Tax Type
Corporation Income Tax
Description
Returns of affiliated corporations; Consolidated returns
Topic
Returns and Payments
Date Issued
10-20-1993
October 20, 1993
Re: Ruling Request: Permission to File Consolidated Return
Dear*************
This will reply to your letter dated January 19, 1993, in which you request the Department to reconsider its denial of permission for*********(the "Taxpayer") and subsidiaries to change from the separate to consolidated filing method for the taxable year ended December 31, 1991.
FACTS
The Taxpayer has filed on a separate and consolidated return basis for Virginia and federal purposes, respectively. Based on previously filed Virginia Corporation Income Tax Returns, the Taxpayer and its subsidiaries apportion income using the three factor formula under Virginia Code §58.1-408.
The Department issued a ruling denying permission for the Taxpayer and subsidiaries to change their filing status from separate to consolidated. See Public Document 93-1 (1/6/93). The Taxpayer is requesting the Department to reconsider its decision because the original election to file separate returns was based upon faulty tax advice and would result in distorted Virginia income. The Taxpayer also maintains that the Department violated the Taxpayer's Due Process rights.
RULING
Virginia's long standing policy has been that once an affiliated group has made a filing election, the group may not change its filing status unless permission is granted by the Department of Taxation. Permission to change to or from consolidated returns is generally not granted because the change affects the allocation and apportionment factors, distorts business done in Virginia, and distorts income arising from activities in Virginia. Only upon a finding of "extraordinary circumstances" will the Department grant permission to a Taxpayer to change its filing status. This policy is clearly articulated in Virginia's Corporation Income Tax Regulations (a copy of which was enclosed in the Taxpayer's original ruling letter) and numerous public documents.
In examining this case, when originally filed by the Taxpayer, I found no such extraordinary circumstances to warrant the granting of permission to the Taxpayer to change its filing status. In its subsequent letter the Taxpayer indicated that the decision to file separate Virginia income tax returns was based upon faulty advice received from the Taxpayer's tax accountant and that the corporations are so intricately linked that only a consolidated return would provide an equitable calculation of the apportionment factors. This, however, is not a sufficient reason upon which to base a decision to permit the Taxpayer to change its filing status.
If the Taxpayer believes the filing of Virginia returns on a separate basis would distort income from business done in Virginia in a specific year, it may request the Department to make an equitable adjustment pursuant to §58.1-446 of the Code of Virginia for that taxable year. However, a request for such an adjustment is not automatically granted. In order to qualify for the adjustment, the Taxpayer must meet the strict requirements prescribed in Virginia Regulation 630-3-446 (a copy of which is enclosed). An adjustment under §58.1-446 is only available for taxable years beginning on or after January 1, 1 993.
The Taxpayer also contends that the Department violated the Due Process clause of the United States Constitution by making its ruling in connection with the Department's review of the Taxpayer's 1991 returns. The Department's decision to deny the Taxpayer's request was based on well-established and well-documented policy. The Taxpayer need only review Virginia regulations and previously issued public documents to find the basis of the Department's decision. The decision would have been the same regardless of whether or not the Taxpayer had filed its 1991 Virginia income tax returns.
Accordingly, the Taxpayer's request to change from the separate to consolidated filing method is denied
Sincerely,
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner