CBIA 2015 Connecticut Tax Conference June 26, Presented by: Douglas Joseph and Tony Switajewski BlumShapiro & Company, P.C.

Transcription

1 CBIA 2015 Connecticut Tax Conference June 26, 2015 Presented by: Douglas Joseph and Tony Switajewski BlumShapiro & Company, P.C. West Hartford, CT Requirement to Collect Sales Tax (Nexus) Basics of Sales and Use Taxation Taxation of Services and Sourcing Specific Services Discussed Advertising Business and Human Resource Management Computer and Data Processing Personnel Real Property Key Points to Keep in Mind Action Steps 2 1

2 Under U.S. Treasury Department guidelines, we hereby inform you that (1) any tax advice contained in this communication is not intended or written to be used, and cannot be used by you, for the purpose of avoiding penalties that may be imposed on you by the Internal Revenue Service or State Tax Authorities, (2) no part of any tax advice contained in this communication is intended to be used, and cannot be used, by any party to market or promote any transaction or matter addressed herein without the express and written consent of Blum Shapiro & Company, P.C., (3) Blum Shapiro & Company, P.C. imposes no limitation on any recipient of this tax advice on the disclosure of the tax treatment or tax strategies or tax structuring described herein, and (4) any fees otherwise payable to Blum Shapiro & Company, P.C. in connection with this written tax advice are not refundable or contingent on your realization of tax benefits from the advice contained herein. This presentation is intended to provide general information and no tax advice is intended to be given. 3 Nexus for service providers: Generally, physical presence in a state by a service provider is required: Property in a state (e.g., office, inventory) Sales personnel or independent representatives visit customers Scholastic Book Clubs, Inc. (cert denied by US Supreme Court 10/9/2012) Performing services within a state Attribution nexus (e.g., click-through nexus) Amazon.com Use Tax Collection Legislation Once a business has nexus in a state for sales or use tax collection responsibilities, it is likely subject to other state taxation. 4 2

3 Marketplace Fairness Act of (introduced by US Senator Mike Enzi, R-WY, on March 10, 2015 Latest iteration of various earlier year failed initiatives with same name Provides that states must simplify their sales tax laws before being allowed to expand collection Small seller exception if total US remote sales in previous calendar year did not exceed $1 million Wouldn t create nexus for any other types of tax (e.g., franchise, income) 5 Online Sales Simplification Act of 2015 Introduced by House Judiciary Chair Bob Goodlatte, R-VA, on January 12, 2015 Would require a remote seller to remit sales tax to the origin state rather than the market state Remote Parties Transactions Parity Act of 2015 Introduced in House by Jason Chaffetz, R-UT, on June 15, 2015 Would be a three year small remote seller phase-in 6 3

4 The Basics of CT Sales Taxation on Services Only listed taxable services are taxable ( enumerated services ) Sales tax is legally imposed on the retailer (seller) Retailer is to collect the tax from the consumer and it is a debt from the consumer to the retailer when added to the sales price. Seller must pay sales tax to CT whether or not it collected the tax from its customer. What happens when you should have charged sales tax but didn t can you go after your customer for the tax? 7 Advertising Credit information and reporting Computer and data processing Employment agencies and personnel services Private investigation, protection, patrol work, watchman, armored car Telephone answering Services to industrial, commercial or income-producing real property Business analysis, management, management consulting Public relations Miscellaneous personal services Repair and maintenance service to tangible personal property Producing, fabricating, processing, printing or imprinting of TPP Telecommunication 8 4

5 Reimbursable expenses are taxable when the service is taxable Separately stated reimbursed expenses are still taxable if related to taxable service Reimbursed expenses generally become part of the gross receipts of the sale 9 Sourcing of services: Sourcing is very important because CT taxes many services not taxed by other states CT DRS position has always been where the benefit of the service is enjoyed is where the service is taxable Easy when service is to real property, e.g., because it is stationary (service to CT real estate is taxable in CT) Difficulty is when services cross state lines or service benefit is received outside CT and brought back to CT Multiple points of use 10 5

6 Services to Identically Owned Affiliates Applies to any types of business organizations (was once only applicable to corporations) Services Rendered to Qualifying Exempt Organizations State of Connecticut and municipalities U.S. Government 501(c)(3) or (13) Organizations Nonprofit Charitable Hospitals Resale of Services Buying a taxable service that you will resell - must be an integral and inseparable component part of a service to be resold to an end consumer (often seen in the construction industry). 11 Who May Issue a Resale Certificate for Services Intend to resell the service To resell a service it must be enumerated in Conn. Gen. Stat (a)(37) and become an integral and inseparable part of services enumerated under Conn. Gen. Stat (a)(37) 12 6

