California Governor Gavin Newsom recently signed AB 37 into law, which legalizes licensed state cannabis businesses including marijuana growers, processors, and sellers to take deductions for their business expenses on state income tax returns. It exempts these businesses from federal law section 280E, which categorizes cannabis sales under the "illegal sale of drugs" and therefore prohibits these businesses from writing off expenses as any other business would. To read AB 37 in full, click here.
The California Department of Tax and Fee Administration (CDTFA) recently released its first annual report on the administration and enforcement of the state's sales and use tax programs. During FY 2017-18, the CDTFA managed nearly 1 million sales and use tax permits and processed over 2.2 million sales and use tax returns, resulting in the collection of more than $70 billion, including over $1 billion in delinquent taxes.
For months, many out-of-state retailers have been working to determine the extent to which they may owe tax to California for sales made in prior years, even though they had no physical nexus in California. Following the U.S. Supreme Court's decision in Wayfair v. South Dakota, California took the position that out-of-state retailers who utilize Amazon to hold inventory and make sales to customers in California have sufficient nexus to meet the requirements to collect and pay sales/use tax to California. This was true even if the business sent inventory to Amazon outside of California and Amazon made the determination to store inventory in California.
The California Department of Tax and Fee Administration (CDTFA) recently announced it is offering relief to certain out-of-state retailers (referred to as "marketplace sellers") who are considered to be engaged in business in the state of California based solely on their use of in-state fulfillment centers to store inventory. Qualifying retailers may be entitled to reduced tax liabilities, penalties, and interest, effective June 27, 2019.
The Treasury Inspector General for Tax Administration (TIGTA) recently released a report finding that accuracy-related penalties are not often proposed in audits of large businesses, and the penalties are generally not sustained on appeal. Between FY 2015 and FY 2017, TIGTA found that of the $773 million in proposed penalties that went to the Office of Appeals, there was a reduction of those penalties totaling $765 million. Of some 4,600 business return exams studied, which resulted in additional tax assessments of $14 billion, only 6 percent had accuracy-related penalties assessed.
On April 25, 2019, the Governor of California approved Assembly Bill No. 147, which sets the economic nexus threshold at $500,000 in sales or deliveries to California, cumulative over 12 months. This will come as some relief to many out-of-state retailers affected by last year's U.S. Supreme Court case, South Dakota v. Wayfair, Inc., the case that overturned the long-standing principle set in Quill Corp. v. North Dakota requiring physical presence for a retailer to be subject to state sales and use taxes.
Beginning in 2010, the Panera Bread Foundation, a non-profit related to the popular restaurant chain, piloted a limited experiment in the "gift economy," whereby customers could "pay it forward" or "pay-what-you-can" at select cafes. The experiment, unfortunately, failed due to lack of financial viability. In a double-hit, the Internal Revenue Service (IRS) now claims the experimental cafes owe back taxes to 2012 on annual revenues exceeding $7.5 million.
Arizona Attorney General Mark Brnovich recently asked the U.S. Supreme Court for permission to file suit against the State of California over the $800 minimum business tax imposed on investors in certain LLCs. Brnovich contends that the California minimum tax, and California's related collection efforts when investors or businesses do not pay, is illegal because the investors have "purely passive investments in California companies." In addition, since the $800 minimum tax is deductible on Arizona tax returns, the California practice is costing Arizona more than $484,000 annually.
The Internal Revenue Service (IRS) recently issued final regulations and related guidance on the new qualified business income (QBI) deduction created by the 2017 Tax Cuts and Jobs Act. Eligible business owners and taxpayers can now deduct up to 20 percent of their qualified business income or real estate investment trust dividends on their federal tax return beginning after December 31, 2017.
The California Department of Tax and Fee Administration (CDTFA) announced this week that, starting April 1, 2019, out-of-state retailers whose sales for delivery into California exceed $100,000 or 200 deliveries will be required to register with California and collect and pay over sales tax. Businesses that meet these thresholds for a single local jurisdiction will also need to collect and pay over that district's use tax, in addition to the state tax.