State tax trends planning and controversy. 18 November 2016

Transcription

1 State tax trends planning and controversy 18 November 2016

2 Disclaimer This presentation is provided solely for the purpose of enhancing knowledge on tax matters. It does not provide tax advice to any taxpayer because it does not take into account any specific taxpayer s facts and circumstances. These slides are for educational purposes only and are not intended, and should not be relied upon, as accounting advice. The views expressed by the presenters are not necessarily those of Ernst & Young LLP. This presentation is 2016 Ernst & Young LLP. All Rights Reserved. EY is a global leader in assurance, tax, transaction and advisory services. The insights and quality services we deliver help build trust and confidence in the capital markets and in economies the world over. We develop outstanding leaders who team to deliver on our promises to all of our stakeholders. In so doing, we play a critical role in building a better working world for our people, for our clients and for our communities. EY refers to the global organization, and may refer to one or more, of the member firms, of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients. For more information about our organization, please visit ey.com. Ernst & Young LLP is a client-serving member firm of Ernst & Young Global Limited operating in the US. Page 2

3 Today s presenters Ray Melone Partner Ernst & Young LLP raymond.melone@ey.com Michele Raber Executive Director Ernst & Young LLP michele.raber@ey.com Page 3

4 Today s agenda Income tax: State planning State controversy Sales and use tax: State planning State controversy Technological innovation Page 4

5 State planning income tax Defining structuring: Reorganizing the position of entities ( boxes ) within structure Changing the flow within the boxes Changing transaction characteristics Common reasons for restructuring: Buying or selling significant property (e.g., non-exempt machinery/equipment, aircraft or motor vehicle fleet) Improve operations and compliance Merging, consolidating or liquidating a portion of their business operations Page 5

6 State planning income tax Business purpose and economic substance: Does the transaction have a purpose, substance, or utility apart from the anticipated tax consequences? Are there objective indicators of the practical economic effects of a transaction, independent of tax benefits? Operational benefits: Reduction in legal entities, therefore reduction on administrative burden Consistent positions across business segments and entities Operational non income tax considerations: Incentives Transfer taxes Wagebase restarts Page 6

7 State planning income tax How to demonstrate substance: Intercompany agreements Transfer pricing Accounting the trail : Invoicing Payments Financial statements Post structuring plans Page 7

8 Controversy income tax States attempting to stretch nexus: Bright line tests Increasing economic standards Re-characterization transactions (sale of tangible personal property (TPP) to services) Page 8

9 Controversy income tax Conflicting results: California R&D credit v. Internal Revenue Service (IRS) State courts ruling differently on the outcome of the same facts States taking inconsistent positions depending on tax type: Microsoft v. FTB, 212 Cal.App.4th 78 (2012) Indiana LOF and (June 26, 2013) Page 9

10 Controversy income tax Tax amnesty programs: 18 states had amnesty programs between Post tax amnesty penalty impact: Metropolitan Life Insurance Company v. Hamer, No (Illinois Supreme Court June 20, 2013) United Parcel Service General Services, Co., et al v. Director, Division of Taxation, No. A-16/17 (New Jersey Supreme Court December 4, 2014) Page 10

11 Sales tax state planning Common reasons for restructuring Business purpose and economic substance Procurement company for asset purchases Streamline the procurement function for the company and its affiliates by consolidating all procurement functions into a separate procurement entity Main operational benefits include: Eliminates vendor overpayments Eliminates double taxation on transfers Centralizes tax decision process May defer sales tax payment Purchase items and resell to affiliated entities Internally manage and control the content, form and method of documentation Efficiency and cost savings from centralization due to reduction of redundant processes/resources Leverage purchasing power of entire organization by contracting centrally Page 11

12 Sales tax state planning Re-assign the parent company as the purchase company Before: Parent Co. Vendor Sub Page 12

13 Sales tax state planning Re-assign the parent company as the purchase company (continued) After: Parent Co. Vendor Sub Page 13

14 Sales tax state planning Page 14

15 Sales tax state planning Page 15

16 Controversy sales tax Audit defense best practices Self-audit to manage liability expectations and identify offsetting adjustments Establish goals Understand the protest and appeals process Understand opportunities for settlement Create log/document correspondence Get all information document requests (IDRs) in writing Monitor statute of limitations Create model to quickly calculate benefit/liability for each identified issue Page 16

17 Controversy sales tax Controversy resolution alternatives managed audits What are they? They allow a taxpayer or a qualified third party to conduct an audit according to state guidelines. The taxpayer, or representative, does much of the work that a tax department auditor would do to conduct a field audit. The revenue department assigns an auditor to oversee the process. They are generally thought of for sales/use tax, but it is possible to do other taxes, such as corporate income tax. State authority to enter into managed audits is granted either by statute or unofficial department policy. Page 17

18 Controversy sales tax Formal managed audit programs States that authorize some form of managed audit program Arizona Michigan California Nebraska Colorado New Mexico Connecticut North Carolina Florida Ohio Georgia Pennsylvania Idaho Texas Kansas Utah Louisiana Washington Maryland Wisconsin Page 18

19 Controversy sales tax Benefits of a managed audit More than half of states abate penalties, and some or all interest Ability to better control/manage the process Perspective shift validation/improvement vs scrutiny Seek out overpayments as well as underpayments Better manage the flow of information Collaborative relationship with state taxing authority Page 19

20 Controversy sales tax Managed audits program requirements: Request before audit notice is issued Establishment of timeline for completion Eligibility requirements Taxpayer previously audited? Some states restrict eligibility to certain businesses or industries Compliance history Quality of taxpayer s records Managed audit agreements (MAAs): Completion within predetermined time period Documentation/records retention Verification/sign-off of audit results by the state Page 20

21 Technology income and sales tax Income tax technology tools State modeling tool NOL tracker Domestic data analytics Sales tax technology tools Data extraction and transformation Optical character recognition (OCR) EY Reflect Page 21

22 State modeling tool Page 22

23 Corporate structure Instructions: To liquidate an entity into another entity (100% liquidation), enter the ID# of the successor corporation into the Merger# column and then check the box for the liquidating entity. Do not change the ID# value, as the logic for this model is dependent on this value. If you need to change the number of entities presented below, use the Add Entity/Div and Remove Entity/Div buttons. After entering your merger scenario, use the Compute button to run the model. Once the model has been run, the Summary Reports button may be used to generate various output reports. The Reset Workbook button will remove all worksheets within the model s base file that are not one of the eight base worksheets. Note: Running this model will enable the Automatic Calculations feature in Excel. If you do not want this option enabled, you may disable it after the model has completed its operation (Tools > Options > Calculation). Buttons are available to add and remove entities/divisions to the corporate structure, eliminating the need to insert new cells or manage links or formulas. There are also options to run customized reports and specialized functions that are developed during the design phase. The Corporate Structure may be set up to include legal entities, divisions or operating units to the extent data is available at these various levels. Checkboxes are used to prompt the model to run a merger scenario. Example: Entities 14, 18, 19 and 20 are set to merge into Entity 15. Page 23

24 Flow-through setup Flow-through entity ownership can be set up, including capital and flow-through percentages. Varying types of income and apportionment factors allow for special allocations. Can also establish unitary relationships (does not establish unitary filings). Page 24

25 State taxpayer (filing method) Filing methods are entered on an entity-by-entity, state-by-state basis. Detailed options specific to income and franchise groups. Output Input C or IC = combined/unitary for income tax purposes N or IN = consolidated for income tax purposes Note: Pre-apportionment vs postapportionment rules available S or IS or FS = separate for income and/or franchise tax purposes FG = group filing for franchise tax purposes In cases where a merging entity is also a parent entity, a note is automatically generated to alert the user of any method changes to the subsidiaries. Similar notes are produced to note filing changes for disregarded entities. Page 25

