TIR 08-11: An Act Relative to Tax Fairness and Business Competitiveness

For tax years beginning on or after January 1, 2009, the Act institutes unitary combined reporting for multi-state corporations and also adopts business entity classification rules that broadly conform to the federal “check-the-box” rules requiring companies to be classified as the same type of legal entity for state and federal tax purposes. The Act includes corporate tax rate reductions to be implemented over a period of years for business corporations, S corporations, financial institutions, and financial institutions that are S corporations. The Act also adopts some additional tax provisions and makes technical changes, including elimination of prior statutory distinctions between “domestic” and “foreign” corporations by designating both to be “business corporations,” and restating the tax rates so that they are accurately described in the General Laws without reference to a decades-old surtax.

This TIR explains these provisions in summary fashion and generally explains what follow-up guidance the Department of Revenue intends to issue concerning these provisions. As guidance is developed, taxpayers and practitioners are urged to submit written comments to the Department with questions and suggestions on specific issues raised by corporate tax reform.

I.  Combined Reporting for Multi-state Corporate Filers

Under the Act, Massachusetts will change from a separate company reporting state to a combined reporting state for purposes of taxing corporations that operate both within and without the state.[1]

Under the current separate company reporting structure, each corporation with nexus files a tax return that includes only the separately-determined income and apportionment factors of that corporation. In combined reporting, already in use in over 20 other states, each taxpayer member is responsible for tax based on its apportioned share of the business income of the combined group, together with that member’s own allocated (non-business) income and its apportioned share of other business income, including business income from any other combined group of which the taxpayer is a member.

Effective for tax years beginning on or after January 1, 2009, a corporation subject to chapter 63 that is engaged in a unitary business with one or more corporations subject to combination must calculate its taxable net income derived from this unitary business as its share of the apportionable income or loss of the combined group engaged in the unitary business, determined in accordance with a combined report.[2] Transactions between the member corporations are generally disregarded. An apportionment formula for each member that has nexus in Massachusetts is determined, and will vary depending on whether such member is a business corporation, a manufacturing corporation, a financial institution, a mutual fund service corporation or a utility.  Some of the major aspects of the combined reporting law are described below. As expressly contemplated in the Act, the Department intends to issue regulations and other guidance that will explain the new law in greater detail and provide specific rules for its application.

Unitary Business.  The term “unitary business” is defined 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.  The Act provides that “[t]he term unitary business is to be construed to the broadest extent permitted by the United States Constitution.”

Common Ownership.  For purposes of combined reporting, common ownership means that more than 50 percent of the voting control of each member of the group is directly or indirectly owned by a common owner or owners, either corporate or non-corporate, whether or not the owner or owners are members of the combined group.  A group of corporations under common ownership may be engaged in one or more unitary businesses.

Partnerships.  Any business conducted by a partnership will be treated as the business of the partners, whether the partnership interest is directly held or indirectly held through a series of partnerships to the extent of the partner’s distributive share of the partnership’s income, regardless of the magnitude of the partner’s ownership interest or its distributive share of partnership income.[3]  A business conducted directly or indirectly by one corporation is unitary with that portion of a business conducted by another commonly owned corporation through its direct or indirect interest in a partnership if the activities conducted by the former corporation and the partnership are unitary regardless of the magnitude of the partner’s ownership interest or its distributive or any other share of partnership income.

Combined Group.  The combined group includes business corporations (both “C” corporations and Subchapter S corporations), financial institutions, and utilities that are subject to tax under G.L. c. 63, §§ 2, 2B, 32D, 39 or 52A or that would be so subject to tax if doing business in the Commonwealth. Non-profits (paying tax on unrelated business income), security corporations, and insurance companies are generally excluded from the combined group. “Captive” insurers, however, and also commonly-owned real estate investment trusts (REITs) and regulated investment companies (RICs) are included. Business income of the combined group is calculated on the combined report as the sum of all members’ (including non-taxpayer members’) individually determined net business incomes.

