Section Review

Combined reporting in Massachusetts: A primer on the controversy

On June 30, 2008, Gov. Deval Patrick signed into law House Bill 4904, “An Act Relative to Tax Fairness and Business Competitiveness.” H.R. 4904, 185th Gen. Court (Mass. 2008). One of the most important provisions of the bill is the adoption of combined reporting in the commonwealth. Historically, Massachusetts has been a separate filing state where each corporation subject to taxation in Massachusetts files a separate tax return. Proponents of this bill argue that it will help Massachusetts to maintain its competitive edge in attracting and retaining businesses. Mass. Study Comm’n on Corporate Taxation, Interim Report, at 13 (2007). Though the impact of combined reporting is difficult to determine and measure, it is clear that multi-jurisdictional taxpayers and tax planners will be significantly affected. Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting, at 14 (2008).

The first goal: “tax fairness”

The recent wave of states adopting combined reporting has been largely in response to a number of tax disputes in separate filing states where the taxpayer has taken advantage of a perceived tax loophole. Michael Mazerov, Center on Budget and Policy Priorities, Growing Number of States Considering a Key Tax Reform, at 4 (2007). When elected, Patrick articulated his goal of “closing corporate loopholes” in the Massachusetts tax code, and commissioned the Study Commission on Corporate Taxation to study the Massachusetts tax system and make recommendations. While the panel recommended adopting combined reporting, seven members of the commission, including representatives from the Legislature’s Joint Committee on Revenue, Associated Industries of Massachusetts (“AIM”), and the Massachusetts Taxpayers Foundation, offered a minority dissenting opinion. Bradley H. Jones Jr. et. al., Interim Report of a Minority of Members of the Study Comm’n on Corporate Taxation, (2007). Opponents of combined reporting across jurisdictions argue that it is not the simplest and most accurate reflection of activities of entities within a state and that a policy of separate filing entities is preferable. The minority of the study commission points to a letter written by Massachusetts Commissioner of Revenue Alan LeBovidge on April 26, 2004, to the Joint Committee on Revenue expressing concerns regarding the adoption of combined reporting in Massachusetts specifically.

Still other opponents argue that the policy of combined reporting is flawed because “the interaction created an actual or perceived disconnect in the link between the location of measurable, state-specific factors and the attribution of income to a state.” Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting, at 4 (2008).

Separate filing mechanics

States that do not mandate combined reporting collect business taxes at an entity level; these are known as separate filing states. Each entity, if it is determined to have nexus in a jurisdiction, without regard to its parents or affiliates, will submit a return based on its taxable income in that state. Those entities that conduct business in multiple jurisdictions will apportion their income based on the percentage of property, payroll and sales that they have in each jurisdiction. Rules for apportioning income vary across jurisdictions and sometimes change with the nature of the business. Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting, at 3 (2008).

Separate filing treats each entity as a single taxpayer and is concerned only with the business and income of that taxpayer. Those in favor of separate filing point out that this is a very predictable and fair way to tax the income of entities, where there is a rational connection between the entity and the jurisdictions to which they report. Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting, at 2 (2008). Those in favor of combined reporting, on the other hand, argue that this system avails itself to “income shifting” and abusive tax shelters. Michael Mazerov, Center on Budget and Policy Priorities, Growing Number of States Considering a Key Tax Reform, at 4 (2007).

Combined reporting mechanics

Unlike separate filing, combined reporting takes into account an entity’s parent and affiliated corporation. The income of the group is combined to find the taxable income of the unitary group; in effect, combined reporting begins by finding the taxable income across all states of the entire business without regard to separate legal entities. Once the nationwide taxable income is calculated, the apportionment factors are applied to the entire group, as opposed to each separate filing entity. A combined return includes all entities that make up the unitary group, regardless of whether each entity has nexus in that combined reporting state. See generally: Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting (2008); Michael Mazerov, Center on Budget and Policy Priorities, Growing Number of States Considering a Key Tax Reform (2007).