26 Effective tax rate (ETR) summary ETR summary is generated to present an entity-by-entity view of the effective tax rate and a state-by-state view of tax expense. Page 26

27 Group and separate entity output Entity output Group output Group output contains the tax computations for each member of the group with applicable group logic applied for combined/unitary vs pre-apportionment consolidation vs postapportionment consolidation. Note that formulas are presented to assist with review and reconciliation of the tax computations. Separate entity output contains a statespecific computation in all separate states where the entity has nexus, as well as all states in which a franchise tax computation was performed. Page 27

28 State NOL tracker Page 28

29 State NOL tracking tool State NOL Tracker is a technology-enabled solution developed to help clients record, track and provide custom reporting capabilities for NOL generation Utilization on a carryback/carryforward basis Adjustments to NOL and utilization Income/loss tracking and utilization/nol tracking capabilities Maintaining historical data Custom reporting Control user access Allows the users to generate Excel reports that can be customized to suit the users reporting needs and additional custom reports can be developed by the EY team in a timely manner Facilitates creation of audit workpaper package Page 29

30 Benefits of the state NOL tracker Fully customizable tool to automate the calculations of carryback/carryforward utilization of NOLs Controls over the integrity of data Controlled process that reduces formula and input risk, thereby minimizing calculation errors Significant time savings in the preparation of auditable workpaper packages on a by entity and by jurisdiction basis Simple interface allowing users to quickly access historical NOL, income and utilization activities Page 30

31 Key requirements and needs Full jurisdictional NOL tracking: By company, jurisdiction, and year Limitations and expirations mandated by law Generation and separate adjustments (revenue agent reports (RARs), audits, notices, etc.) and utilizations by year Automatically generates a NOL schedule to be attached to a tax return and also a more detailed report for return support workpaper Ability to identify over-utilization and under-utilization of NOLs resulting from state audit adjustments, RARs, etc. Ability to load provision and actual data into system and produce a report for DTA purposes: Data is tagged to differentiate between estimated numbers and actual adjustments to produce reports for different purposes Page 31

32 State NOL tracker Input view Drop-down list of entities and associated entity name Select (1) as of activity date and (2) as of recognition date to create point in time reports Select a single jurisdiction or all jurisdictions View (1) income, (2)utilization and (3) NOL amounts by entity, by jurisdiction, by year with activity type and recognition date for adjustments Page 32

33 State NOL tracker Enter new NOL view Page 33

34 State NOL tracker Enter new income/utilization view Page 34

35 State NOL tracker Enter adjustment view Page 35

36 State NOL tracker Calculate view Page 36

37 Data analytics Page 37

38 US domestic compliance analytics Tax visualizations sourced from local compliance software Pre-built output visualizations Federal book-to-tax calculation Federal tax adjustments State income tax liability State modifications State allocation and apportionment State franchise tax liability Federal and state payments International earnings and profits International cash balances Page 38

39 State income tax change summary State income tax liability by state and entity Introduction This dashboard shows details about state income tax liability from state returns with detail by state and entity. Users are able to quickly understand the biggest changes by state and by entity, including federal income, modifications, state income and state tax details. Page 39

40 State apportionment change summary State apportionment factor detail by state and entity Introduction This dashboard shows details about state apportionment from state returns with detail by state and entity. Users can select to look at the overall apportionment or individual factors. This allows users to quickly understand the biggest changes in apportionment by state by entity, including each factor amount year-over-year. Page 40

41 State modifications change summary State modifications detail by state and entity Introduction This dashboard shows details about state modifications from state returns with detail by state and entity presented with a focus on the biggest change in modifications at the state level. Drill-down is provided into specific modifications within each state. Page 41

42 State franchise tax change summary State franchise tax liability by state and entity Introduction This dashboard shows details about state franchise tax liability from state returns with detail by state and entity. Users are able to quickly understand the biggest changes by state and by entity. Page 42

43 The power of data analytics Page 43

44 Data extraction and transformation Page 44

45 Data extraction and transformation Engagement needs and resources Identify data requirements Extraction methods Data transformation Identify client enterprise resource planning (ERP) and engagement requirements Discuss any historical data extraction for sales/use tax purposes. Clients may already have a report in place that is used for audit support/compliance/previo us refund reviews that could be utilized: If available, ensure that the report fits the needs of the specific engagement. Tax accruals kept outside ERP (manual entries) Good receipt/invoice receipt (GRIR) accounting methods Client-specific attributes: Tax Codes; Doc Types; Data Entry; Timing Differences Tax-specific attributes: Vendor info, dates, tax and spend amounts, general ledger (GL) accounts, descriptions Attributes required for invoice extraction Consider limiting to certain accounts or doc types as well as splitting files into date ranges depending on engagement requirements Potential extraction methods: Client laptop with ERP access or can remotely access portal if workstation is provided at client site Assist client in data extraction through working sessions if requested Additional EY options of tax process automation (TPA) developed solutions and scriptbased solutions Modify data for engagement needs Review summaries of spend and tax: By GL account By tax codes (if applicable) By situsing By vendor Other as required Align additional data, such as manual tax accruals or supplemental information, with ERP data Utilize exact, transform, load (ETL) technology for automated transformation Page 45

46 Data extraction and transformation Ernst & Young LLP resources perform analysis on client electronic document storage system to develop custom approach on automating document extraction: Provides supporting documentation for engagements, such as: Vendor invoices Purchase orders Exemption certificates Electronic data interchange (EDI) invoices Reduces amount of manual time required to retrieve supporting documentation Links supporting documentation to audit/refund schedules to streamline documentation review Page 46

47 Optical character recognition (OCR) Page 47

48 Optical character recognition (OCR) Optical character recognition allows users to scan documents and convert the image into useable data. The tool can separate and save invoices individually, even in instances where they are scanned in bulk. OCR is an intelligent software and through user guidance, gains knowledge as more images are processed. Page 48

49 Optical character recognition (OCR) Page 49

50 EY Reflect Page 50

51 EY Reflect EY Reflect is the hosted internal refund tool utilized by sales/use tax engagement teams to streamline data review: Allows engagement teams to scope large data sets, identify areas of interest and visualize refund potential Utilizes SQL and Tableau Page 51

52 EY Reflect Page 52

53 Audit dashboard visualization Provides visual dashboard of audit support to demonstrate liability reduction and audit results over the course of the audit Exhibits EY involvement and value in providing audit support Interactively breaks down data by entity, state and category Allows client to see progress throughout audit process Page 53

54 Audit dashboard visualization Page 54

55 Audit dashboard visualization Page 55

56 Data analytics: example compliance dashboard Dashboard support to visualize sales/use tax monthly compliance: Compliance overview Trend analysis Return count Expiring credits Page 56

57 Data analytics: example credit and incentive local tax review Example of Tableau capabilities: monitor local taxes for credit and incentive requirements Page 57

58 EY Assurance Tax Transactions Advisory About EY EY is a global leader in assurance, tax, transaction and advisory services. The insights and quality services we deliver help build trust and confidence in the capital markets and in economies the world over. We develop outstanding leaders who team to deliver on our promises to all of our stakeholders. In so doing, we play a critical role in building a better working world for our people, for our clients and for our communities. EY refers to the global organization, and may refer to one or more, of the member firms of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young Global Limited, a UK company limited by guarantee, does not provide services to clients. For more information about our organization, please visit ey.com. Ernst & Young LLP is a client-serving member firm of Ernst & Young Global Limited operating in the US Ernst & Young LLP. All Rights Reserved ED None This material has been prepared for general informational purposes only and is not intended to be relied upon as accounting, tax or other professional advice. Please refer to your advisors for specific advice. ey.com