7 Accrual basis general rule (when services are rendered) Cash basis exception for sellers of services filing Federal income tax returns on cash basis. Handling bad debts 13 Tax Added vs. Tax Included Tax Added Separately stated in tax line or box Amount stated must be remitted Unjust Enrichment Tax Included Must be notated on invoices Mention in contract not enough Divide invoice x

8 Taxable purchases made where sales tax was not collected Services that are not subject to Connecticut Sales tax are not subject to the use tax Pay use tax on Form OS-114, Sales and Use Tax Return 15 NOT RELATED TO THE DEVELOPMENT OF MEDIA ADVERTISING OR COOPERATIVE DIRECT MAIL ADVERTISING CT is highly unusual to tax advertising services What Advertising is taxable? Non-media advertising Creation, preparation, production, dissemination Consulting and advice Layout, art direction, graphic design, mechanical preparation, production supervision Does not include marketing Does not include cooperative direct mail advertising 16 8

9 Marketing is excluded. What is Marketing? Testing, research or analysis of existing or potential consumer markets in connection with the development of particular products, property, goods or services Includes consulting in connection with marketing 17 What is Media Advertising (per SN 2003(6))? Sale of time or space In or on pre-existing medium For broadcast or dissemination to all or segment of public Examples of media: Newspapers, including advertising inserts and coupon inserts distributed inside newspapers Magazines Radio, TV, Cable TV Billboards, Buses, Taxis Trade or Campus Directories Restaurant Placemats Cash Register Tapes Does not include ads devoted to one particular advertiser Catalogs Flyers Brochures Posters 18 9

10 When taxable, what charges are taxable? Hourly Fees Vendor Costs Commissions Markups Reimbursable Expenses, including mailing services and postage Collateral items (e.g., printed materials) are sales of tangible personal property 19 Resale of Services by Ad Agencies Writing, copywriting Layouts Art Direction Graphic Designs Mechanical Preparation Typeset Copy Production Supervision Placement Models 20 10

11 Ad agency is consumer of tangible personal property and services Paint, tools supplies, etc. Original photos, artwork, video and audio tapes are considered non-taxable intangibles if fee is only for right to change, reproduce or market design May also be taxable component if separately stated fee for services of graphic designer and if related to taxable advertising services If fees are not separately stated, entire charge is presumed to be taxable 21 Advertising sourced to where campaign occurs or where materials are disseminated May need to be allocated between states if multistate campaign For printed materials, allocation of service charge is based on the circulation data for the print media or publication. Printed materials themselves follow this same allocation approach. Printed materials exemption certificate may be required. May result in use taxes in other states where the service provider has nexus, even if advertising services are exempt

12 Includes: Business Analysis Examination of data, making of recommendations Business Management Provision of general or specialized day-to-day management Business Management Consulting Furnishing of advice or assistance on matters pertaining to management Business Public Relations Preparation of materials designed to influence the general public or other groups by promoting interests of service recipient 23 Does Not Include: Valuation or appraisal of property (unless in connection with business analysis services) Insurance services Investment Banking see PS 92(9) Environmental Consulting Marketing 24 12

13 It s not what the services are called that determines whether or not taxable Reg. Sec (2)(i)(J)-1(c)(1) Look at nature of services rendered Message Center Management, Inc. v. Commissioner, affirmed by CT Supreme Court 6/19/07 Management in the service provider s name plus management agreements with clients but services were held nontaxable Good idea not to mislabel services to avoid confusion 25 Must be rendered to service recipient s Core business activities Human resources management activities 26 13

14 Core business activities activities directly related to service recipient s lines of business, its capital structure, its budgeting and strategic planning Non-Core Business Activities Administration of: Payroll Employee insurance claims Pension funds Food service operations Employee health services Mailroom delivery functions Plants & grounds maintenance Insurance claims against service recipient in capacity as insurer Self-insured claims Investment advice Particular interests of service recipient s members, shareholders or partners 27 Human Resource management activities Hiring Development Job-related Training Compensation Personnel Management Employee Relations Design & Implementation of Employee Benefit Plans 28 14

