatment under the IRC.) Under G.L. c. 63 § 38(f), a mutual fund sales corporation sources its receipts from mutual fund sales based on the domicile location of the RIC shareholders.
Strategic’s parent corporation, FMR, Inc. (FMR), operates one of the largest mutual fund businesses in the US. Seventy percent of Strategic’s revenue for 2007 and 2008 (the tax years at issue) was from “wrap fees” for providing services to individual investors in connection with the purchase of portfolios of mutual funds. Strategic’s wrap fees from each investor were computed based on a percentage of the dollar value of the investor’s mutual fund portfolio, less a credit for fees paid by mutual funds advised by other FMR affiliates.
Strategic took the position that the wrap fees qualified as receipts from mutual fund sales, because Strategic effectively earned the wrap fees by advertising, marketing, and selling mutual funds shares.
Rather than treating Strategic’s wrap fees as receipts from mutual fund sales, the Department treated the fees as receipts from services. Consequently, the Department did not classify Strategic as a mutual fund service company, and sourced Strategic’s receipts to Massachusetts using the costs of performance sourcing rule (which was still in effect for the tax years at issue). This resulted in Strategic apportioning 100% of its income to Massachusetts.14
Reed Smith Insight:
The issue in the case—whether wrap fees qualify as receipts mutual fund sales—should have less significance for tax years beginning on or after January 1, 2014. For these tax years, receipts from services are generally sourced based on the location where the services are delivered.15 This is because under the Department’s market-based sourcing regulations, receipts from investment services provided to individuals are generally sourced to the customer’s location.16 Applying a customer location sourcing rule in Strategic’s case likely would have resulted in Strategic’ s wrap fees being sourced to Massachusetts in a percentage close to the 8.9% that it calculated using the special shareholder domicile rule for sourcing receipts from mutual fund sales.