Application of the apportionment factors to the income of the group, instead of the separate entities, results in multi-jurisdictional taxpayers reporting and paying tax for entities in jurisdictions where they may not have nexus. The Massachusetts Study Commission on Corporate Taxation “believes that combined reporting would modernize the corporate tax structure in the commonwealth and would reduce opportunities for tax avoidance through transactions among affiliated corporations.” Mass. Study Comm’n on Corporate Taxation, Interim Report, at 18 (2007).

Taxpayers that do business in multiple jurisdictions often respond to various state incentives to attract businesses. As a result, a complex organizational structure may have various entities or functions spread across various jurisdictions, and those entities or functions may frequently transact business with one another. Opponents of combined reporting argue that it is unable to distinguish beneficial tax planning from abusive “loopholes.” Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting, at 7 (2008)

Defining a unitary business

One of the challenges for combined reporting states has been defining what constitutes a unitary business; that is, what entities should be included in the group whose income will be taxed as a single business. A unitary business is defined in the bill as “the activities of a group of two or more corporations under common ownership that are sufficiently interdependent, integrated or interrelated through their activities so as to provide mutual benefit and produce a significant sharing or exchange of value among them or a significant flow of value between the separate parts.” H.R. 4904, 185th Gen. Court, § 48 (Mass. 2008) Whether affiliated corporations are “sufficiently interdependent, integrated or interrelated” has historically been the subject of tax controversy in combined reporting states and will likely be an issue in Massachusetts in the future.

The revenue impact

Both supporters and opponents of combined reporting agree that measuring the exact revenue impact of combined reporting is very difficult due to the various factors that effect state tax revenues from year to year. The Commonwealth of Massachusetts estimates an increase in revenue, due only to combined reporting, of $136 million in Fiscal Year 2008 and $226 million in Fiscal Year 2009. Mass. Study Comm’n on Corporate Taxation, Summary of Proposed Tax Loophole Changes (2007), available at www.mass.gov/bb/fy2008h1/bills08/fair.shtml. The projected revenue boost to the commonwealth is the main reason for implementing combined reporting. It remains to be seen whether these predictions pan out.

Add back provisions

In 2003, the commonwealth initially addressed the problem of “income shifting” by multi-jurisdictional taxpayers by enacting the “add back” statute. Mass. Gen. Laws ch. 63, §§ 31I, 31J, 31K (2008). The statute requires entities to “add back” to Massachusetts taxable income certain items that have been deducted for purposes of computing federal taxable income. These items are usually inter-company expenses resulting from loans or licensing agreements between affiliated corporations. 830 Mass. Code Regs. § 63.31.1 (2008). Combined reporting takes into account the income of the entire unitary group but the Massachusetts add back statute may already collect a portion of the revenue expected from the adoption of combined reporting. Robert Cline, Council on State Taxation, Understanding the Revenue and Competitive Effects of Combined Reporting, at 10-11 (2008).

Consider that revenue projections for combined reporting are especially tenuous where the state already has an add back statute. Since the goal of each is to address tax savings corporations derive from inter-company transactions, the add back statute may already be collecting, in large part, the revenue projected for combined reporting.

The second goal: business competitiveness

As the title of the recently passed Massachusetts bill suggests, part of the goal in adopting combined reporting is to enhance the competitiveness of the commonwealth in attracting businesses. Determining and measuring the impact of combined reporting on the commonwealth’s ability to attract business is extremely difficult, as it is impossible to isolate any of the factors that attract businesses to Massachusetts.

Those entities that will be most affected are those that sell products or services in broad national or international markets and have a great deal of “mobile capital.” In most cases, simplicity or consistency in a state tax system is important to a corporation subject to tax in numerous jurisdictions. Frequent or significant statutory changes in the corporate tax system may not necessarily make Massachusetts a more competitive business environment.

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