• Water’s edge combination generally; election to use worldwide combination. Unless a “worldwide” combination election is made, the combined group will be limited to the “water’s edge” (generally, corporations organized in the U.S. or doing business in the U.S.). Under the water’s edge method of combination, the income and apportionment factors of most non-U.S. corporations are excluded from the combination; certain categories of foreign corporations are included as described in the statute.[4] If a “worldwide” election is made, each taxpayer member of the combined group will take into account the income and apportionment factors of all the worldwide members (whether organized in the U.S. or in foreign countries) includible in the combined group. In general, such an election is binding for and applicable to the taxable year for which it is made and all taxable years thereafter for a period of 10 years.

• Election to include all members of federal affiliated group, as modified by G.L. c. 63, § 32B(g). A taxpayer may elect to include within its combined group generally all corporations that are members of a federal affiliated group, as defined in Internal Revenue Code § 1504, filing a federal consolidated return, but with the group expanded as described in G.L. c. 63, § 32B(g) to include all commonly-owned corporations that are organized in the U.S. or that otherwise would be included in a water’s edge group in the absence of an affiliated group election. The election will include members of such affiliated group that are subject to tax or that would be subject to tax if doing business in the state under G.L. c. 63, §§ 2, 2B, 32D, 39 or 52A. Any such election must be made on an original, timely filed return by any member of the combined group. In general, such an election is binding for and applicable to the taxable year for which it is made and for the next nine taxable years, and may be renewed for additional ten-year periods.
  
  

Apportionment Formulas and Tax Rates. The Act generally retains the existing statutory tax rates and apportionment rules for different types of corporations, i.e., business corporations, manufacturers, financial institutions, mutual fund service corporations, utilities, etc. Generally, each taxable member of the combined group will determine its own share of the group’s over-all income, using its applicable apportionment formula, and will pay tax on that income at the rate applicable to that member. The statutory rules provide for certain adjustments to the apportionment rules, e.g., to allocate among taxable members any Massachusetts-source sales of non-taxable members (to reflect the so-called Finnigan approach to apportionment of unitary income), and to address situations where a combined group includes one or more financial institutions and one or more non-financial institutions.

Pre-2009 Combined Return. The existing so-called “combined return” under the version of G.L. c. 63, § 32B prior to the Act is repealed.  (Prior section 32B, repealed for tax years beginning on or after January 1, 2009, offers affiliated taxpayers doing business in the state the option to file returns that the law refers to as “combined,” but these filings are not “unitary” combined return filings like those required under the new law).

Deduction; FAS 109. The Statement of Financial Accounting Standards (FAS) No. 109, Accounting for Income Taxes, establishes basic principles that apply when accounting for income taxes for the purpose of preparing a company’s financial statements. FAS 109 requires that the effects of income taxes resulting from transactions occurring in the current and preceding years be reported on an entity’s financial statements for current and future years. The Act allows a deduction for certain combined groups that include publicly traded companies where the enactment of combined reporting for unitary businesses results in an increase to the combined group’s net deferred tax liability, as defined in the Act.[5] If applicable, the deduction is prorated over the seven year period beginning with the combined group’s taxable year that begins in 2012. Any taxpayer intending to claim a deduction under this section must file a statement with the Commissioner (including such calculations and other information as the Commissioner may require) on or before July 1, 2009 specifying the total amount of the deduction which the taxpayer claims.

Forthcoming Guidance.The Act contemplates that the Department will issue regulations explaining the application of the new law, including without limitation rules addressing the following:

• the elimination of intercompany transactions, including but not limited to the payments of dividends, between or among combined group members, and the elimination or deferral of income, expenses, apportionment factors or other tax items associated with those transactions and including any exceptions to such eliminations or deferrals under rules analogous to those under Internal Revenue Code § 1502;
  
  
• the sharing within the combined group of credits that may be validly claimed by a taxpayer and that are attributable to the combined group’s unitary business, to the extent such sharing of credits by a particular member of the combined group is consistent with the statutory requirements for claiming such credits, taking into account the nature of such member’s business and related activities;
  
  
• the application of any carry forwards, including the sharing of any net operating loss or tax credit carry forwards that are attributable to the activities of the combined group’s unitary business, but the carry forward of losses, credits or other tax benefits that arise in tax years beginning before January 1, 2009 will be available only to the extent permitted by law as in effect prior to the Act; and
  
  
• the relationship of sections 31Ito 31K, inclusive, to newly enacted section 32B.
  
  

Among other things, adoption of combined reporting for multi-state corporations will result in changes in the amount and timing of estimated tax payments for certain corporations and other business entities, and the Department will be issuing guidance on the payment of estimated taxes by affected entities.

II.  Massachusetts Will Conform With Federal Business Entity Classification (Check-the-Box) Rules

Businesses can be legally organized in different ways, e.g., as corporations, limited liability companies (LLCs), partnerships, business trusts, etc.  The form of legal organization can affect how the business is treated for tax purposes.  In general, either the entity itself pays tax on its income (as in the case of most corporations) or the income of the entity is attributed to the owners, who pay the tax (as in the case of most partnerships).[6]  There has been a partial mismatch between the Massachusetts and federal rules in this area.  While state and federal treatment of many business entities is the same, the treatments of others such as Massachusetts business trusts ("corporate trusts") and certain partnerships have long differed.  In the mid-1990s, the differences increased when new federal “check-the-box” rules allowed many unincorporated businesses to elect whether for federal tax purposes they would be taxed as corporations, treated as partnerships, or in some cases, disregarded altogether as entities separate from a sole owner.

The Act generally eliminates the differences between Massachusetts and federal entity classification rules. For tax years beginning on or after January 1, 2009, the filing status for business entities in Massachusetts must conform to their filing status for federal tax purposes.  Under federal regulations implementing the so-called “check-the-box” rules, entities that are not required to be treated as corporations are allowed to elect their filing status.  U.S. Treas. Reg. § 301.7701-3.  An unincorporated entity with two or more members (such as partners or other owners) may elect to file as a corporation or a partnership.  An unincorporated entity that has a single member may elect to file as a corporation, or to be disregarded as an entity separate from its owner, thus being treated as a branch or division of its owner.  For Massachusetts purposes, these federal rules will apply to partnerships, LLCs, corporate trusts, and other unincorporated associations.[7]

Conformity to the federal check-the-box rules will result in many state filing changes:

Corporate Trusts.  The Act repeals the separate taxation provisions that formerly applied to corporate trusts.[8] As of 2009, there will be no separate corporate trust tax classification and no corporate trust returns.[9] Businesses previously taxed in Massachusetts as corporate trusts will be treated either as corporations (filing corporate returns), as partnerships (filing partnership information returns), or as disregarded entities (filing no returns separate from the return of a sole shareholder or member), depending on the federal treatment elected by the entity.

Subchapter S Corporations. Under the Act, the rules for the taxation of S corporations are changed.  The Massachusetts entity-level tax on large S corporations remains in effect, subject to changes in tax rates described below.  Federal S corporations organized as corporate trusts or partnerships must file Massachusetts returns as S corporations in the same manner as if they were organized as corporations.  Qualified subchapter S subsidiaries (QSUBs) will be disregarded for all Massachusetts corporate tax purposes and will not file separate returns, including any return with respect to the non-income measure.  The parent S corporation will be the sole entity responsible for filing.  The parent S corporation will include the income and take into account the activities of all QSUBs for purposes of calculating excise due under G.L. c. 63, §§ 32D and 39.

Shareholders of S corporations that were previously treated as corporate trusts in Massachusetts will be taxed on their distributive share of the S corporation’s income.  This departs from the former rules where the trust paid all the tax and its distributions were generally not taxed to the shareholders.

Financial Institution that is an S Corporation.  A new category of financial institution S corporation is created for entities that are S corporations for federal and Massachusetts income tax purposes and are defined as financial institutions at G.L. c. 63, § 1.[10]  Financial institution S corporations will be taxed under G.L. c. 63, § 2B similarly to other S corporations, but at different rates and without a non-income measure tax.

Forthcoming Guidance.  The Department will issue additional guidance to taxpayers affected by these changes.  The Department intends to provide rules addressing estimated tax payments, the tax consequences of the transition to a different entity classification, how to treat potential disparities between state and federal basis calculations, the methods by which previously untaxed earnings and profits of a former corporate trust will be taxed to the entity or to its successor or owner, and additional matters.[11]

III.  Corporate Excise Rate Reductions

The Act includes various corporate excise rate cuts to be implemented over a period of years:  reductions for business corporations, reductions for financial institutions, reductions for S corporations, and reductions for financial institutions that are S corporations. These provisions are described in greater detail below.

A.  Business Corporations (other than S Corporations); G.L. c. 63, § 39

Computation. For tax years beginning on or after January 1, 2009, subject to the rate reduction schedule set out below, the corporate excise tax imposed on a business corporation is the greater of the amounts described in G.L. c. 63, § 39(a) or (b):

(a)  An amount equal to the sum of:

(1)  $2.60 per $1,000 upon the value of (i) its tangible property as determined to be taxable under § 30(7) if a tangible property corporation; or (ii) its net worth as determined to be taxable under § 30(8) - (9) if an intangible property corporation; and

(2)  9.5 percent of its net income determined to be taxable under chapter 63.

(b)  $456

Rate Reduction.  The current net income measure of the corporate excise of 9.5 percent applicable to business corporations is reduced over three years[12] according to the following schedule:

For tax years beginning on or after January 1, 2010, but before January 1, 2011:  8.75 percent
For tax years beginning on or after January 1, 2011, but before January 1, 2012:  8.25 percent
For tax years beginning on or after January 1, 2012: 8.0 percent.

B.  Financial Institutions (other than S Corporations); G.L. c. 63, § 2

Computation.  For tax years beginning on or after January 1, 1995, but before January 1, 2010, the financial institution excise rate is 10.5 percent of net income. A minimum excise of $456 applies.

Rate Reduction. The current financial institution excise rate of 10.5 percent of net income is reduced over three years[13] according to the following schedule:

For tax years beginning on or after January 1, 2010, but before January 1, 2011:  10.0 percent
For tax years beginning on or after January 1, 2011, but before January 1, 2012:  9.5 percent
For tax years beginning on or after January 1, 2012: 9.0 percent.

C.  Subchapter S Corporations; G.L. c. 63, § 32D

Computation.  Under current law, Massachusetts imposes an entity-level tax of 4.5 percent on the net income of any S corporation with total receipts of $9 million or more, or 3 percent on such net income if total receipts are at least $6 million but less than $9 million (total receipts being determined on an aggregate basis in the case of certain unitary corporations).[14] Section 32D only modifies the net-income measure of the corporate excise. In general, S corporations remain subject to the tangible property or net worth portion of the tax and to the $456 minimum excise in the same manner as any other corporation subject to the corporate excise.  In addition, the shareholders of an S corporation are subject to the personal income tax on their pro rata share of the S corporation’s income.[15]

Rate Reduction. Effective for taxable years beginning on or after January 1, 2009,an S corporation having $9 million or more in total receipts is subject to tax on its net income at a rate equal to the regular business corporation (i.e., non-S corporation) rate on net income for the year minus the Part B personal income tax rate at G.L. c. 62, § 4(b) for the year. The net income tax rate for S corporations with at least $6 million but less than $9 million in total receipts will equal two-thirds of the tax rate applicable to larger S corporations.[16] For tax years beginning on or after January 1, 2009 but before January 1, 2010, application of the statutory formula yields the following rates on net income of an S corporation:

(1)  if total receipts for the taxable year are at least $6,000,000 but less than $9,000,000,

          2/3 x 4.2 percent = 2.8 percent; and

(2)  if total receipts for the taxable year are $9,000,000 or more,

           9.5 percent - 5.3 percent[17]= 4.2 percent

D.  Financial Institution that is a Subchapter S Corporation; G.L. c. 63, § 2B

Computation.  Effective for taxable years beginning on or after January 1, 2009, a financial institution that is an S corporation will be taxed similarly to other S corporations, but at financial institution S corporation rates under new G.L. c. 63, § 2B and without a non-income measure tax.[18] A minimum excise of $456 applies.

Applicable Rates. Effective for taxable years beginning on or after January 1, 2009, a financial institution that is an S corporation having $9 million or more in total receipts is subject to tax on its net income at a rate equal to the regular financial institution (non-S corporation) tax rate for the year minus the Part B personal income tax rate at G.L. c. 62, § 4(b) for the year. The net income tax rate for a financial institution that is an S corporation with at least $6 million but less than $9 million in total receipts will equal two-thirds of the tax rate applicable to larger financial institution S corporations.[19] For tax years beginning on or after January 1, 2009 but before January 1, 2010, application of the statutory formula yields the following rates on net income of a financial institution that is an S corporation:

(1)  if total receipts for the taxable year are at least $6,000,000 but less than $9,000,000,

          2/3 x 5.2 percent = 3.5 percent; and

(2)  if total receipts for the taxable year are $9,000,000 or more,

          10.5 percent - 5.3 percent[20] = 5.2 percent

IV.  Streamlining and Clarification of Chapter 63 and Certain Related Provisions – Revised Terminology and Restatement of Rates (Eliminating Separate Statutory Surtax)

The Act contains numerous provisions that eliminate the distinction between "foreign corporations" and "domestic corporations."  Effective for tax years beginning on or after January 1, 2009, both foreign and domestic corporations will be treated as “business corporations” and taxed under G.L. c. 63, § 39.[21] See, in particular, G.L. c. 63, § 30, as amended by the Act.

Prior to the Act, the tax rate for certain taxpayers subject to chapter 63 (including certain insurance companies) and chapter 63A (certain entities engaged in the sale of alcoholic beverages) was calculated by applying an uncodified 14 percent surtax to the codified rates. Under the Act, effective for taxable years beginning on or after January 1, 2009, the rates and the 14 percent surtax have been combined into single codified rates; the actual combined rates are codified in chapters 63 and 63A and the 14 percent surtax has been repealed.[22]Although the tax rates in chapters 63 and 63A have been modified to compensate for repeal of the 14 percent surtax, there is no tax increase as a result of repealing the surtax and restating the rates.

Prior to the Act, there were two sections numbered 38T in chapter 63 of the General Laws. The Act makes a technical correction to renumber the provisions relating to the film credit from G.L. c. 63, § 38T to § 38X.[23] In addition, there is a technical correction whereby G.L. c. 63§ 32E, dealing with the refund of a film credit, was amended to reference § 38X.[24] The Act also makes a technical correction to renumber the provisions relating to the unrelated business taxable income for certain exempt corporations from G.L. c. 63, § 38T to § 38Y.[25]

V.  Non-income Measure and Minimum Excise Not Affected by Public Law 86-272

In general, federal Public Law 86-272[26] provides that no state has the power to impose a net income tax on the income derived within such state by any person from interstate commerce if the only business activities within such state by or on behalf of such person during such taxable year are limited to the solicitation of orders for sales of tangible personal property and where (i) orders are sent outside the state for approval or rejection, and (ii) if approved, the orders are filled by shipment or delivery from a point outside the state.

As explained above, the Massachusetts corporate excise includes both an income measure and a non-income measure, as well as a minimum corporate excise of $456. The Act provides that corporations protected from the income measure of the corporate excise by Public Law 86-272 may nevertheless be subject to the greater of the non-income measure or the minimum tax of $456.[27]

VI.  Corporate Tax Basis Adjustment

The Act clarifies Massachusetts law concerning differences in corporate tax basis that may arise because of differing Massachusetts and federal tax law. The Act adds new Section 31M to chapter 63 of the General Laws, which provides detailed basis adjustment rules.[28]

VII.  Sales Factor Modification

Effective for taxable years beginning on or after January 1, 2009, the Act amends the definition of “sales” for purposes of determining the sales factor of the corporate apportionment formula in G.L. c. 63, § 38.In general, the sales factor is a fraction, the numerator of which is the total sales of the corporation in Massachusetts during the taxable year, and the denominator of which is the total sales of the corporation everywhere during the taxable year.[29] Certain items are excluded from “sales” in making this determination. Under the Act, in the case of a sale or deemed sale of a business, the term “sales” will not include receipts from the sale of the business “goodwill” or similar intangible value, including, without limitation, “going concern value” and “workforce in place.”[30]

VIII.  Personal Income Tax; Earned Income Credit

A refundable earned income credit is available to certain low-income individuals who have earned income and meet federal requirements for the federal earned income credit.  The taxpayer must qualify for and claim the federal earned income credit allowed under Internal Revenue Code § 32 as amended and in effect for the taxable year.

The Act clarifies that the credit applies only with respect to that portion of earned income of non-residents that is derived from Massachusetts sources. Under the Act, where a taxpayer is a nonresident for all or part of the taxable year, the credit is limited to 15 percent of the federal credit multiplied by a fraction the numerator of which is the earned income of the nonresident from Massachusetts sources and the denominator of which is the earned income of the nonresident from all sources. [31]

/s/Navjeet K. Bal
Navjeet K. Bal
Commissioner of Revenue

NKB:MTF:adh

August 15, 2008

TIR 08-11

[1]St. 2008, c. 173, § 48, amending G.L. c. 63 by repealing existing G.L. c. 63, § 32B and inserting new § 32B. 

