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Bloomberg BNA regularly spotlights the insights of state and local tax professionals at Grant Thornton. In this installment of Grant Thornton Insights, Jamie Yesnowitz and Guinevere Seaward Shore discuss state consumption taxes, and their similarities to the GOP's Blueprint for a destination based tax plan for corporations, and Value-added Taxes.
By Jamie C. Yesnowitz and Guinevere S.M. Seaward Shore
Jamie C. Yesnowitz is a Principal and the State and Local Tax – National Tax Office leader based in Grant Thornton LLP's Washington, DC office. Guinevere S.M. Seaward Shore is a Manager in Grant Thornton's state and local tax practice in the Metro DC area, focusing on income/franchise tax, unclaimed property and indirect tax consulting for clients in various industries, including technology, energy and manufacturing. The authors would like to thank Megan Packett, SALT Senior Associate in Baltimore, and Kiley Shetler, SALT Senior Associate in Philadelphia, for their research assistance; and also Vito A. Cosmo, SALT Managing Director in Philadelphia, for his guidance and expertise in developing this article. The authors would also like to thank Adam Raschke for his assistance in reviewing the article; Adam is a Senior Manager and the US VAT practice leader for Grant Thornton. Finally, the authors want to recognize Priya D. Nair, SALT Manager at the National Tax Office, for her hard work and assistance in all aspects of this article, from its conception to its publication.
While the last major reform of the Internal Revenue Code took place in 1986, certain federal tax reform proposals currently under consideration could dramatically change the scope of how the tax is calculated. One of these proposals would result in a move from an income-based calculation to a regime that more resembles a consumption-style tax. Although significant changes to the federal tax treatment of businesses and individuals have been proposed in detail, the impact that such reform may have on state and local taxation is highly uncertain. In fact, the only area of relative certainty is that since many states reference the Internal Revenue Code when determining taxable income for state income tax purposes, significant change to the state income tax base would result if a move from an income tax to a consumption-style tax were to occur.
In June 2016, the House Republicans put forth a major proposal, referred to as the “Better Way” or “GOP Blueprint,” that replaces the current corporate income tax with a “destination-based-cash-flow-tax.” [President Donald Trump, during his campaign for presidency, also put forth a federal tax reform proposal. The Trump Tax Plan, among other provisions, aims to simplify the Internal Revenue Code and grow the U.S. economy by reducing the corporate income tax rate. Donald J. Trump, Tax Reform That Will Make America Great Again, athttps://assets.donaldjtrump.com/trump-tax-reform.pdf. On April 26, 2017, the Trump Administration announced some additional details regarding its tax reform plan, proposing to drastically cut corporate and individual income tax rates, yet did not include border-adjustment provisions. Press Release, The White House, Briefing by Secretary of Commerce Steven Mnuchin and Director of the National Economic Council Gary Cohn (Apr. 26, 2017), at https://www.whitehouse.gov/the-press-office/2017/04/26/briefing-secretary-commerce-steven-mnuchin-and-director-national.] Under the GOP proposal, corporations would be taxed based on where their products are sold; current law imposes income tax on corporations based on where their goods are produced. [House GOP Conference, A Better Way, Our Vision for a Confident America: Tax, June 24, 2016, athttp://abetterway.speaker.gov/_assets/pdf/ABetterWay-Tax-PolicyPaper.pdf.]
While the GOP Blueprint proposal implies that the United States will adopt some form of a Value-Added Tax (“VAT”) or tariff, the border adjustment mechanism technically is neither. In addition, while consumption taxes are relatively new concepts for the federal tax system, similar taxing regimes have been attempted by various state legislatures. The following article will examine consumption taxes from a state and local tax perspective.
