Tax Type
Corporation Income Tax
Description
Capital gains; Sale of investments
Topic
Allocation and Apportionment
Date Issued
03-27-1995
March 27, 1995
Re: §58.1-1821 Application: Corporate income tax
Dear*************
This will reply to your letter of June 15, 1994, in which you request a redetermination of the department's ruling previously issued to********* (the "Taxpayer") for the taxable year ended June 30, 1991.
FACTS
The Taxpayer realized capital gains from the investment of idle funds during the taxable year ended June 30, 1991. The department previously ruled in Public Document (PD) 94-174 (618194), copy attached, that the capital gains realized by the Taxpayer from the sale of the investments were properly included in income apportioned to Virginia. The Taxpayer contests the department's ruling, and believes that the department's ruling in PD 94-93 (3129194), copy attached, applies to their situation.
RULING
We have reviewed the Taxpayer's facts, and those of PD 94-93, and find little comparison. In PD 94-93, the taxpayer in question made a very substantial investment in the stock of another corporation. The investment in this company was held for 5 years, whereupon a small portion of the original investment was sold. The remaining balance of the investment was sold four years subsequent to the partial sale; the majority of the original investment was held for 9 years. The facts in the case were well developed, and clearly demonstrated that the Taxpayer had made a long-term investment in the stock of another company. The investment was classified and reflected as a long-term investment in accounting records and financial statements. Given the size of the investment, the length of time that the investment was held, and the fact that the investment was not readily marketable, the department was able to conclude the investment was clearly withdrawn from the operational working capital of the taxpayer in question.
-
- In review of the Taxpayer's facts in the instant case, the department found the following facts to be critical to its determination:
1. During the taxable year the Taxpayer made numerous short-term investments with its idle funds. All of the gains were from securities held for less than one year.
2. Without exception, all of the securities which were sold were acquired during the taxable year, and held for a very short duration. The positions were held for a matter of clays (usually ranging from 1 to 14 days), with no security held for more than two months.
3. The investments were classified as marketable securities, and included as part of current assets in the Taxpayer's financial statements.
4. Statements included in Form 10K filed by the Taxpayer with the Securities and Exchange Commission reveal that the Taxpayer invested "excess cash" in equity securities.
- In review of the Taxpayer's facts in the instant case, the department found the following facts to be critical to its determination:
As stated in our previous ruling, the Taxpayer has not demonstrated by clear and cogent evidence that their investments were other than short-term positions taken to maximize the return on working capital balances. The intent to maximize the return on working capital balances does not create a passive investment where the working capital is an integral element of the operational activities. The fact that the income in question is capital gain, as opposed to interest income on a bank account, does not create the presumption that the income is allocable.
In any proceeding relating to the interpretation of the tax laws of the Commonwealth of Virginia, the burden of proof is on the taxpayer. In this particular matter, the Taxpayer must bear the heavy burden of demonstrating that the imposition of Virginia's statute is a violation of the constitutional standards enunciated by the United States Supreme Court in Allied-Signal, Inc. v. Director, Div. of Taxation. 112 S. Ct. 2551 (1992). In fact, the Supreme Court in Allied-Signal affirmed that gains from stock investments which constituted "interim uses of idle funds 'accumulated for the future operation of the taxpayer's business operation"' are apportionable. Based upon the information provided, the Taxpayer has not met the burden of proof. Accordingly, the department's original ruling in this matter must be upheld.
The assessment, as itemized on the attached schedule, should be paid within 30 days to prevent the accrual of additional interest. If you have any questions regarding this ruling, please contact********.
-
-
-
-
-
-
-
-
-
-
-
- Sincerely,
Danny M. Payne
Tax Commissioner
- Sincerely,
-
-
-
-
-
-
-
-
-
-
OTP/8153M
Rulings of the Tax Commissioner