Tangled Web: How Businesses Are Navigating States' Varied Tax Regimes; A Bloomberg BNA Q&A With Dan Effron, Partner-in-Charge of Grassi & Co. SALT Practice

The Bloomberg BNA Tax Management Weekly State Tax Report filters through current state developments and analyzes those critical to multistate tax planning.

Dan Effron, CPA and partner-in-charge of Grassi & Co.’s State and Local Tax (SALT) practice, recently sat down with Bloomberg BNA's Jennifer McLoughlin to discuss states’ adoption of varying regimes to capture more tax revenue from out-of-state businesses and how businesses are wading through the new landscape of tax schemes. He describes the difficulties he confronts with his job in an evolving market: helping “business owners who are struggling to keep up with the tax laws” as they evolve in states “looking for new sources of revenue to fill the coffers.”

Daniel L. Effron, CPA, is the partner-in-charge of State and Local Tax Services at Grassi & Co. Dan has more than 30 years of experience working in both public and private accounting and has extensive experience delivering all aspects of tax planning and compliance services to clients in various industries. Working closely with senior-level executives, Dan provides outsourced specialized services and ensures his clients realize maximum tax savings with respect to their business and personal transactions.

Bloomberg BNA:

There has been a trend of states trying to capture digital remote sellers by redefining physical presence. Is there a reason for this surge of state activity?

Effron:

I think it boils down to this: states trying to come up with new sources of revenue to fund the government and the struggle to determine how to tax the new American service economy along with the constant change in technology. And if you really think about it, this goes for individuals as well, what better way for a state to raise some revenue than by enacting some new taxes or widening the net of who is responsible for those taxes, than to do that to out-of-state companies? Or sometimes out-of-state individuals who can't vote and have no say in the legislative process. So, I think to answer your question, what's driving it is really just the constant need for states to fund their government.

It's been very interesting from my standpoint, watching the states struggle with the changing economy in this country. The American economy has gone from a manufacturing economy, where companies used to build things and make things and ship things. Now we're much more of a service economy. And, also, the technology out there has just exploded both at the business and consumer levels. Now you can go online. You can order things via cloud computing. You don't have to get into your car and go to the brick-and-mortar store anymore.

Today companies are expanding their business not necessarily by building any stores. So the states have been figuring out ways to capture that type of business and pass laws that are subjecting them to both income taxes and sales taxes.

Bloomberg BNA:

What were some of the most notable ways in which states were trying to reach out and grab hold of these remote businesses?

Effron:

What I've seen over the last several years is, again, just a widening of the net or a stretching of these court decisions that have stood for years that basically describe or permit a state to assess their taxes. This all goes back to the whole concept that we're talking about, which is nexus. So, you have these cases, these benchmark cases, like this Quill decision—a case decided by the United States Supreme Court. The premise of that Quill decision was that a company was required to have some level of a physical presence in a state before that state was allowed to compel it to collect sales taxes in this particular case. And by physical presence, that meant that the company had to be doing something in the state. Either it had to have employees there, even one employee. Or it had to be storing inventory. Or open up an office.

And now these states have been really pulling at that by, in my opinion, almost stomping on that decision, because now they're passing laws that require no physical presence whatsoever, in different ways. So, for example, in the sales tax arena, you have a number of states that have enacted something commonly referred to as click-through nexus. That concept was all borne right here in New York State when Amazon and New York State went head to head on that battle. And the state of New York was successful. And then you have another type of nexus called economic nexus that many states have passed, including New York starting in 2015. That also has no connection to a physical presence within the borders of the state.

And I'm almost waiting, in fact I wish, I'm waiting for some big company I think is going to decide to challenge one of these types of nexus, either economic nexus or click-through nexus or use of an intangible in the state. That's a third type of nexus. There is a very famous case in South Carolina. It's called the Geoffrey case. And if you're familiar with Geoffrey, and that's Geoffrey with a “G,” that giraffe is the logo of Toys “R” Us. So, in this very famous Geoffrey case, the Toys “R” Us company that holds that trademark was found to be doing business in South Carolina by the mere fact that it was licensing the intangible asset, which is the trademark, to all the Toys “R” Us stores in South Carolina.

You have many more states now that are picking up on that concept. There's a recent decision in Iowa of the same situation. It was with Kentucky Fried Chicken. And the state of Iowa determined that, again, the company that held that intangible asset of the trademark of Colonel Sanders, the fact that they were licensing the trademark to their KFC restaurants in Iowa. Boom. They now have nexus in Iowa, even though they don't have any physical presence there.

So, it's just this tug and pull at all of these, long-standing provisions that are allowing the states to increase the tax filing burden on out-of-state companies. And it appears that until someone stands up to challenge one of these state statutes this trend will certainly continue. Maybe no company will take it to court because of what happened with Amazon. You can't be a much bigger company than Amazon. And they challenged the New York law. They took it to court. And they lost. Amazon appealed the New York decision to the United States Supreme Court who denied cert. on the case. I hope that one of these statutes does make its way to the Supreme Court so that a federal court can finally weigh in and lend some conformity across state borders.

So, it's just this tug and pull at all of these, long-standing provisions that are allowing the states to increase the tax filing burden on out-of-state companies.

Bloomberg BNA:

There have been attempts in the past to get this to the Supreme Court level, but they are continually denied cert. Now we're starting to see states become more assertive. For example, Alabama is catching everyone's attention with its economic presence rule. And Commissioner Magee has said publicly, “we welcome a challenge.”

Effron:

I agree. There have been many challenges to these new nexus rules. The states are continuing to win and uphold these laws. It may be that the Quill decision is going to go by the wayside. I'm not a lawyer. But I just find it interesting that these states can essentially stomp on what was held in that decision. And they keep winning in these court battles. Very, very interesting.

Bloomberg BNA:

Coming from the CPA perspective, what are you hearing from your clients? And how do you go about advising your clients regarding these new state regimes?

Effron:

That's a great question. And what I'm hearing from clients is generally nothing. And what I mean by that is, think about it, you're the CFO of a company or the controller of a growing company. They're now starting to do business in other states. Maybe you decide that, in order to expand your territory, you're going to hire a sales rep, one sales rep in Texas. Most of the businesses out there, unless they have their own robust internal tax department, are not aware that they may have just created a filing responsibility for their company in Texas by hiring.

So, what that means to me, and I assume to most other CPAs practicing in public accounting, is it's up to us to keep tabs on how our clients are conducting business. And then inform them, hopefully ahead of time, of what state taxes they are now liable for based on us having a general understanding of how they do business. So, for example, you take a topic like click-through nexus. I've yet to find one client who, when I explain that to them, has ever even heard of it or knows what it is. That's a little bit more esoteric for a client.

As an example, one of our manufacturing clients made a simple move that I'm sure would help the growth of their business. They hired one person to work for them in the state of Texas as a sales rep. We didn't know about it at the time. As a result of that, the state of Texas, through the state's own increased use of technology, became aware that this company was conducting business in Texas. And the bottom line was, in Texas, as in most other states, the presence of a single employee is going to create nexus for the company. So, the company, they get caught by surprise. In a worst case scenario, if this went on for years and years and years, a state can come to the company and say, “hey, we've just become aware that you've had a presence in Texas for x number of years. And since no tax returns have ever been filed, that would mean there is no statute of limitations, and we want tax returns from you for the last 10 or 11 years.”That's the extreme result, but I've absolutely seen that happen.

So, I think the answer to your question, when you say “what have I heard from companies,” is I generally hear nothing because they're not aware of all of these rules pertaining to nexus, which is where we come in as their CPAs and their advisors, to keep them abreast. And it's really becoming a challenge. We really have to know in detail how a client, or how a company, is conducting business. Where are their people located? Are they doing business on the Internet? And now with these economic nexus provisions, to me they're the worst because there you create nexus merely by having sales into a particular state. Like New York's for example, which again, New York enacted economic nexus for corporations starting in 2015. So, now, an out-of-state company who sells into New York and has $1 million or more of sales into New York, boom, that's it. They've now decided you have nexus in New York. Again, without any other type of physical presence. So, not only do we need to know where our clients have employees and where they have inventory and offices, but now it's also important that we look at their revenue per state in every state to see whether they have exceeded any of these economic presence laws.

One of the more interesting aspects of practicing in the state and local area is that each state is free to do what they want within the context of the law. So, New York's economic nexus, again, is a $1 million threshold. California, which has economic nexus, uses an indexed threshold of $500,000 in revenue. Each state puts their own stamp on these laws, which means I have to keep my eyes and ears open for the legislative activity in 50 states. It's not one jurisdiction like the IRS.

One of the more interesting aspects of practicing in the state and local area is that each state is free to do what they want within the context of the law.

Bloomberg BNA:

Is there any slack that states may give you? For example, you mentioned that sometimes you can't keep track of all the personnel. It might be one sales rep goes into the state. But the company doesn't realize that's going to create nexus. And the CPA and the accountants don't realize that fact. Or, with retroactive application, all of a sudden a state decides to go back however many years, 5, 10 years. Are states allowing at least a little bit of leeway in the beginning so that businesses can keep up with these changes?

Effron:

I think on things like click-through nexus, and I keep coming back to that because it seems to me that is just one of the most strange types of laws. It's just such a strange scenario that, the answer is yes. And I've only been involved in a state getting involved in click-through nexus one time. And that's because click-through nexus is basically a brand new law that the states have designed. So, the answer is yes, they, in my experience with one state, it happened to be Pennsylvania, they did allow some level of leniency. However, again the bottom line is when a state passes a law, and the law will always have an effective date, they have every right in the world to fully come at you all the way back to whatever that effective date is. So, that's why, again, it's becoming just more time consuming to work in this area from both my standpoint and clearly from the businesses' standpoint.

If we as the CPA are fortunate enough to uncover with a client a filing status that they may have missed, nearly every state in the country offers a program that's referred to as voluntary disclosure. Voluntary disclosure, as the name implies, allows a company to essentially come forward to the state and raise your hand and say, “hey, Oklahoma, we realize we should have been filing either a sales tax return or an income tax return in your state for the last six years. We just realized it. Our CPAs advised us. And we want to come forward and voluntarily get on your books and records and become a compliant taxpayer in the future.” So, under those scenarios, voluntary disclosure agreements are great for the taxpayer because if you are eligible to participate, the states under those programs will generally only go back somewhere between 3, 4 years at the most. They'll also generally forgive or abate all of the penalties that would be assessed. And sometimes you can even get a break on interest.

But the only way a voluntary disclosure works is, again, you have to raise your hand to the state before they find you. If the state finds you first, there is no voluntary disclosure. And they do have the power to go back to year one. Sometimes that can be negotiated away. But it's much better to do it through the use of a voluntary disclosure program. We do a lot of work with voluntary disclosures in states all across the country because, as long as their disclosure fits right into what I just said, which is that most companies aren't even aware of these new nexus requirements. So we generally find out through our own questioning. And then we suggest to the client that they participate in one of these VDA programs. And they work really, really well.

Bloomberg BNA:

Is there a difference, in terms of cost or in terms of burden, with a particular nexus regime? And is there one type of a regime that may be less burdensome than others?

Effron:

I hadn't thought of it that way. We've discussed all these different ideas that the state legislatures are coming up with: click-through nexus, economic nexus, affiliate nexus. Again, they're all driving to the same thing. They're just ways to pull more out-of-state taxpayers and businesses into that state for tax purposes.

For example, if you compare economic nexus to click-through nexus. The first thing I want to point out again is that click-through nexus is only applicable to sales tax. It is not an income tax item. It's probably easier for a company to comply with the terms under the economic nexus provisions, because in many states it's simply a question of “have you exceeded a certain level of dollar sales to customers in a particular state?” Compared to click-through nexus, where you need to read in detail the statute and figure out if in fact you have an agreement with another company and you have your web site shown as a link on the other company and there has to be a compensation element. From that standpoint, I would say that some regimes, such as economic nexus, are just easier to understand from a business person's standpoint, than something like click-through nexus.

But, in the end, they're all driving to the exact same thing. Which is how do you get more taxpayers into the fold?

Bloomberg BNA:

Is there going to be a tipping point where states become so aggressive that it's going to destroy the small, mid-size business class?

Effron:

I don't know that we'll ever get to that point. But, I do believe it could be one of the factors that's going to cause a decline in small or closely held businesses. You can't blame it all on the tax system. I mean, look, you just have to look at things like Home Depot and Lowes. These big box stores that have just gone in and put local stores out of business. State taxes, it's a factor. And I do think it has an impact on the survival of small businesses. But it's not the sole factor by any means.

Bloomberg BNA:

Do you believe there could there be a congressional solution to this issue if the Supreme Court does not take a case? Historically, the Supreme Court has denied cert. in challenges. And, while we don't know if or when a case will reach the Supreme Court, in the meantime, what is the solution?

Effron:

Again, until you get a national response from a group like the U.S. Supreme Court, I don't think there is going to be a universal solution. Because you're going to have each of the states continuing to pass their own legislation. Now, a lot of this legislation is very similar from state to state. For example, economic nexus is economic nexus. It's just that each state passes its own little tweaks on it. So, the burden is still ridiculous. If you had 50 states that all enacted an economic nexus standard, but each one of them used different levels of sales or different levels of payroll, you might feel that economic nexus is now a universal threshold. But you've still got 50 different versions of the statute floating around out there, which makes compliance with it very, very difficult.

I will say that, as difficult as it is for businesses to comply with these standards, I also think it's going to be very difficult for the states to figure out how to audit and go after companies. A lot of people don't think about it from that angle. Something like click-through nexus, how is New York or Pennsylvania, or one of these states that has this on the books, going to attack and look for businesses that aren't complying with it? It's just as cumbersome on their side as it is on the businesses' side.

If you had 50 states that all enacted an economic nexus standard, but each one of them used different levels of sales or different levels of payroll, you might feel that economic nexus is now a universal threshold. But you've still got 50 different versions of the statute floating around out there, which makes compliance with it very, very difficult.

It's not even from the states' standpoint, it's not so much how many clicks are happening. Every state department of revenue has an audit division. And their job is to go out and audit companies that they're aware of. And also to find companies that they are not aware of and pull them onto the tax rolls. So, how is a state going to be out there looking for companies that aren't even in their state to find out whether they are in fact following these click-through nexus rules? It's going to be very, very difficult on their part as well. That's why, I know, I haven't seen any audits yet by any state regarding things like click-through nexus or even economic nexus.

Bloomberg BNA:

If states have not found a way to handle these audits, does that encourage taxpayers to initially resist these regimes, while the states work to implement the statutes?

Effron:

I wouldn't approach it that way. Once a law is passed, it's the law. And our role, my role, or our firm's role as CPAs and advisors, is to comply with the law. And advise our clients to do so as well. If there are any planning opportunities, sure. Look, it's always a situation where you advise your client of what a particular law is, and then they may make a business decision themselves to either follow it or choose to take their chances and see what happens.

Bloomberg BNA:

With the recent deal on the Internet Tax Freedom Act, there are now rumblings about congressional movement on the Marketplace Fairness Act and comparable remote seller legislation. Are your clients looking for a particular statute? And does your firm prefer one form of legislation over the others?

Effron:

Well, my role here as any other state and local tax practitioner, my role is to keep my ear to the ground on legislation, again both at the state level and at the federal level. From the client standpoint, seems like the Marketplace Fairness Act, again that has been rumbling around for years. Different versions. Nothing's been enacted yet. I still do feel that somewhere down the road, a version of the MFA will be passed. It just seems to be inevitable, again, because of the way that the economy is evolving in this country. From our clients' standpoint, they don't care whether it's version A or version B. They just don't want it because of two reasons. One, they do think it's patently unfair and again flies in the face of these other long-standing court decisions that describe what constitutes nexus. And, two, they don't want it because of the increased time and expense of compliance. It's that simple.

So, you have these competing factions. One, the business owners who are struggling to keep up with the tax laws as they stand now. And the state tax treasurers, who are all looking for new sources of revenue to fill the coffers and meet their state budgets.

So, you have these competing factions. One, the business owners who are struggling to keep up with the tax laws as they stand now. And the state tax treasurers, who are all looking for new sources of revenue to fill the coffers and meet their state budgets.

So, to answer your question, I don't really have a preference. Marketplace Fairness Act, the actual underlying statute itself, there hasn't been a lot of tweaking of that. What's been happening with the MFA is the house or the senate. They are trying to stick other provisions into the bill, like our politicians are so good at doing. For example, that Internet Tax Freedom Act that you mentioned earlier, I think somebody wanted to take the original Marketplace Fairness Act, but put an addendum on there with the Internet Tax Freedom Act. They start to combine these together. And the bottom line is, none of them get enacted.

The only thing that is good, is when the Multistate Tax Commission gets involved and comes to a decision on an issue. And they get involved in many, many issues. That's a good thing because at least in the MTC, they are bringing some level of uniformity.The problem is that not every state is a full member of the MTC. Some states are. Some states are not even members of the Multistate Tax Commission, so they are not bound to follow any of the provisions. But at least it's a step in the right direction.

Bloomberg BNA:

Different entities are proposing varying language for nexus legislation, including the Multistate Tax Commission and the National Conference of State Legislatures. Do any of your clients get involved in trying to influence or offer their opinions with these entities about one form of language versus the other? Or is this something that businesses are simply waiting to see what happens at the state level?

Effron:

Generally I think you'll only see the biggest, the bigger and the biggest, of the companies playing a role, or trying to play a role in crafting legislation or influencing legislators. Because, again, on top of everything else, a small or medium-sized company, I don't think is going to have the manpower or the costs to worry about hiring lobbyists or doing anything else necessary to influence legislatures. I think you'll see that with, again, the largest of the large companies out there. But not so much with the mid-sized entrepreneurial, small-sized companies that tend to make up most of our client base here at Grassi.

So, the conversation about things like Marketplace Fairness Act, economic nexus, I find that, if I'm out meeting with a client and having lunch or a cup of coffee, and I bring it up, yeah, I'll get some opinions from the client. But I can't recall the last time a client has called me and said, “Dan, I read the Marketplace Fairness Act and I think version A versus version B is better for us.” I have not seen that. And, again, it just goes to the fact that this is our role as CPAs. It's our role to keep our clients informed and compliant with all of these ever-changing tax legislations.

Bloomberg BNA:

And this area is not slowing down.

Effron:

No, no. And again, the pattern seems to be the same. It always starts with one of the big, I don't know if I call it the big four or big five, it's California, New York, Texas, Florida. Those are the big states that typically are the first to come up with these new ideas. And then more and more states just seem to hop in line. In my experience, it's California and New York. With California really being at the top of the states coming up with these new ways of pulling in out-of-state companies. And then as soon as one state does it, and then another states does it, and then the other state legislatures start looking at it and say, “oh, that's a good idea. Why don't we enact something like this?” But they may say, “well, let's enact it, but let's change this provision or add that provision.” And then, this is where again you get to, you have uniformity in concept, but not uniformity when you dig into all the nitty gritty details of how it works in each state.

A real example that I just dealt with last week is, market-based sourcing is a whole other new regime that states are coming up with. It affects service businesses. And market based sourcing, I think at last count, has been adopted by say, maybe somewhere around 20 states. But each state has, is doing it slightly different from the next. Market-based sourcing is a way that a company is required to source their revenue to the various states. And the sort of overriding theory of market-based sourcing is that the revenue from providing services is sourced to where the client is located. Well, that phrase, “to where the client is located,” that's been interpreted in many different ways as the states come on board with that concept. So, there you have a concept, which is being adopted by many states. But again no uniformity in how it's being adopted when you look at the actual language of the statutes.

Bloomberg BNA:

What is your opinion regarding the Multistate Tax Commission's allocation and apportionment regulations, specifically their role in resolving potential sourcing conflicts between states? How can you reconcile potential differences between the states?

Effron:

Again, the only way to reconcile that is if each state passes a statute and uses the same language. As long as you have consistency in how to apply a regime, whether it's market-based sourcing or anything else, I think then you'll end up with a fair result. You get unfair results when, again, state A chooses to interpret a law and defines a concept in one way. And state B, they may pick up the same law, but in the detail, they may define a particular term in a different way that ends up with just different application.

And, I keep saying, we're honing on the unfair results. I'll also say that we have had clients that actually reap great benefits out of all of this for the exact same reason. It's just a matter of what states they happen to be doing business in. I've seen it. I've seen businesses who, just because of the combination of states that they're in, actually are really benefiting by all of this confusion and inconsistency. It's easy to talk about the businesses that are having unfair results. But there are businesses out there that are seeing a benefit to this.

And, again, I don't think any of this will go away until we have consistency across all the states. At least let's get consistent with, let's just say, everyone adopt some version of market-based sourcing. Now you have two completely competing versions of how to source revenue from service businesses. You have the new market-based sourcing. And you have the old what was called cost-of-performance methodology. And that's just leaving too much confusion.

At least let's get consistent with, let's just say, everyone adopt some version of market-based sourcing. Now you have two completely competing versions of how to source revenue from service businesses. You have the new market-based sourcing. And you have the old what was called cost-of-performance methodology. And that's just leaving too much confusion.

Bloomberg BNA:

How are you able to keep up with all of these changes in 50 different states?

Effron:

It's a big challenge. The way I do it, the way I've developed it over the years, is a function of, I always start with sort of the big states, which in my mind are New York, California, Texas and Florida. The firm I work for, Grassi & Co., we are a New York-based CPA firm. We have three offices in and around New York City. But, even though we don't have offices all over the country, I guarantee without a doubt, our clients are doing business all across the country. So, you don't have to be working on a company like General Motors or Apple or IKEA to have a need to keep tabs on this. So, we subscribe to the same research services that any of the other firms subscribe to. And it's really part of my task to just read and keep up to date on all state tax issues.

So, again, what I've done is, I always read about California and New York and Texas and Florida. And I've done some stratification of our particular client base, where we can run queries in our tax software, for example in 2014, what state returns did our clients file. And that helps me, maybe if I saw that we had a client who has a lot of activity in Wyoming for example, I would make sure to pay attention to Wyoming. Wyoming is probably not a state that is going to get a lot of attention, just because there's not much going on out there.

That's the only way to attack it. I also have tried a tactic where I break the country up into regions and I assign a region, like a group of states to somebody on the staff at the company. And I say, “ok, it's your job,” And I show them how to do it and where to do it. “It's your job each week, when we get our weekly updates, to let us know if there is anything significant happening in your assigned group of states.” It's definitely a challenge. And we're not a big four firm. Those big four firms have groups of people that do nothing but sit in an office and keep tabs on all of these changes. It's more of a challenge in the non-big four firms like us, but I really think we do a great job of it.

I spend a lot of my time working with the other partners in the firm on their clients, because they're the ones who are closest to Grassi. We do reach out and I've done some work for outside Grassi clients. But the bulk of the work that I get in the state and local tax group is being generated by our own clients. And it's all these changes that are kind of keeping the pipeline filled for me and keeping me very busy.

Bloomberg BNA:

How did you come to work in the tax industry?

Dan Effron:

I majored in accounting at the University of Texas at Austin. At that point, I believe it was probably in my second year in the accounting program, and the bulk of the curriculum there is probably like most colleges, which is basic accounting and auditing. But I did enroll in one tax course as an elective. And for some reason, for me, I took that tax course and I just found it to be an interesting area. Much more interesting to me than regular auditing. I just felt that everybody, whether it's businesses or individuals, everyone is always interested in their taxes and how to pay less. And, it was just one of those things that hit me right away, ‘OK, that's the area I wanted to specialize in, tax.' And that's exactly what I did. I graduated, I did just enough auditing experience to become a CPA. Ever since then, I've been practicing in the tax area.

During the first part of my career, I was with a large regional firm and then an international big six accounting firm. At that point in time, everyone in the tax area was practicing as generalists. So, my background, for many, many years, is very broad. Federal taxes, state taxes, individuals, corporations, partnerships. But I became more interested in the state and local tax area after being assigned to work on some very large, multi-state engagements at the firm. Once I decided to go into tax, then you have the opportunity as you develop your career to become a little bit more specialized in a particular area.

And I was always interested in state and local taxes. Not just income taxes, but other taxes including sales taxes and property taxes as well. I then began taking targeted training in the SALT area. Even though, today, I still don't practice 100 percent of the time in state and local taxes. I estimate that I now spend approximately 70 percent of my time in the SALT area on my own clients and the clients of my partners.