Simply put, sales tax and VAT regimes impose tax on consumption, not income. Both taxing regimes also generally follow destination principles in order to determine the appropriate tax rate and jurisdiction for the transaction. The similarities, however, end here. Also known as goods and services tax in some countries, VAT is a general consumption tax that imposes tax on an incremental basis at each stage of production based on the value added; the net tax is paid at the end of the supply chain, similar to a sales tax. In contrast, sales tax is only imposed on the end consumer of a product or service. Sales tax regimes allow manufacturers and resellers to avoid imposition of sales tax on purchases that are ultimately consumed in production or ultimately resold; essentially, when the purchaser is not the end consumer. In VAT systems, while each purchaser is required to pay VAT based on the value added, a business can deduct any VAT paid for certain purchases when they charge tax to their customer, assuming the business is fully taxable. As a result, the government ultimately receives the gross margin on each transaction, as each participant in the supply chain is presumably deducting a portion of VAT until the end consumer receives the good or service.
Unsurprisingly, the constant collection, remittance, payment and deduction occurring in the VAT supply chain imposes increased administrative and accounting burdens on taxpayers. In contrast, economists advocate that VAT regimes stimulate the economy, as opposed to an income tax, because there is no taxation of savings or investments. In addition, government revenue is likely to increase as businesses are incentivized to comply with collection in order to receive a credit for VAT paid. These two benefits are the likely impetus for the GOP Blueprint incorporating many VAT characteristics.
Under the GOP proposal, the United States corporate income tax would change in five significant ways:
It is the border-adjusted aspect of the GOP Blueprint, along with the ability to fully expense capital investment and the inability to deduct interest payments, which has caused many to decree it a VAT system in disguise. VAT regimes, however, have a broader tax base, in part because the VAT includes all value-added at each stage of consumption and does not permit businesses to deduct payroll. In contrast, under the GOP Blueprint, businesses are entitled to a deduction for compensation paid to workers and employees, narrowing the tax base that would otherwise form the basis of a pure VAT. The treatment of wages is the biggest difference between the GOP Blueprint and traditional European VAT regimes; the proposed treatment under the GOP proposal shifts the incidence of taxation from the corporation to the individual.
In order to understand how consumption taxes differ from regular sales taxes and the current GOP proposal, a brief discussion of the different calculation methods is necessary. While the Credit Invoice (Reduction) Method and the Subtraction Method are the most well-known and widely used, the Addition Method is referenced mainly for theoretical purposes.
This is the most common form of a traditional VAT. A business pays VAT on their purchases and collects it on their sales. Registered traders are permitted to reduce the amount of VAT that they are liable to remit to the government in the form of a credit equal to the amount of VAT paid in connection with those taxable supplies to other registered tax payers. This credit is also available for amounts on which a taxpayer has self-accrued. As long as a business can pass the tax on to its customers, the business does not bear the burden of the tax, and it acts as a collection agent for the government.
The Credit Invoice (Reduction) Method is considered the most efficient collection method for a VAT. Typically used in Europe, it requires that everyone involved in the production and distribution divisions keep careful records of taxes paid so they can claim a credit; otherwise they are liable for the full burden of the tax.This method eliminates the VAT on goods and services used by a fully taxable registered trader, but leaves in place the VAT on sales to final consumers. A border adjustable tax allows different tax rates to be applied in different countries, and consumers will only pay the rate that applies in their country.
Currently the Subtraction Method for calculating consumption tax is only used in Japan.While this method is the economic equivalent to the Credit Invoice (Reduction) Method, its taxable base calculation is different. Businesses calculate their taxable base by subtracting their expense from their sales (cost of labor is not deductible).
A major advantage of the Subtraction Method is the lack of additional burdensome record-keeping that is required under other methods. It does not impose an invoice requirement, it looks more like a corporate income tax, and it does not show up as a separate charge on an invoice to the consumer. The main disadvantage to this method is that it requires a uniform rate on all goods; however, this method allows for a border adjustable component. This method resembles the GOP Blueprint most closely than the Credit Invoice (Reduction) Method, except for the way in which payroll is treated.
This is the opposite of the subtraction method. Businesses add the costs of their inputs instead of subtracting them from their sales to calculate their tax base. It implies more of a theoretical application which is not commonly used, and is currently not implemented by any country.
While a border-adjusted approach to U.S. taxes is a novel concept, states and local governments across the country already impose a basic consumption-style tax in the form of sales and use tax imposed on many goods and certain services. In addition to the standard sales and use taxes, several states have also attempted to enact legislation designed to impose more aggressive consumption taxes on certain goods and services in the past, and several states have alternative regimes with expanded sales tax bases.
As far as states that take a comprehensive approach to consumption tax and impose sales and use tax on a broad number of services, with limited exceptions, Hawaii, New Mexico and South Dakota lead the way. In Hawaii, the general excise (sales) and use tax is essentially a privilege tax that is levied on taxpayers for any and all business conducted within the state. As a result, the excise tax is imposed on all gross receipts earned from sales within Hawaii, regardless of whether the transaction is the sale of tangible goods or services, with very few exemptions. [Haw. Rev. Stat. § 237-13; Haw. Admin. Rule § 18-237-1(a)(1).] The New Mexico gross receipts tax is similar to a sales tax, except that tax is imposed on the seller and not the ultimate consumer. Taxpayers are required to pay tax on gross receipts derived from performing services in the state, unless such services are eligible for the limited exemptions or deductions. [N.M. Admin. Code tit. 3 § 184.108.40.206(A).] South Dakota's statute provides that all services are presumed taxable unless specifically enumerated exempt, yet unlike Hawaii and New Mexico, South Dakota provides more extensive exemptions for certain service transactions. [S.D. Codified Laws §§ 10-45-4, 10-45-4.1 & 10-45-12.1.]
The expansion of the traditional sales tax base through the taxation of services is a trend throughout the U.S., and represents increasingly aggressive consumption tax regimes at a state and local tax level. Many jurisdictions have attempted to enact legislation to increase the scope of their consumption taxes, with varying success. The following section examines some of the high-profile legislative efforts to expand traditional state sales and use tax bases.
Due to the fact that its Constitution prohibits a tax “upon the income of natural persons,” [Fla. Const. art. VII, § 5(a)] Florida has been heavily dependent on consumption taxes as a means of securing state revenue for many years. According to a national consensus, in 1986, Florida derived 55.1 percent of its state revenue from a general sales tax. [U.S. Department of Commerce, Bureau of the Census, State Government Tax Collections in 1986, 1987.] During the late 1980s, however, Florida attempted to increase the amount of revenue it derived from consumption taxes by expanding the sales tax to services.
Traditionally, like many states, Florida imposed sales tax on the retail sale of tangible goods, and exempted services from the sales and use tax base. However, in an effort to raise state revenues to provide for improved infrastructure, in 1986, the Florida legislature enacted a broad-based tax on services consumed in the state (although the effective date of the sales tax on services was postponed for one year). [Ch. 86 166 (Fla. Laws 816, 819), 1986.] The expansion of Florida's sales tax base was met with outrage and controversy. In an effort to repeal the tax, national advertisers and advertising media launched a campaign, some of the nation's largest retailers cancelled or reduced advertising in Florida to protest the new sales tax, and one group channeled their revolutionary ancestors by pouring Lipton's Instant Tea into Florida's harbor. [Walter Hellerstein, “Florida's Sales Tax on Services,” 41 Nat'l Tax J. 1, March 1988.] These antics proved effective as the Florida legislature repealed the sales tax on services less than 6 months after its effective date, simultaneously raising the general sales tax rate from five to six percent in order to account for a portion of lost state revenue. [ Id.]
Almost 30 years later, Massachusetts followed Florida in quickly enacting and repealing a consumption tax on services. In 2013, Massachusetts developed legislation under which the definition of “services” that are taxable was amended to include “computer system design services and the modification, integration, enhancement, installation or configuration of standardized software” and to exclude “data access, data processing, or information services,” which were to remain exempt from sales and use tax. [Ch. 46 (H.B. 3535), Laws 2013, codified as Mass. Gen. Laws ch. 64H, § 1.] In addition, the legislation provided that the term “computer design services” included “the planning, consulting, or designing of computer systems that integrate computer hardware, software or communications technologies that are provided by a vendor or third party.” [ Id.]
Following passage by the Massachusetts legislature in the state's transportation financing bill, Governor Deval Patrick vetoed the bill. Undaunted, the legislature voted on July 24, 2013 to override Gov. Patrick's veto, and the expanded sales tax on services was set to become effective just a week later on July 31. [Ch. 46 (H.B. 3535), Laws 2013, §§48, 49, 89, codified as Mass. Gen. Laws ch. 64H, § 1, repealed by Ch. 95 (H.B. 3662), Laws 2013.] Interestingly, the Massachusetts Department of Revenue introduced guidance in the form of a technical information release the day after the legislative vote. [Massachusetts Department of Revenue, Technical Information Release 13-10, July 25, 2013.] The release stated that the Department considered consulting and evaluation services with respect to existing computer systems to identify deficiencies and needs, and services to prepare a business to use modified software, such as training, to be non-taxable under the new legislation. Also contained within the release was guidance regarding filing, payment, and other transition procedures.
While the Massachusetts legislature had expected to collect $160 million of annual revenue from the sales and use tax on computer and software services as originally enacted, the legislation was nevertheless repealed almost as quickly as it was enacted. Two months later, Gov. Patrick signed legislation that eliminated this provision with retroactive application to the bill's effective date on July 31, 2013 [Ch. 95 (H.B. 3662), Laws 2013.] Provided in the retroactive repeal was removal of the expanded statutory definition of services that became effective on July 31, 2013, and a requirement that the state refund all tax that was remitted during the two-month period that the expanded definition was active. [ Id. at §§ 4, 8.]
This is not the first time that Massachusetts unsuccessfully attempted to expand its sales tax base; in 1990, the Commonwealth enacted legislation to subject services to sales and use taxation, but eliminated the provision prior to its effective date. [Acts of 1990, chs. 121 and 151, 1990 Mass. Legis. Serv. 147, 151 ( adding Mass. Gen. Laws ch. 64H, § 2A), repealed by Acts of 1991, ch. 4, § 7, 1991 Mass. Legis. Serv. 19.]
In 2007, Michigan adopted a sales tax on a wide range of personal services; this was also repealed before the legislation's effective date. [Act 93 (H.B. 5198), Laws 2007, repealed by Act 145 (H.B. 5408), Laws 2007.]
Similarly, Maryland unsuccessfully proposed to expand its sales and use tax base to include professional services, such as management consulting and tax preparation services. The proposed legislation was met with outrage and coordinated resistance by many professional groups, including CPAs, and eventually died in the legislature's regular session. [H.B. 1051, Laws of 2012.]
The Michigan Single Business Tax (“SBT”) was enacted on January 1, 1976. [Former Mich. Comp. Laws § 208.1 et seq.] It replaced seven existing taxes, including the corporate income tax and a personal property tax on inventory. The primary motivation behind the SBT was the desire to reduce dramatic fluctuations in revenue directly related to the business cycle. It was designed to simplify and reduce the cost of business tax preparation and processing within the Michigan Department of Treasury. Although the SBT replaced the corporate income tax in Michigan and employed apportionment formulas, it was primarily a consumption-based tax in nature, as its tax base included all consumed resources.
As an outlier to most taxes imposed on entity-level businesses, the SBT suffered from a great deal of complexity, as well as frequent constitutional and other challenges to its validity. In the early 1990s, taxpayers argued that the inclusion of compensation paid outside of Michigan should not be included in the ‘value-added’ tax base of the SBT as it represented value-added outside of the state. Taxpayers often challenged the determination of the capital acquisition deduction in the courts. [ See, e.g., Caterpillar, Inc. v. Department of Treasury, 440 Mich. 400, 488 N.W.2d 182 (Mich. Sup. Ct. 1992); JeffersonSmurfit Corp. v. Department of Treasury, 248 Mich. App. 271; 639 N.W.2d 269 (Mich. Ct. App. 2001).] There were also issues surrounding the treatment of royalties and interest and the fairness of the SBT related to the Commerce Clause. All of these issues led to refund claims made against the SBT totaling over $500 million dollars. [Gregory A. Nowak, Janelle C. Punch, and Rebecca M. Pritchard, “The Rise and Fall of the Michigan Single Business Tax,” Corporate Business Taxation Monthly, March 2007.]Subsequently, the SBT was repealed on December 31, 2007 and replaced by the Michigan Business Tax on January 1, 2008. [H.B. 4367, Laws 2007.]
