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The Look-Through Approach To Sourcing Taxpayer Receipts: Is It Worth The Fuss?

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Over half the states that levy a corporate income tax employ the single-factor receipts formula to apportion corporate income for sales other than tangible personal property.

Market-based sourcing is the predominant approach to assigning service receipts to the appropriate state, but three states — Delaware, Mississippi, and Texas — use the service performance method, and four states — Alaska, Florida, Kansas, and North Dakota — use cost of performance.

Notably, although Florida’s regulations appear to require service providers to apportion receipts using the cost-of-performance approach, the state has released a string of technical assistance advisements that direct taxpayers to use market-based sourcing.

In states that have enacted market-based sourcing, statutory law generally prescribes a cascading, four-tier approach to determine where a taxpayer’s receipts should be sourced. Which tier applies to a particular taxpayer depends upon the extent of its customer’s information contained in the taxpayer’s books and records.

However, some revenue agencies have gone beyond statutory law, implementing by rule or on audit a “look-through” component to the market-based sourcing.

In such cases, despite that the taxpayer has contracted with its customer for services, these states look beyond the taxpayer’s customer to the customer’s customer to conclude that the latter is the party that has received the ultimate benefit of the taxpayer’s service.

Thus, for the out-of-state taxpayer, if its customer’s customer is in the state where the taxpayer is under audit, that state will lay claim to receipts that would otherwise be assigned to the taxpayer’s home state, thus increasing the taxpayer’s income tax liability to the auditing state.

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When Is the Look-Through Approach Appropriate?

The appropriateness of the look-through approach to sourcing taxpayer receipts raises a few interesting questions.

First, there is no privity of contract between the taxpayer and its customer’s customers. For sourcing purposes, even if the taxpayer knows the identity and locale of its customer’s customers — which, in some cases, it does not — that knowledge is irrelevant.

The taxpayer is paid for its services by the customer, not the customer’s customers. Also, assigning receipts based on a third party that a revenue agency perceives to have received the ultimate benefit of the taxpayer’s services is suspect. The taxpayer’s customer’s customers undoubtedly benefit from the taxpayer’s services.

The actual benefit, however, falls on the taxpayer’s customer because the taxpayer’s services enhance its customer’s ability to provide its customers with the service for which they have contracted with the taxpayer’s customer. Of course, there may be instances in which the look-through approach might be appropriate, but if so, that can only be determined case by case, depending on the peculiarities of a taxpayer’s business. Yet that does not mean a look-through approach is always appropriate.

Although there is little case law on the validity of the look-through approach, thus far, most courts have sided with the taxpayer. Two examples will suffice.

In TD Ameritrade, an administrative law judge ruled that the taxpayer’s receipts paid by two New Jersey banks for marketing, recordkeeping, and support services regarding a fund that collectively belonged to the taxpayer’s brokerage clients could not be sourced to New York because it was the banks who were the taxpayer’s customers, not the individual brokerage clients.

The fees paid by the banks were for the services enumerated above, and for the banks’ use of, for its own purposes, a large pool of funds that belonged to the taxpayer’s brokerage clients. As none of the fees paid by the banks to the taxpayer for its services occurred in or were from a New York customer, the taxpayer’s receipts could not be sourced to New York.

The ALJ further found that even if the taxpayer’s brokerage clients, and not the banks, were the taxpayer’s customers, the fees paid by the banks could not be sourced to New York because the taxpayer’s services were not performed in the state.

In short, the banks were the taxpayer’s customers because they were the parties that benefited from the taxpayer’s services, not the taxpayer’s brokerage clients.

In LendingTree TREE , a Washington appellate court came to a similar conclusion. The taxpayer provided a service that matched potential borrowers to participating lenders.

It, not the lenders, collected the borrower’s information and then distributed it to the pool of lenders. On audit, the revenue agency determined that the taxpayer misallocated its income because it made the allocations by the lender’s location.

According to the agency, the taxpayer should have used the borrower’s location because that was the party that benefited from the taxpayer’s service, justifying its position with the argument that the taxpayer’s service is to procure customers for the lenders by promoting, marketing, and maintaining its website.

The court didn’t see it that way. The taxpayer, it said, uses its website to drive potential borrowers to use its services, not the services of individual lenders.

Indeed, the court pointed out, lenders and potential borrowers have no contact with each other until the lender reaches out to the buyer through the taxpayer’s website.

The value to the lender of the taxpayer’s service is the referral of a potential borrower; moreover, the lender’s follow-up with the borrower is no guarantee that a loan will be granted. Thus, the court concluded, the taxpayer’s receipts were properly allocated to the lender’s location, not the borrower.

Meanwhile, in California . . .

In March the California Franchise Tax Board released Legal Ruling 2022-1, which explains the state’s new approach to market-based sourcing. The ruling supersedes two earlier taxpayer-specific rulings, Chief Counsel Ruling (CCR) 2015-3 and CCR 2017-1.

CCR 2015-3 concerned a taxpayer that provided to its business customers integrated financial information services and analytical applications that, in turn, provided financial services to its own customers. By aggregating data from hundreds of disparate databases, the taxpayer provided its customers a portal through which it could access the financial data needed to adequately serve its customers.

At issue was the proper method to allocate the taxpayer’s receipts where both its customer and the customer’s customers benefited from the taxpayer’s service.

The ruling concluded that the taxpayer provided a non-marketing service to its customer because it was the customer that mainly benefited from the taxpayer’s service rather than the customer’s customers. The value of the taxpayer’s service to its customer was its ability to use the data to enhance its own business operations.

The ruling also contrasted a non-marketing service with a marketing service, which a taxpayer provides to promote a customer’s product, service, or other item, which may warrant a look-through approach to determine where the benefit of the service was received.

CCR 2017-1 concerned a taxpayer that provided healthcare plan administrative services that its healthcare plan customers would have needed to undertake themselves. Like CCR 2015-3, the ruling concluded that the taxpayer provided non-marketing services in that the benefit was to relieve the healthcare plans of their respective administrative burdens.

Thus, the taxpayer’s receipts should be sourced to the location where the healthcare plans had their current operations. The two rulings were interpreted as distinguishing non-marketing services from marketing services to determine where the customer’s benefit was received for sourcing purposes.

Legal Ruling 2022-1 did away with the distinction between non-marketing services and marketing services. It poses four questions for the taxpayer:

  1. 1. Who is the customer?
  2. 2. What service is being provided to the customer?
  3. What is the benefit of the service the customer is receiving?
  4. Where is the customer receiving the benefit?

On the first question, the ruling states that only the value to a taxpayer’s customer is considered for the analysis, even though a third party may also benefit.

The second question concerns the contract between the taxpayer and the customer, which identifies the service being provided.

The ruling answers the third question with the statement that the value of the service is the direct effect of the action or function being performed — that is, whether the service provided directly supports the taxpayer’s customer’s business operations.

The fourth question, where the benefit is received by the customer, is the location where the direct effect of the service affects the taxpayer’s customer.

The ruling goes on to present three scenarios that illustrate the application of the four questions. Depending upon the type of service the taxpayer provides to its customer, the examples clearly demonstrate the application of the look-through approach.

For example, the third scenario posits a hypothetical in which the taxpayer hires a subcontractor to provide consulting services that it would otherwise provide to a third party. According to the FTB’s interpretation, the taxpayer is classified as the customer.

Yet it defines the service provided as consulting services to the third party, even though the contract is between the taxpayer and the subcontractor. The FTB’s reasoning is that the subcontractor’s services are being used by the third party, and this is where the impact of the benefit occurs for the taxpayer.

The difficulty is that the legal ruling, by jettisoning the CCRs’ nonmarket and market service distinction, will make it harder for taxpayers to determine whether a service has a direct operational benefit to a taxpayer’s customer, or whether a look-though approach is warranted.

Unfortunately for taxpayers, given the uncertainties in sourcing receipts that are sure to follow in the wake of the ruling, litigation is almost guaranteed to follow.

Conclusion

In the past two decades, over half the states have adopted the single-factor receipts apportionment formula, and most have adopted market-based sourcing.

The question, however, is where and how to determine the right market — that is, the state where the receipts should be assigned. At present, more states are using the look-through approach, looking at the taxpayer’s customer’s customer to decide where the market lies.

Unfortunately, the look-through approach is sometimes applied by revenue agencies when it is clearly not warranted, and because there is no real framework for determining when look-through is appropriate, we are bound to see a great deal of litigation over the proper sourcing of taxpayer receipts in the future.

Finance

Planning An Estate: How A True Wealth Financial Binder Can Help

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Letitia Berbaum AIF is COO & Partner at The Zandbergen Group, specializing in wealth management for families, widowers, and entrepreneurs.

Recently, I’ve found myself and many of my clients watching our parents age. Along with that, we’ve seen the struggle that can ensue when they are trying to manage their affairs. If your parents are beginning to need a little more support around the house like mine are, you might also want to think about who is managing their finances and what support they may need around their financial estate.

For many people, finances can be a taboo topic that’s rarely discussed within the family or throughout childhood. This can lead to a lot of anxiety in adulthood if your aging parents need help managing their financial ecosystem but you don’t know how to talk to them about it. Helping your parents manage their finances becomes all the more difficult when you don’t know where to find bank statements, or how to access their electric account to pay the bill and ensure the lights stay on.

If starting this conversation is giving you anxiety, I have a few tips to slowly bridge the gap so you can open up the conversation about money and help those you care about to become as financially fit as possible.

Gather Everything In One Place

An important early step to take on this journey is to gather all of the information that’s part of their financial ecosystem in one central location. Whether you’re doing this for your parents or yourself and future caregivers, the goal is to make it easy for someone to take over financial management and be prepared for the unexpected. I like to call this a “True Wealth Financial Binder.”

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A True Wealth Financial Binder should include everything within a person’s financial sphere and act as a complete and comprehensive resource covering their assets and liabilities.

This process allows you to be prepared now, instead of having to react later. For example, if your parents need medical assistance in order to remain in their home, how do they plan to pay for that care? Their True Wealth Financial Binder could provide that answer, whether it be a savings account or insurance.

Some of the items that you want to consider including in this binder are:

  • All current financial investment statements, such as:
  • End bank statements for checking and savings accounts
  • A list of any CDs or bonds
  • Individually held stocks
  • Year-end investment statements
  • Retirement account statements
  • Pension statements
  • Insurance statements
  • Any estate planning documents (will, trust information, powers of attorney)
  • End-of-life wishes
  • A list of all assets (This doesn’t have to include the value of the assets, just a list of what they are and where they’re located.)
  • Safety deposit box access instructions
  • Locations of passwords and other confidential information
  • List of key advisors’ names, including financial advisors, bankers, accountants and attorneys

Including liability statements for:

  • Mortgages
  • Lines of credit
  • Credit cards
  • Auto loans
  • Notes receivable and payable
  • Most recent tax return

This is a resource you and your parents can put together independently, and of course, it is a tool their financial planner can help with, as well. I recommend that the True Wealth Financial Binder is updated regularly, ideally annually, or when any significant change occurs with their finances.

While end-of-life and finances can be a sensitive subject, putting together this binder is an act of love. It makes the process of taking over someone else’s estate easier during what can be an emotionally and financially challenging time.

Use The True Wealth Financial Binder To Open Dialogue

Putting together a True Wealth Financial Binder is a great exercise for cataloging all assets and ensuring there’s a plan for each of those assets. If you’re working with your parents to create their True Wealth Financial Binder, focus on gathering information that will be useful later when they need support and not the value of the assets.

Use the idea of putting together the True Wealth Financial Binder as a way to open dialogue around the topic and how you can best support them as they age. Involving your parents in the binder preparation process can make the process feel collaborative instead of nosy or accusatory.

When discussing what should go into your parents’ True Wealth Financial Binder, be sure to ask about their insurance policies and check who is listed as the beneficiary on all financial assets. This includes insurance policies as well as bank and investment accounts. This information can get lost or change internally over time, so it’s good to regularly check or update account beneficiary information.

Having the correct account beneficiary information will simplify the process of settling their estate and ensuring that the account passes to the person or entity they want it to.

Get Acquainted With Your Loved Ones’ Financial Team

During the discovery process of putting together your parents’ True Wealth Financial Binder, you may find that their financial advisors have retired or will retire soon. This is an opportunity to work together to find new financial advisors that can support this process.

If you already have a financial team that you like, you can introduce your parents to your financial team during this process. No one has to share any numbers or specific information, but let your family get to know the financial people on your team and why you like working with them. Having everyone get to know each other can make the process smoother and easier when you have to take over making financial decisions about their assets.

Once it’s put together, make sure to review the binder with a financial team as soon as possible. Maybe they can provide your parents with some updated information or guidance to make sure that everything looks like it’s on track. Making decisions in the midst of grief is much harder when the information is new or unknown.

The conversations you have with your family now set the tone for how comfortable they’ll feel turning over the management of their money and assets to you when they no longer can. Introducing them to your financial team and putting together a True Wealth Financial Binder that you can review together makes it more likely that they’ll continue to involve you in financial decisions later on when they’re less able to make those decisions alone.

The information provided here is not investment, tax or financial advice. You should consult with a licensed professional for advice concerning your specific situation.

The Zandbergen Group is a DBA of Axxcess Wealth Management, LLC a Registered Investment Advisor with the SEC.


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Why The Plastics Circular Economy Is The Next Greenfield For Climate Investors

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The conclusion from COP27 is inescapable: it is “all hands-on deck” to fight climate change. Despite our best efforts, the United Nations says we are still careening towards disaster. The financial sector needs to step up.

Until now, investors have, understandably, focused on directing capital towards climate strategies focused largely on renewables. But a singular focus on energy transition alone won’t solve our climate crisis.

According to the Ellen Macarthur Foundation, moving to renewable energy can only address 55% of global greenhouse gas (GHG) emissions. It is necessary, but insufficient. The circular economy offers the potential to tackle the remaining 45%. Adopting a circular economy framework in five key areas – steel, plastic, aluminum, cement, and food could achieve a reduction totaling 9.3 billion tonnes of greenhouse gasses in 2050.

Yet the need to develop a circular economy in these critical areas is still not getting the attention it deserves. With respect to plastics, COP27 only addressed this topic through the lens of multilateral cooperation and the need to reduce plastic pollution. But as I have written previously (and often!), we need to be attacking the problem on multiple fronts if we have any hope of attaining the UN Sustainable Development Goals by 2030.

Consensus is building to prioritize the development of a circular economy for plastic waste

With mounting pressure to limit global warming to 1.5C as urged in the 2021 Sixth Assessment Report from the UN Intergovernmental Panel on Climate Change, improving waste management systems appears as the new frontier to drastically curb emissions.

In a November 2022 report by Delterra, “The Promising Climate Solution That No One Is Talking About: Waste and its Role in Climate Change, plastic use and waste is expected to triple by 2060, contributing to climate change as well as other environmental issues.” Delterra further found that emissions from plastic waste are projected to reach 2.6 billion tons CO2 in the coming decades, equivalent to the annual energy use of 325 million homes. Based on current disposal habits, the full life cycle of plastic could contribute up to 15% of global GHG emissions by 2050.

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Fortunately, we now also know that the circular economy represents a still largely untapped opportunity to solve this important contributor to climate change. Thanks to a new tool called PLACES – Plastic Lifecycle Assessment Calculator for the Environment and Society, developed by The Circulate Initiative and inspired by the US EPA’s WARM tool, we can also, for the first time, quantify the positive climate impacts of plastic mitigation solutions in high growth markets. PLACES is designed specifically for use in Asia and offers the ability to assess the climate impact of current waste management practices in Asia, from open burning to recycling.

The positive climate impacts of this new tool could be enormous. It is estimated that transitioning to a circular economy can reduce GHG emissions globally by 10 billion tons a year by 2050. Using the underlying analysis behind PLACES, my firm found that almost 150 million tons of GHG would be avoided if 100 percent of plastic leakage in India and Indonesia was prevented by 2030. This is equivalent to shutting down 40 coal-fired power plants.

The Case for Accelerating Investment at the Nexus of Plastic Waste and Climate Change

Developing the circular economy for plastic waste calls for massive investment in solutions to address the problem. The good news is that investors are starting to take notice of the causal effects of plastic waste on climate change.

I recently spent a couple of days at EnVest, a convening of environmental-focused investors, and was heartened to see that climate investors are currently taking a more intersectional lens to climate investing. This group of the most sophisticated investors in the space is thinking beyond renewables (for reasons I just stated) and becoming more aware of the opportunities related to other areas, including advancing the circular economy for plastics.

But how do we get more investors into this space? A common challenge for climate investors is that waste management and recycling are complex sectors that remain pretty far outside their wheelhouse. My own sense from conversations with these types of investors is that they need specialists and experts to help them get comfortable with how to proceed. So, we need more funds and investment firms with this knowledge to help close these gaps of uncertainty for climate investors so we can crowd in more capital to existing and new solutions.

Overall, this should be encouraging news for those working to solve the plastic waste crisis. I believe we are at a new inflection point when it comes to climate investing, one where we can finally turn our attention towards investing in solutions that target plastic waste as a significant driver of climate pollution.

The bottom line is that to solve climate change, we need to make plastic waste a bigger part of the climate conversation among impact investors. And this means that climate finance and circular plastic investing are going to need to come together to address the climate crisis in a comprehensive way. Only by looking beyond renewables and closing the gaps and improving the production of materials like plastics, aluminum and so on can we develop the kind of circular economy we need to solve both the climate and plastic pollution problems.

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The Great Resignation: How To Engage Talent From The Next Generation

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JC Abusaid is the CEO and President of Halbert Hargrove, a wealth advisory firm headquartered in Long Beach, California.

The “great resignation” was a reckoning for companies: If you don’t find ways to encourage your employees’ engagement, they won’t stick around. Like any hit to their companies’ futures, this exodus is prompting leaders to come up with better answers.

Gen Zs and Millennials have adjusted their expectations, partly in response to the pandemic’s breakdown of working norms. So, what can you do to attract talent from younger generations and avoid high turnover?

While my firm thankfully didn’t experience a “great resignation,” many years of investing in our company culture helped ensure that our staff knows that we value them. Here are some thoughts on how businesses can source talent and protect against turnover.

Working From Home: Rewards And Reasons

For many companies, working from home is here to stay. With this new paradigm, you must support your employees’ preferences to work remotely while offering positive encouragement when they do come in. Of course, if people abuse your trust or slack off, then requiring them to come back to the office is the obvious consequence. Strategies to help make WFH work:

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• Trust, but verify. Use CRM data and natural measurables such as meetings scheduled or tasks completed. Your customers may start complaining if the services they’ve come to expect head south.

• Reinforce the office-centric responses you want. Offer to take an employee out to lunch or happy hour when they come in, or provide team breakfasts or lunch on specific days. Get creative in providing culture-building experiences, and give employees a reason to come into the office.

Make sure your employees’ WFH space is appropriate. If it’s not, give them the tools they need. Have managers check in with their team to ensure they are set up to successfully work from home, such as having screens, stable Wi-Fi, a keyboard and mouse.

• Lead by example. Your C-suite should be coming in with aligned expectations and connecting with employees in the office. Engaging with the other employees who are in the office that day promotes camaraderie and emphasizes to workers who come in that they are seen, which might encourage them to come in more often.

• Be honest about the benefits of working from the office. Show employees that it’s beneficial to come into the office and spend time together there. Whenever I’m in the office, I’ll spontaneously invite an employee who’s also in to lunch. Ultimately, your employees have to see the value of being there for themselves.

Double Down On Communicating And Connecting With Your People

Maintaining a remote workplace demands a lot of energy and intensity to support engagement. If you used to meet one-on-one with an employee once a month, you might try doubling that to every two weeks.

It’s important to ensure that your people feel like they’re being heard—and for management to be able to respond to issues quickly to avoid blowups or disengagement. If you can find out where your people might be struggling, you can work with them to find solutions. If your staff is struggling personally, you might be able to find helpful solutions such as increased child care reimbursement or allowing them to bring their dog into the office.

Provide Growth Opportunities Beyond Skills

We’ve recognized the importance of listening to our team members to spur their own growth. If you can help them figure out what feeds them in their work, even if it isn’t an exact match with their job description, chances are their engagement will deepen.

It’s about professional and personal development. Investing in your staff by offering them reimbursement or time off to further their education and acquire skills doesn’t mean they’ll leave for greener pastures. If you’re willing to support your people by evolving their roles and contributions to your firm, they’re more likely to stay and continue to grow with you.

Keys To Hiring New Talent

From the start, look for signs that a candidate will fit in well with your firm’s culture. Include multiple staff members in the interview and hiring process and take their feedback seriously. Ask specific, engaging questions about their values to ensure they align with your company’s.

Previous work experience with many transitions can be a red flag, but that shouldn’t automatically be a disqualifier. It’s useful to gain an understanding of a candidate’s work experience and goals beyond what is written on their resume. If they’re fresh out of college with a limited work history, look at extracurriculars. Team sports and group activities reflect an ability to contribute in a team environment.

We think mentoring is a big, big deal. Every new hire at our firm has a mentor. These relationships can help your new people troubleshoot challenges, build skills and knowledge, and bond with your firm. Importantly, you should monitor those mentorships and make changes when called for.

We also go all-in on celebrating our new hires. Think of it as a campaign of commitment. We host a lunch to help them meet the entire team, decorate their desk and provide an in-depth training program. I personally take them out to lunch so they know their executives are involved and care about them. In truth, the celebrations should never end: Showing your appreciation of your employees throughout their tenure will help prolong it.

Engagement Works Both Ways

The next generation of workers has different demands. The old business models are gathering dust. If your policies and benefits aren’t flexible, you should expect high turnover.

When you invest in listening to what employees are looking for and demonstrate your commitment to their career, they will be more likely to choose to stick around for the long term. And if you do experience an exodus of employees leaving, take that as an opportunity for your company to learn, adjust and grow.


Forbes Finance Council is an invitation-only organization for executives in successful accounting, financial planning and wealth management firms. Do I qualify?


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