The interstate income tax act of 1959, also known as public law 86 272, prohibits a state from imposing its income tax on numerous multistate businesses. Virginia ruling discusses income tax based on contract with software. An organization will be deemed to be doing business in colorado if it is engaged in any activities in colorado which are beyond the protection afforded by public law 86 272. This item discusses the interplay between public law 86272 15 u. Federal public law 86272, enacted in 1959, limits a states right to tax outofstate companies selling of tangible personal property. Requirements of doing business the exemption from state income taxes provided by public law 86272 p. Dec 11, 2019 public law 86 272 does not protect qualified outofstate business entities from the annual llc tax or the llc fee. Nov 05, 2018 eyes on ecommerce 502 state tax notes, november 5, 2018 economic output. Cram in their recent article concerning federal constraints on state taxation of cloud computing income, martin i. Virginia ruling discusses income tax based on contract with. Businesses that qualify for the protections of public law 86272 are exempt from state taxes that.
The law provides that no state or political subdivision thereof shall have the power to impose a net income tax on income derived within the state by any person. Section 3884 remains as the principal limitation on the exercise of state net income tax jurisdiction, including for those states that have enacted factorpresence nexus statutes or that otherwise assert economic presence nexus for corporate income tax purposes. Public law 86272 and digital goods duane morris llp. As everyone who practices state income tax law knows, there is a federal law called the interstate income tax act of 1959, also known as public law 86272 pl 86272, which prohibits a state from imposing its income tax on numerous multistate businesses. Eyes on ecommerce 502 state tax notes, november 5, 2018 economic output.
Taxpayer name federal employer identification number fein or tr number. Public law 86 272 federal public law 86 272, enacted in 1959, limits a states right to tax outofstate companies selling of tangible personal property. Public law 86272 does not protect qualified outofstate business entities from the annual llc tax or the llc fee. Income tax nexus and public law 86272 or when will your. Based upon public law 86 272, the activities of the new york company in south carolina described in this example do not create nexus with south carolina. Public law 86 272 potentially applies to companies located outside of california whose only instate activity is the solicitation of sale of tangible personal property to california customers. Geoffrey does not remove the companys protection under public law 86 272. The interstate income act of 1959, also known as public law 86 272, is a united states statute that allows a business to go, or send representatives, into a state to solicit orders for goods without being subject to a net income tax. Even if software is tangible personal property for purposes of public law 86272, in most circumstances software companies exceed the applicable limitations imposed by public law 86272, particularly as now elaborated upon in the supreme courts wrigley decision. What to do with public law 86272 multistate tax commission. The department of taxation and finance received a petition for advisory opinion from name and address redacted. Public law pl 86272, 15 usc 3884, only affords protection from business income tax when certain conditions are satisfied. However, because public law 86272 applies only to income taxes, protection is not available for the tennessee franchise tax or for other business taxes based on gross receipts filed with local jurisdictions.
Bessey1 contend that public law 86 272,2 the interstate income tax act of 1959, implicitly preempts a state from taxing an outofstate. Nexus physical presence if taxpayer licenses software for use in a state. Public law 86 272 prevents a state from imposing its income tax on a taxpayer whose only activity within the state is the solicitation of orders for the sale of tangible personal property, provided these orders are sent outside the state for approval and, if approved, are filled and delivered from a stock of goods located outside the state. At least for sellers of tangible personal property, public law 86 272 15 u. At least for sellers of tangible personal property, public law 86272 15 u. The interstate income act of 1959, also known as public law 86272, is a united states statute that allows a business to go, or send representatives, into a state. Federal public law 86 272, enacted in 1959, limits a states right to tax outofstate companies selling of tangible personal property. Limitations on states jurisdiction to impose net income.
Supreme court decision in northwestern states portland cement co. Sep 01, 2017 public law 86 272 only provides immunity to the solicitation to sell personal property. Public law 86272 prevents a state from imposing its income tax on a taxpayer whose only activity within the state is the solicitation of orders for the sale of tangible personal property, provided these orders are sent outside the state for approval and, if approved, are filled and delivered from a stock of goods located outside the state. Bessey1 contend that public law 86272,2 the interstate income tax act of 1959, implicitly preempts a state from taxing an outofstate. A statute similar to the new brightline nexus rule was challenged successfully by taxpayers in j.
Following are the salient points from statement of information concerning practices of multistate tax commission and signatory states under public law 86272, third revision adopted july 27, 2001. An organization doing business only in colorado will compute its tax on 100% of the colorado taxable income. The 50th anniversary of public law 86272, the tax insider enewsletter, march 27. Based upon public law 86272, the activities of the new york company in south carolina described in this example do not create nexus with south carolina. This does not protect corporations that profit from the use of intangible property or the sale of services in oregon. Public law 86272, codified in section 381 of title 15 of the u. For further details regarding which activities are protected by public law 86 272, see ftb 1050, application and interpretation of public law 86 272.
New york state department of taxation and finance office. Limitations on states jurisdiction to impose net income based taxes portfolio is designed to guide practitioners in their quest to solve the enigma of state taxing jurisdiction. The application of public law 86272 to the merchandisers activities, including completing weekly reports, maintaining product floor maps, holding product training sessions and inspecting display cases, were at issue before the court. The authors thanktom cornett and shona ponda for their. Any foreign c corporation that is doing business in colorado is subject to colorado income tax. Soliciting sales of tangible personal property directly or indirectly. The interstate income act of 1959, also known as public law 86272, is a united states statute that allows a business to go, or send representatives, into a state to solicit orders for goods without being subject to a net income tax. Martin eisenstein presents on wayfair and public law 86. In 1959, congress passed public law 86 272 which stated that a company could perform the following activities in a state without creating a state income tax nexus.