15 Exclusions Separately stated compensation, fringe benefits, workers compensation, and payroll taxes paid to or on behalf of employees of service provider who has contracted to manage a service recipient s property or business premise Employees must perform services solely at recipient s premises 29 Exclusions (continued) General Partner Services Rendered To A Limited Partnership: C.G.S (a)(37)(DD) Provides that services are only taxable if: 1. Compensation is other than via distributive share of partnership profits 2. General partner (or affiliate) offers such management services to others, including any other partnership. Presumably, otherwise, general partner management services for LP s are nontaxable Caveat: does not necessarily apply to LLC s! 30 15

16 PS 2000(4) Falls under Business Management Consulting Services Pertains to Human Resource Management Activities Applies to job-related training DRS longstanding position has been that services are sourced to where employee is based rather than where training occurs 31 Topics must be directly related to employee s job skills Indirectly related and unrelated are non taxable Courses provided by institution of higher education licensed or accredited by Connecticut Board of Governors are non taxable 32 16

17 General education seminars are non- taxable Refresher courses Courses on current developments in particular field Courses for continuing education credits Service provider is consumer of course materials and meals included in training price 33 Connecticut Policy Statements 2006(8) and 2004(2) PS2004(2) Internet access and online sales of goods and services Internet access is fully exempt However ASP s don t come under exemption Internet access is sourced to home base of purchaser s computer terminal True object is always key Electronically delivered software or digitized property is CDP taxed at 1% (HB 7061 unsigned by Gov. Malloy would raise the rates to 2% eff. 10/1/15 and 3% eff. 10/1/16)--must separately state from any associated TPP 34 17

18 Creation and maintenance of websites is non-taxable but not for long. If HB 7061 gets enacted become taxable effective July 1, 2015, and applicable to sales occurring on or after said date, and to sales of services that are billed to customers for a period that includes said July 1, 2015, date 35 PS2006(8) Computer-related services and sales of tangible personal property CDP Includes: Programming, code writing and modification of existing programs Implementation of software in connection with development, creation, production of canned or custom software or license of custom software Providing computer time, storing and filing information, retrieving or providing access to information Data scanning, creating custom software, computer training, and online access to information 36 18

19 PS2006(8) Computer-related services and sales of tangible personal property (continued) Taxed at 1% (If HB 7061 is enacted 2% eff. 10/1/15 and 3% eff. 10/1/16) Hardware and other tangible personal property is taxed at 6.35% Separately state or unbundle. Otherwise everything is taxed at 6.35% Separately stated hardware installation is exempt (unless hardware is leased rather than sold/purchased) Repair and maintenance of hardware taxed at 6.35% Canned software is tangible personal property taxed at 6.35% (unless delivered electronically-taxed at CDP tax rate) 37 Custom Software For particular needs of a customer Must bear little resemblance to any but basic functions of canned software on which it was based Taxed as CDP service at CDP tax rate then in effect License fees for mere use and possession of custom software are not taxed if separately stated 38 19

20 Possible new affiliate exemption In HB 7061, as amended by House Amendment A, is a provision effective 10/1/15 that CDP services performed by an entity for an affiliate will be exempt Affiliate will be a person who: 1. Directly or indirectly owns or controls; or 2. Is owned or controlled by; or 3. Is under common ownership or control with Another person Owns, is owned and ownership mean ownership of an equity interest or the equivalent thereof of 50% or more 39 Software installation, maintenance, support and upgrades Regardless of whether canned or custom Software maintenance and warranty contracts are CDP whether canned or custom Upgrades of canned software Sale of tangible personal property 6.35% Delivered electronically CDP service at CDP tax rate then in effect Maintenance and warranty contracts providing for phone support and tangible personal property upgrades are taxable at 6.35% unless charges separately stated 40 20

21 Computer Training If job related, taxable at 6.35% If not job related (e.g., attorneys learning how to use ), taxable as CDP service at CDP tax rate then in effect. Computer personnel services taxable at 6.35%. See following slides and PS 2007(7) for details of personnel services rules 41 Software as a service (SaaS) - Cloud Connecticut Taxable (at CDP tax rate then in effect) New York May be Taxable Massachusetts May be Taxable 42 21

22 PS 2007(7) Employment Agencies Brings together an employer and employee for a fee or commission Doesn t apply to procurement of jobs on one-time or short-term basis for independent contractors Service is taxable at 6.35% 43 Personnel Agencies Furnish temporary or part-time help Agency is employer Any business can be considered a Personnel Agency, even a related entity Doesn t have to be in business of furnishing help Service recipient controls work of agency s employee Similar to employee independent contractor analysis Degree of prearrangement of services by agency is key If no prearrangement, will be personnel service All gross receipts are taxable at 6.35%, not just agency s commission 44 22

23 Leased Employees Exception Defined by IRC Section 414 Employee works substantially full-time for service recipient for at least one year Must be agreement between service provider and service recipient Services must be of type historically performed by employees If 75% of agency employees under contract meet definition at commencement, all employees under contract qualify for exclusion, including those that are subsequently added to workforce Exclusion is for all compensation and employment related expenses of leased employees 45 Similar exclusion (to that for leased employees) applies to worksite employees under professional employer agreement between professional employer organization ( PEO ) and service recipient Also, similar exclusion for a media payroll services company Relates to CT s initiative to attract production companies to CT 46 23

24 A contractor s labor (or service) is subject to tax when the service is to: Existing commercial real property; Existing industrial real property; Existing income-producing real property 47 A contractor s labor (or service) is not subject to tax when the service is to: New construction; Owner-occupied residential property; Charitable or religious organizations; Qualifying governmental agencies or their agents; Real property owned by federally recognized Indian tribes when the service is performed in federally recognized Indian country; Low and moderate-income housing; Contracts performed out-of-state; Hospitals and certain other exempt entities; or Real property located within a public right-of-way

25 Contractors are the consumers of materials and supplies used in fulfilling their construction contracts. Contractor pays tax on purchases of physically incorporated materials. Generally, a resale certificate cannot be used when contractor purchases materials. 49 A contractor s service (labor) charge, is determined by subtracting the cost of materials (including tax paid on materials) from the total contract price. Every cent above the contractor s cost of materials that are physically incorporated into the real property AND already-taxed subcontractor services, plus the tax paid on those materials and services, is considered the service charge

26 The charge for labor (or service) includes: The actual labor charge; Any markup or profit on labor; Any markup or profit on materials; Overhead expenses; Tool or equipment purchase or rental, including tax paid on the rental; and Reimbursed expenses incorporated into the bill (whether or not the charges are separately stated). 51 Tax Held in Trust It has been the incorrect practice of some contractors to reimburse themselves for tax they paid on materials out of the tax they collect from their customers. Conn. Gen. Stat (2) provides that tax collected by a retailer is held in trust for the state, and the entire amount of tax collected must be remitted to DRS or refunded to the customer. DRS calls this unjust enrichment when contractors follow this erroneous practice

27 Tax held in trust (cont.) Example: Contractor buys materials for $100 plus $6.35 CT sales tax. Contractor performs taxable services to customer s real property and charges $1,000 for labor and materials (either in lump sum or with materials and labor shown separately) and adds $63.50 of sales tax. To avoid double taxation on the $100 of purchased materials and to tax only the labor portion of the job, contractor deducts $6.35 of materials tax on sales tax worksheet and remits $ Tax Held in Trust (continued) What is wrong with this? Contractor MUST remit what he charges as tax (i.e., $63.50). Correct approach: Contractor bills $1,000 plus $56.75 of sales tax ($1,000 less materials cost of $ x 6.35%). Can show the $1,000 as lump sum or could show materials cost as $ plus labor charge of $ plus sales tax on services of $ Under erroneous approach, customer could apply for refund for being taxed on materials

28 EQUIPMENT RENTAL OR SERVICE CONTRACT? The rental of equipment is a taxable transaction, whereas only certain services are taxable. The terms of the contract, not the billing method, determine if the transaction is for equipment rental or for a service. Service Contract A contract is for service if the equipment owner: Is hired to do a specific job; Maintains complete control over the equipment; and Retains discretion over how and when to perform the job. Equipment Rental When the owner is merely supplying equipment, with or without operators, to a certain site, and the customer controls how and when to perform the contract, the contract is for the rental of equipment. 55 Purchasing Services When a contractor purchases a service while engaged in a contract, the contractor must determine if the service will be consumed or resold. Do not assume a contract with an exempt entity means all services can be bought exempt from tax. Only those services resold by the contractor can be purchased exempt from tax. To purchase services for resale, contractor must issue a resale certificate to the service provider

29 Purchasing Services (continued) Services can only be resold if they become an integral and inseparable component of the service being resold Services consumed by the contractor cannot be purchased for resale. If the contractor is purchasing and consuming a taxable service, the contractor must pay tax to the seller of the service. 57 SN 2012(2): 2011 Legislative Changes to the Procedures Governing Nonresident Contractors Created two distinct classes of NRC s: Verified no bonding or holdback required Unverified subject to bonding or holdback if contract price for entire project is $250K or more

30 REQUIREMENTS OF NONRESIDENT CONTRACTORS SN 2012(2) Verified contractor means a nonresident contractor or subcontractor who: Is registered for all applicable taxes with DRS; Has filed all required tax returns with DRS; Has no outstanding tax liabilities to DRS; and Has submitted a Form AU-960, Nonresident Contractor Request for Verified Contractor Status, and has been verified by DRS to meet the above requirements, plus either: Has been registered for all applicable taxes with DRS for at least three years preceding the contract; or Posts with DRS a good and valid verification bond using Form AU- 961, Verification Bond. Unverified contractor means a nonresident contractor or subcontractor who is not a verified contractor. 59 REQUIREMENTS OF NONRESIDENT CONTRACTORS (continued) Nonresident contractor means a contractor who does not maintain a regular place of business in Connecticut. Person doing business with a nonresident contractor means any person who enters into a contract with a nonresident contractor, and includes, but is not limited to, property owners, governmental, charitable or religious entities, and resident or nonresident general contractors or subcontractors

31 REQUIREMENTS OF NONRESIDENT CONTRACTORS (continued) Regular place of business: Any bona fide office, factory, warehouse, or other space in Connecticut at which a contractor is doing business in its own name in a regular and systematic manner; and Which place is continuously maintained, occupied, and used by the contractor in carrying on its business through its employees regularly in attendance to carry on the contractor s business in the contractor s own name 61 REQUIREMENTS OF NONRESIDENT CONTRACTORS (continued) A regular place of business does not include: A place of business for a statutory agent for service of process or a temporary office whether or not it is located at the site of construction; Locations used by the contractor only for the duration of the contract, such as short-term leased offices, warehouses, storage facilities, or facilities that do not have full time staff with regular business hours; or An office maintained, occupied, and used by a person affiliated with a contractor is not considered a regular place of business of the contractor 62 31

32 REQUIREMENTS OF NONRESIDENT CONTRACTORS (continued) Customer of an Unverified Prime or General Contractor: The customer of an unverified prime or general contractor must obtain proof that the contractor has posted a surety bond with DRS. Failure to do so leaves the customer liable for payment of any sales and use taxes and any income tax withholding owed by the unverified contractor arising from the activities of the contractor on the project, up to 5% of the contract price required to be paid to the unverified contractor. However, compliance does not relieve the customer of the customer s liability for use taxes due on purchases of services from the unverified contractor. 63 REQUIREMENTS OF NONRESIDENT CONTRACTORS (continued) Unverified Prime or General Contractor Must File a Bond: An unverified prime or general contractor must file a surety bond with DRS in an amount equal to 5% of the contract price. DRS will release the surety bond once the contract is complete and the unverified prime or general contractor establishes that it has paid all taxes it owes in connection with the contract and that its unverified subcontractors have paid all of the taxes that they owe in connection with the contract

33 Not all services are taxable in CT, and within each type of taxable service there may be exemptions or exclusions (consider exemption certificate requirement). It is the nature of the service and not what it is called that determines its taxability. Determine the true-object. Sales tax is generally due to the state on the accrual basis (when the service is rendered) and not when the tax is collected from the customer. Service contracts should address sales taxability and indemnification. 65 Consider unbundling taxable services from non-taxable services on the invoice as well as in service contracts. Taxation of services occurs in CT if the benefit of the service is enjoyed in CT. Determine if contractors are non-resident. Consider whether you have nexus in states that would require you to register for use tax collection on taxable services that you render for a customer in that state

34 Review Your Nexus Footprint CT and other states (registration and compliance requirement) Review Significant Service Contracts Not what is the service named but what is the service? Is sales tax specifically addressed in the contract? Review Significant Invoices from Service Providers Is sales tax being properly charged (use tax being remitted)? Are non-taxable services separately stated from taxable services on the invoice? Determine Sales and Use Tax Exposure Consider voluntary disclosure agreements Determine Sales and Use Tax Overpayments Consider claiming refunds 67 Douglas A. Joseph BlumShapiro & Company, P.C. 29 South Main Street, PO Box West Hartford, CT Phone: Fax:

35 Tony Switajewski BlumShapiro & Company, P.C. 29 South Main Street, PO Box West Hartford, CT Phone: Fax: