Tax Type
Corporation Income Tax
Description
Allocation of Income
Topic
Allocation and Apportionment
Date Issued
06-21-1999
June 21, 1999
Re: Sec. 58.1-1821 Application: Corporate Income Tax
Dear***
This letter will respond to your letter in which you protest the assessment made on ***** (the ``Taxpayer') for income taxes assessed for the taxable year ended December 31, 1995. I apologize for the delay in responding.
FACTS
The Taxpayer was audited for the 1995 taxable year and several adjustments were made. One adjustment was to add back foreign income taxes reported on Schedule M-1 of the 1995 Form 1120 as a deduction taken on the return, but not on the books. Although not clearly stated on the Form 1120, the auditor determined that this amount was included in the federal return through some netting and combining of income and expenses. The Taxpayer argues that these foreign taxes were never deducted for federal purposes, and therefore should not be added back for Virginia purposes.
The auditor also reduced the denominator of the payroll factor to reflect the amounts shown on the Taxpayer's federal form 1120. The Taxpayer contends that amounts on Form 940 reflect true compensation paid to employees and should be included in the denominator as reported on its original return.
In addition, the auditor determined that the Taxpayer had property in Virginia and was improperly reporting it on a related corporation's Virginia income tax return. As a remedy, the auditor applied the payroll factor to the Taxpayer's total property and allocated that amount to property held in Virginia. All of the Taxpayer's property is in the form of capitalized rents. The Taxpayer maintains that it holds no property in Virginia, and therefore properly calculated its property factor in its 1995 Virginia income tax return.
DETERMINATION
Addition for Income Taxes
Code of Virginia Sec. 58.1-402(B)(4) provides that any net income taxes or other taxes which are based on, measured by, or computed with reference to net income, imposed by Virginia or any other taxing jurisdiction, and deducted in determining federal taxable income will be added to federal taxable income in determining Virginia taxable income.
The auditor included foreign income taxes shown on schedule M-1 in the additions to income taxes. Schedule M-1 is used to reconcile net income per books to federal taxable income. The auditor concluded that even though the foreign income tax was not listed on the Taxpayer's federal income tax return under taxes and licenses, it was netted out somewhere else on the return. The Taxpayer has provided documentation to show that the foreign income taxes were not deducted in determining federal taxable income as reported on the 1995 Virginia corporate income tax return. As such, the auditor's adjustment is reversed.
Payroll Factor
The auditor adjusted the denominator of the payroll factor to include only those salaries, wages, and officers' compensation included on the Form 1120. The Taxpayer contends that officers' compensation is adjusted and transferred among the related entities. As such, while the Taxpayer pays the officers' salaries, some of this compensation is reported on the tax returns of affiliated entities.
In P.D. 90-91, 6/12/90, copy enclosed, the department ruled that gross amounts reported to the Internal Revenue Service on Form 940 will be accepted in determining total compensation paid everywhere provided that all of the employees of the corporation are included in the report. The amount that the Taxpayer included in its payroll factor denominator is the same as the gross amount of wages reported on Form 940. Accordingly, the denominator of the payroll factor as reported on the Taxpayer's original 1995 Virginia income tax return is correct.
Property Factor
The Taxpayer's original return indicates it had no property in Virginia. The auditor concluded that the Taxpayer must have property in Virginia if it has employees in Virginia and adjusted the property factor by applying the payroll factor to the Taxpayer's capitalized rents indicated on its federal return. The Taxpayer contends that its employees used property owned by affiliated entities in Virginia and does not own or lease any property in Virginia.
The Taxpayer has shown that affiliated entities file Virginia corporate income tax returns and include the property in their apportionment formulas. Therefore, the Taxpayer properly reported having no property in Virginia. Accordingly, the assessment will be adjusted.
In accordance with this determination, the assessment for 1995 corporate income taxes will be abated. If you have any questions, you may contact ***** in the Office of Tax Policy at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/18328G
Re: Sec. 58.1-1821 Application: Corporate Income Tax
Dear***
This letter will respond to your letter in which you protest the assessment made on ***** (the ``Taxpayer') for income taxes assessed for the taxable year ended December 31, 1995. I apologize for the delay in responding.
FACTS
The Taxpayer was audited for the 1995 taxable year and several adjustments were made. One adjustment was to add back foreign income taxes reported on Schedule M-1 of the 1995 Form 1120 as a deduction taken on the return, but not on the books. Although not clearly stated on the Form 1120, the auditor determined that this amount was included in the federal return through some netting and combining of income and expenses. The Taxpayer argues that these foreign taxes were never deducted for federal purposes, and therefore should not be added back for Virginia purposes.
The auditor also reduced the denominator of the payroll factor to reflect the amounts shown on the Taxpayer's federal form 1120. The Taxpayer contends that amounts on Form 940 reflect true compensation paid to employees and should be included in the denominator as reported on its original return.
In addition, the auditor determined that the Taxpayer had property in Virginia and was improperly reporting it on a related corporation's Virginia income tax return. As a remedy, the auditor applied the payroll factor to the Taxpayer's total property and allocated that amount to property held in Virginia. All of the Taxpayer's property is in the form of capitalized rents. The Taxpayer maintains that it holds no property in Virginia, and therefore properly calculated its property factor in its 1995 Virginia income tax return.
DETERMINATION
Addition for Income Taxes
Code of Virginia Sec. 58.1-402(B)(4) provides that any net income taxes or other taxes which are based on, measured by, or computed with reference to net income, imposed by Virginia or any other taxing jurisdiction, and deducted in determining federal taxable income will be added to federal taxable income in determining Virginia taxable income.
The auditor included foreign income taxes shown on schedule M-1 in the additions to income taxes. Schedule M-1 is used to reconcile net income per books to federal taxable income. The auditor concluded that even though the foreign income tax was not listed on the Taxpayer's federal income tax return under taxes and licenses, it was netted out somewhere else on the return. The Taxpayer has provided documentation to show that the foreign income taxes were not deducted in determining federal taxable income as reported on the 1995 Virginia corporate income tax return. As such, the auditor's adjustment is reversed.
Payroll Factor
The auditor adjusted the denominator of the payroll factor to include only those salaries, wages, and officers' compensation included on the Form 1120. The Taxpayer contends that officers' compensation is adjusted and transferred among the related entities. As such, while the Taxpayer pays the officers' salaries, some of this compensation is reported on the tax returns of affiliated entities.
-
Code of Virginia Sec. 58.1-412 defines the payroll factor as:
``a fraction, the numerator of which is the total amount paid or accrued in the Commonwealth during the tax period by the corporation for compensation, and the denominator of which is the total compensation ***** paid or accrued everywhere during the taxable year, to the extent that such payroll is used to produce Virginia taxable income and is effectively connected with the conduct of a trade or business within the United States and income therefrom is includable in federal taxable income.
In P.D. 90-91, 6/12/90, copy enclosed, the department ruled that gross amounts reported to the Internal Revenue Service on Form 940 will be accepted in determining total compensation paid everywhere provided that all of the employees of the corporation are included in the report. The amount that the Taxpayer included in its payroll factor denominator is the same as the gross amount of wages reported on Form 940. Accordingly, the denominator of the payroll factor as reported on the Taxpayer's original 1995 Virginia income tax return is correct.
Property Factor
The Taxpayer's original return indicates it had no property in Virginia. The auditor concluded that the Taxpayer must have property in Virginia if it has employees in Virginia and adjusted the property factor by applying the payroll factor to the Taxpayer's capitalized rents indicated on its federal return. The Taxpayer contends that its employees used property owned by affiliated entities in Virginia and does not own or lease any property in Virginia.
The Taxpayer has shown that affiliated entities file Virginia corporate income tax returns and include the property in their apportionment formulas. Therefore, the Taxpayer properly reported having no property in Virginia. Accordingly, the assessment will be adjusted.
In accordance with this determination, the assessment for 1995 corporate income taxes will be abated. If you have any questions, you may contact ***** in the Office of Tax Policy at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/18328G
Rulings of the Tax Commissioner