Tax Type
Income Tax
Description
Request to use an alternative method of allocating and apportioning income.
Topic
Allocation and Apportionment
Pass-Through Entities
Records/Returns/Payments
Date Issued
06-10-2013
June 10, 2013
Re: Ruling Request: Allocation and Apportionment of Income
Dear Sir:
This will respond to your request that ***** (the "Taxpayer") be permitted to use an alternative method of apportionment for Virginia income tax purposes.
FACTS
The Taxpayer, a limited partnership headquartered in ***** (State A), had Virginia source income for the taxable year ended December 31, 2012. During the year, the Taxpayer sold real estate located in State A. The Taxpayer claims that using Virginia's statutory method of apportionment substantially increases the amount of income subject to tax by Virginia. According to the Taxpayer, because it is permitted to use separate accounting to attribute income in other states, it should be able to use separate accounting in Virginia. The Taxpayer, therefore, requests permission to allocate income to Virginia based on separate accounting for the 2012 taxable year.
RULING
If the entire business of the pass-through entity is not deemed to have been transacted or conducted within the Commonwealth, then such pass-through entity's income from Virginia sources is the portion of income allocated and apportioned to Virginia in the same manner as corporations. See Public Document (P.D.) 07-150 (9/21/2007). Accordingly, partnerships that have income that is subject to tax in Virginia and at least one other state are required to apportion income as provided in Va. Code §§ 58.1-408 through 58.1-421.
The United States Supreme Court has recognized that allocation and apportionment of income is an arbitrary process designed to approximate income from business transactions within a state. As long as each state's method of allocation and apportionment is rationally related to the business transacted within a state, then each state's tax is constitutionally valid even though there may be some overlap. See Moorman Manufacturing Company v. G. D. Bair, etc., 437 U.S. 267, 98 S.Ct. 2340 (1978). Thus, the Taxpayer must show that the statutory method of apportionment produces an unconstitutional result.
An apportionment formula used as an approximation of a corporation's income reasonably related to the activities conducted within a taxing state will only be disturbed when the taxpayer has proved by "clear and cogent evidence" that the income attributed to the state is in fact "out of all appropriate proportion to the business transacted . . . in that state," Hans Rees' Sons, Inc. v. North Carolina, 283 U.S. 123, 135 (1931), or has "led to a grossly distorted result," Norfolk & Western Railroad Company v. Missouri State Tax Commission, 390 U.S. 317, 326 (1968).
Title 23 of the Virginia Administrative Code (VAC) 10-120-280 provides that the statutory method of allocation and apportionment is inequitable if: 1) it results in double taxation of the income, or a class of income, of the taxpayer; and 2) the inequity is attributable to Virginia, rather than to the fact that some other state has a unique method of allocation and apportionment.
The Department's long-standing policy holds the use of separate accounting in disfavor. See Department of Taxation v. Lucky Stores, Inc., 217 Va. 121, 225 S.E.2d 870 (1976), P.D. 85-61 (3/18/1985), P.D. 86-88 (4/30/1986), P.D. 92-85 (6/1/1992), P.D. 06-13 (2/7/2006), P.D. 07-75 (5/18/2007), and P.D. 11-138 (7/28/2011). The Taxpayer has not provided any evidence that demonstrates the statutory apportionment method is inequitable. The fact that separate accounting produces a different result from the statutory method is not sufficient to show the statutory apportionment method is inequitable.
In addition, the Taxpayer has not followed the established procedure for requesting an alternative apportionment method. The policies that apply to requests for an alternative method of allocation and apportionment under Va. Code § 58.1-421 are well established. In order for a taxpayer to request an alternative method of allocation and apportionment, the taxpayer must file the return using the statutory method and pay any tax due. Next, the taxpayer is required to file an amended return proposing an alternative method within the time prescribed for filing amended returns claiming refunds. The amended return must include a statement of why the statutory method is inapplicable or inequitable and an explanation of the proposed method of allocation and apportionment. The Department will not grant an alternative method of allocation and apportionment unless it determines: (1) the statutory method produces an unconstitutional result under the particular facts and circumstances of the taxpayer's situation; or (2) the statutory method is inequitable because it results in double taxation and the inequity is attributable to Virginia, rather than another state's method of apportionment. See Title 23 VAC 10-120-280.
In the context of a ruling request, when a taxpayer does not provide the Department with the opportunity to examine the records underlying the claim, the taxpayer cannot demonstrate that Virginia's factor formula produces an unreasonable or distorted result. Further, because constitutional apportionment is designed to approximate income from business transactions within a state and not result in actual income from business transactions within a state, a taxpayer's argument that Virginia's statutory method does not reflect actual income in Virginia cannot be accepted.
The use of an alternative method is allowed only in extraordinary circumstances where the need for relief has been demonstrated by clear and cogent evidence. Based on the facts presented, the Taxpayer has not demonstrated that the statutory method is unconstitutional or inapplicable as it would apply to the Taxpayer. Furthermore, the Taxpayer's request is not in accordance with the procedure for requesting an alternative method of allocation and apportionment outlined in Title 23 VAC 10-120-280. Based on the foregoing, I must deny the Taxpayer's request to use an alternative method of allocating and apportioning income.
The Code of Virginia sections, regulations, and public documents cited are available on-line at www.tax.virginia.gov in the Laws, Rules & Decisions section of the Department's web site. If you have any questions regarding this ruling, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
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- Sincerely,
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Craig M. Burns
Tax Commissioner
AR/1-5351824026.o
Rulings of the Tax Commissioner