New Hampshire currently imposes a Business Enterprise Tax (“BET”) at a rate of 0.72 percent, which operates in a similar fashion to non-traditional consumption taxes. [N.H. Rev. Stat. Ann. § 77-E:2.] It applies to all businesses regardless of legal form. The BET most closely resembles a VAT in the sense that the enterprise tax value is calculated based on a company's gross margin. [N.H. Rev. Stat. Ann. § 77-E:1(XV).] For example, if a company sells an item for $100 but paid $90 for the materials that went into creating the item, the company would be subject to tax on that $10 difference. That difference (or value-added amount) is known as the ‘enterprise value tax base’ and is defined in law as the total amount of wages and salaries, interest, and any dividends paid by a given company. [N.H. Rev. Stat. Ann. § 77-E:1(IX).] In general, BET is imposed on the total gross receipts or enterprise value of a company doing business within New Hampshire. [N.H. Rev. Stat. Ann. § 77-E:5.]
Among current state tax regimes, gross receipts taxes most closely resemble VAT practices as the tax is levied on all transactions, including intercompany purchases of supplies, raw materials and equipment. Several states have replaced either their income tax or sales tax with gross receipts taxes.
Delaware does not impose a sales or use tax, but subjects most companies conducting business within its borders to a license tax based on gross receipts earned in the state. [Del. Code Ann. tit. 30, § 2301.] Likewise, local Virginia jurisdictions impose a license fee on gross receipts earned within the city or county limits, known as the Business Professional Occupation License fee; however, Virginia also subjects taxpayers to state and local sales and use tax obligations. [Va. Code Ann. § 58.1-603; Va. Code Ann. § 58.1-3700 et seq.; 23 Va. Admin. Code § 10-500-10 et seq.] In Ohio, the income tax was replaced by the Commercial Activity Tax (“CAT”) in 2005. The CAT is an annual privilege tax measured by a businesses' taxable gross receipted derived from Ohio sources. [Ohio Rev. Code Ann. § 5751.01 et seq.] In 2015, Nevada introduced its Commerce Tax; collected annually, the commerce tax is imposed on gross revenue derived from the state. [Nev. Rev. Stat. § 363C.200.] In Washington, the Business & Occupation (“B&O”) Tax is often reported on a combined excise tax return along with the state and local sales and use tax. Washington's B&O tax employs economic nexus standards and requires taxpayers with substantial nexus to pay tax on all gross receipts derived from customers within the state. [Wash. Rev. Code §§ 82.04.150, 82.04.220.]
Currently, West Virginia is considering legislation that proposes a gross receipts tax, modeled after Ohio's CAT. [S.B. 484, Laws 2017.] In addition, there are two bills in the state legislature that have the effect of subjecting professional services to sales and use taxation in West Virginia. [S.B. 484, Laws 2017; H.B. 2933, Laws 2017.] The historical and recent legislative efforts by states to expand the reach of consumption taxes and raise revenue appear to be consistent tendencies in state taxation.
Recent trends suggest that some states, particularly those in the Central and Southeast regions, are moving to minimize or abolish corporation and/or personal income taxes, and move forward with a stand-alone consumption or enhanced sales tax. One example of a state that is moving in this direction is North Carolina, which has enacted legislation in the last several years to streamline its corporation income tax system and expand its sales tax base [H.B. 97, Laws 2015.]
For corporate taxpayers, it was announced that the corporate income tax rate would decrease from 4 percent to 3 percent (based on the General Fund revenues reaching a specified level of tax collection in any fiscal year). [N.C. Gen. Stat. § 105-130.3C.] In addition, North Carolina altered the determination of state income tax base before apportionment by enacting an addition modification for net interest expense to a related member [N.C. Gen. Stat. § 105-130.5(a)(25)], and also eliminated certain subtraction modifications. [N.C. Gen. Stat. § 105-130.5(b)(6), (7), (12), (13), (15), (18), (19), (22) (repealed).] The legislation also prescribed the phased enactment of a single-sales factor apportionment formula and eliminated the bank privilege tax. [N.C. Gen. Stat. §§ 105-102.3 (repealed); 105-130.4(i).] Among other changes, the legislation also changed the way in which the franchise tax base would be calculated. [ See generally N.C. Gen. Stat. §§105-120.2; 105-122.]
Individual taxpayers were rewarded with a reduction of the overall income tax rate, and a corresponding increase of the applicable state standard deduction. [N.C. Gen. Stat. §§105-153.5(a)(1); 105-153.7(a).] In order to achieve these reductions to the income tax system, North Carolina expanded its sales tax base to subject additional services to taxation. Under the legislation, consumption of the repair, maintenance and installation services became subject to the general sales tax. [N.C. Gen. Stat. §105-164.4(a)(16).] In addition, the sales tax base was further expanded through amendments to the definition of retail trade, as applicable to an exclusion for real property contractors. [N.C. Gen. Stat. §105-164.3(34a).] In March 2017, the North Carolina Senate approved legislation that would lower the limit on income taxes in the state constitution to 5.5 percent, from the current 10 percent maximum. [S.B. 75, Laws 2017.] The bill is now with the state's House of Representatives for consideration.
The effect of this change in emphasis from income to sales taxes could be dramatic. While the consumer may see benefits in a higher paycheck due to a lower level of state income tax withholding, such benefits may be short-lived, as amounts paid to consume a broad array of items may eventually offset income tax reductions. Likewise, a business that pays less corporation income tax may be in a better position from a cash flow perspective, but again may have to pay more on its purchases that are subject to sales tax as the scope of that tax expands. It will be interesting to see how these changes could result in long-term effects on the economy, as consumers may reduce or even avoid purchases of items that either become subject to a sales tax, or become taxed at a higher rate, to retain the benefits of a lower income tax rate. These are also concerns that confront the federal and state governments should the GOP Blueprint, or a similar tax proposal, become effective.
Given the long and diverse history of state and local tax reform efforts in enacting and expanding consumption tax systems, federal lawmakers would be wise to learn from the states' experiences. In many states, the repeal or drastic reduction of corporate and individual income taxes in exchange for higher consumption taxes or broader consumption bases was a tradeoff that was able to successfully run the gauntlet of the legislative process. However, in cases where expanded consumption taxes were considered or even enacted, organized efforts by impacted parties often achieved swift repeal of these provisions. Likewise, leaders of the federal tax reform effort will need to consider how to complete its mission without having the tax appear to be slanted against a specific business industry, which will be difficult to do. In addition, a movement towards a more consumption-based federal system is likely to have direct implications on the average consumer and voter, yet another group demanding attention in the ongoing debate regarding federal tax reform.
The shift towards a more consumption-tax-based regime at the federal or state level poses several concerns. If enacted, such a tax regime could greatly affect consumers, who are unable to bear the increased cost that consumption taxes impose on themselves and at various points during the production process, depending on the type of consumption tax imposed. In addition, while businesses might enjoy reduced income tax burdens, the increased costs associated with promoting local manufacturing, such as with the GOP Blueprint, could also result in negative market trends. While the need to manufacture more goods in the U.S. may lead to an increase in domestic jobs, the reliance on foreign labor and the abrupt need to transition away from such labor could have dire consequences on businesses that are not equipped for such a fundamental change to their business plan.
While these appear to be federal concerns, states will also need to consider how they will conform or adapt to any future amendments to the federal tax system. The recent amendments to North Carolina's tax regime foreshadows what many states may have to consider if the GOP Blueprint is adopted — an overall reduction of the income tax base that inspires an expansion of the sales tax base—in order to achieve optimal conformity with federal tax legislation. One thing is certain, the old idiom that “nothing is certain but death and taxes” may no longer apply to the traditional corporate and individual income taxes in the United States, at the federal, state and local levels.
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