[2]St. 2008, c. 173, § 48, amending G.L. c. 63 to insert new § 32B.

[3]The Act makes clear that business conducted by any corporation through a partnership is treated as conducted directly by that corporation, to the extent of the corporation’s distributive share of the partnership income. Given the application of the new check-the-box rules this is true whether the partnership is a general partnership, a limited partnership, an LLC or any other entity treated as a partnership.

[4]St. 2008, c. 173, § 48, amending G.L. c. 63 to insert new § 32B(c)(3).

[5]St. 2008, c. 173, § 95.

[6]The income of Subchapter S corporations is taxable to the shareholders, and is also subject to certain entity-level income taxes under G.L. c. 63, § 32D. In general, all business corporations, whether “C” corporations or Subchapter S corporations, are subject to a non-income measure and minimum tax under G.L. c. 63, § 39.

[7]See generally St. 2008, c. 173, §§ 11 - 17, 19 - 25, 28 - 32, 37, 38, 42, 46, 49 – 53, 57, 84, 85, 96.

[8]St. 2008, c. 173, § 19, repealing G.L. c. 62, § 8.   

[9]St. 2008, c. 173, § 23, amending G.L. c. 62C, § 6.

[10]St. 2008, c. 173, § 32, amending G.L. c. 63 to insert new § 2B.

[11]St. 2008, c. 173, § 96.

[12]St. 2008, c. 173, § 84, amending G.L. c. 63, § 39.

[13]St. 2008, c. 173, §30, amending G.L. c. 63, § 2.

[14]G.L. c. 63, § 32D.

[15]G.L. c. 62, § 17A.

[16]St. 2008, c. 173, § 51, amending G.L. c. 63, § 32D.

[17]  The current Part B personal income tax rate is 5.3%. However, it is possible that this rate could decrease by 0.05 percent per year based on statutory adjustments in G.L. c. 62, § 4, depending on the inflation adjusted growth in baseline taxes for the previous year. See G.L. c. 62, § 4.  

[18]St. 2008, c. 173, § 32, amending G.L. c. 63 by adding new § 2B.

[19]Id.

[20]See footnote 17, above, regarding a potential change in the Part B personal income tax rate.

[21]See generally St. 2008, c. 173, § 37 – 41 amending G.L. c. 63, § 30; St. 2008, c. 173, §§ 47, 84 amending G.L. c. 63 by repealing § 32 and amending § 39. See also St.2008, c. 173,c. § 55 repealing G.L. c. 63, § 33.

[22]St. 2008, c. 173, §§ 92, 93 repeal the surtax at St. 1969, c. 546, §§ 18 and 21. For sections of the Act restating the tax rates previously subject to the 14 percent surtax, see St. 2008, c. 173, § 33 amending G.L. c. 63, § 22; St. 2008, c. 173, § 34 amending G.L. c. 63, § 23; St. 2008, c. 173, § 35 amending G.L. c. 63, § 29A; St. 2008, c. 173, § 36 amending G.L. c. 63, § 29E; St. 2008, c. 173, § 44 repealing G.L. c. 63, § 31B; St. 2008, c. 173, § 49 – 53 amending G.L. c. 63, § 32D; St. 2008, c. 173, § 84 amending G.L. c. 63, § 39; and St. 2008, c. 173, § 90 amending G.L. c. 63A, § 2.   

[23]St.2008, c. 173, § 82.

[24]St.2008, c. 173, § 54.

[25]St.2008, c. 173, § 83.

[26]15 U.S.C. §§ 381 - 384.

[27]St. 2008, c. 173, § 84, amending G.L. 63, § 39.

[28]St.2008, c. 173, § 46 amending G.L. c. 63 to insert new § 31M.

[29]G.L. c. 63, § 38(f).

[30]St. 2008, c. 173, § 60 amending G.L. c. 63, § 38.

[31]St. 2008, c. 173, § 18, amending G.L. c. 62, § 6(h).