Arizona has promulgated its own ruling on public law 86 272. As everyone who practices state income tax law knows, there is a federal law called the interstate income tax act of 1959, also known as public law 86 272 pl 86 272, which prohibits a state from imposing its income tax on numerous multistate businesses. His position, as set forth in his state tax notes article, coauthored by partner nathaniel bessey, wayfair and p. This state tax treatment of prewritten computer software as tangible personal property is consistent with how prewritten computer programs are. The interstate income tax act of 1959, also known as public law 86272, prohibits a state from imposing its income tax on numerous multistate businesses. Doing business in colorado for colorado corporate income tax purposes, a c corporation is doing business in colorado whenever the minimum standards of public law 86 272 are corporation has substantial nexus. In addition to an analysis of the states interpretations of public law 86272, the portfolio discusses court decisions under. Public law 86272 protects a taxpayer from which of the following taxes. In other words, custom software, which the company would be selling to the indiana customer, is not treated as tangible personal property for sales and use tax purposes. Petitioner asks whether its business activities in new york are covered by public law 86 272 15 usc 381, et seq. Public law 86272 potentially applies to companies located outside of california whose only instate activity is the solicitation of sale of tangible personal property to california customers. The bloomberg tax portfolio, limitations on states jurisdiction to impose net income based taxes portfolio is designed to guide practitioners in their quest to solve the enigma of state taxing jurisdiction. The application of public law 86 272 to the merchandisers activities, including completing weekly reports, maintaining product floor maps, holding product training sessions and inspecting display cases, were at issue before the court.
It does not apply to the modified gross receipts tax. Inside deloitte income tax nexus in the new economy. Tennessee enacts changes for franchise, excise, and sales. Throwback of sales to california and public law 86272 in california, sales of tangible personal property are assigned to the california sales factor numerator or thrown back for apportionment purposes if the property is shipped from california and the taxpayer is not taxable in the. This article does not constitute tax, legal, or other advice from deloitte, which assumes no responsibility regarding assessing or advising the reader about tax, legal, or other consequences arising from the readers particular situation. But one thing that has not changed is public law 86272. This federal limitation on state income taxation only applies, however, if these six 6 requirements are met.
The activities and income of a corporation that is part of a unitary group but protected by public law 86272 must be included in the combined report. However, because all software is treated as such for income tax purposes, the protections of public law 86272 applied to the company. Even if software is tangible personal property for purposes of public law 86 272, in most circumstances software companies exceed the applicable limitations imposed by public law 86 272, particularly as now elaborated upon in the supreme courts wrigley decision. For further details regarding which activities are protected by public law 86272, see ftb 1050, application and interpretation of public law 86272. States are thus prevented under public law 86272 from taxing. Public law 86272 prohibits a state from imposing its income tax on a taxpayer whose only activity within the state is the solicitation of orders for the sale of tangible personal property, provided that these orders are sent. Those states classify software as either tangible personal property or a. Chris lutz published in state tax notes what to do with. The 50th anniversary of public law 86 272, the tax insider. Navigating nexus multistate business operations face a wide variety of state taxes.
New york state department of taxation and finance office of. Duane morris llp public law 86272 and digital goods. Geoffrey does not remove the companys protection under public law 86272. Congress passed public law 86272 which stated that a company could perform the following activities in a state without creating a state income tax nexus. Moreover, computer software companies seldom can take advantage of the benefits of public law 86272. Washington business and occupation tax a gross receipts tax. Businesses that qualify for the protections of public law 86 272 are exempt from state taxes that are based on your net income. Public law 86272 and criticizes state e orts to interpret the law out of existence. Public law 86272 applies only to solicitation of sales of tangible personal property, not to sales of intangible property or services.
Current issues in state taxation of computer software. The activities and income of a corporation that is part of a unitary group but protected by public law 86 272 must be included in the combined report. Note that public law 86272 does not protect a company which only licenses trademarks and trade names. However, mold shops may be engaging in other types of activities that are not protected under this law. Income tax nexus and public law 86272 or when will. Are software and digital products considered tangible or intangible property. Throwback of sales to california and public law 86 272 in california, sales of tangible personal property are assigned to the california sales factor numerator or thrown back for apportionment purposes if the property is shipped from california and the taxpayer is not taxable in the. Texas margin tax a tax with net income, gross receipts, and capital worth components.
This item discusses the interplay between public law 86 272 15 u. However, because all software is treated as such for income tax purposes, the protections of. An organization will be deemed to be doing business in colorado if it is engaged in any activities in colorado which are beyond the protection afforded by public law 86272. Public law 86272 only provides immunity to the solicitation to sell personal property. Public law 86 272 applies only to solicitation of sales of tangible personal property, not to sales of intangible property or services. However, because all software is treated as such for income tax purposes, the protections of public law 86 272 applied to the company. Public law 86272 federal public law 86272, enacted in 1959, limits a states right to tax outofstate companies selling of tangible personal property. Business income tax department of revenue taxation. Martin eisenstein presents on wayfair and public law 86272. Bessey reprinted from state tax notes, may 21, 2018, p. Note that public law 86 272 does not protect a company which only licenses trademarks and trade names. Public law 8717 an act pii 7 j g g j to amend public law 86272 relating to state taxation of interstate commerce. Computer software is fundamentally data or information the computer programs that run on computer equipment hardware.