Smaller State Revenue Collections Continue: How Will It Impact 2017 Legislative Session?

Each December the state budget makers receive a revenue forecast prepared by group of very knowledgeable and conscientious fiscal analysts, economists and academics. The group considers economic predictions, uses elaborate models and applies involved equations to generate what has proven to be remarkably accurate predictions of how much the state will collect in taxes over the next two years. Every other year, including this year, their numbers serve as the basis for building the state’s biennium budget. While lawmakers will debate how the projected revenues should be spent, Indiana is fortunate that lawmakers accept the consensus of these experts and do not debate how much money there is to spend – as is the case in many other states.

Forecasters project that Indiana will take in $31.5 billion in FY2018 and FY2019. This is around a billion dollars more than what was projected for the last biennium. However, as good as the predictions have been historically, FY2017 estimates turned out to be off the mark by $378 million. Low gas prices were a major contributor to the inaccuracy. Unexpectedly cheap gas meant less sales tax on those less expensive fill-ups.

When coupled with generally weaker sales tax collections, the FY2017 (ending in July) collections are now expected to be about 2.5% less than earlier projections. That money will have to be made up in the first year of the biennium, from the projected 2.9% year-over-year (FY2018 over FY2017) growth. Fortunately, the forecasters see a little better growth, 3.9%, in the second year of the biennium (FY2019). The bottom line is that the money available to cover growing expenses and new funding desires will be very modest, somewhere around $1 billion – that’s only about 3% more money for the entire two-year period. And essentially it all comes in the second year, so look for budget makers in the 2017 legislative session to be very frugal in FY2018 and then build in some increases in FY2019.

Economic uncertainty, sluggish sales tax collections, further diminishing gaming revenues and other factors will all put additional pressure on the budget process. As these things play out, the forecasters could shift their numbers a little more before they update their two-year projections in mid-April, just a couple of weeks before the budget has to be passed by the General Assembly.

On the Passing of Longtime Indiana State Senator Larry Borst

Indiana Chamber of Commerce President and CEO Kevin Brinegar comments on the death of longtime Indiana state senator Larry Borst. Brinegar worked for nine years as fiscal analyst for the Senate Finance Committee chaired by Borst:

“Larry Borst was a truly dedicated public servant. He was instrumental in critical pieces of legislation at the local level (UniGov in Marion County in the 1960s and Mayor Bill Hudnut’s transformative efforts in the decades to follow) as well as statewide (major tax reforms in 1973 and 2002, and Gov. Bob Orr’s A+ education plan in 1987 to name just a few). His efforts helped transform Indianapolis into the dynamic city it has become and Indiana into a great state for doing business and creating jobs.

“Senator Borst studied legislation intently and knew the details and intricacies of every bill that came before his committee – often more so than the authors and proponents. I learned so much from him in regard to state government and the importance of being prepared. It was a privilege and an honor to work for and with him.”

Borst, in a BizVoice® magazine interview upon being named the Indiana Chamber’s 2002 Government Leader of the Year, said:

“The more complex it is, the more interested I am. This (the 2002 tax restructuring that was ultimately passed in special session) was a complicated thing, but that’s what I love. In the end, there were going to be no miracles for today or tomorrow. We had to look long term and we did.”

Tax Man: Ice Miller’s Mark Richards a 2016 Volunteer of the Year

It’s immediately evident that Mark Richards is passionate about taxes.

As a lawyer for Ice Miller, LLP, specializing in tax law for the past 30 years, he is quick to explain how taxes are essential to the Indiana economy.

Richards points to changes – from a cash to credit economy, and from brick and mortar retail to online over the last few decades – as evidence of how interesting taxes can be.

“I’m using that as an example to show how our entire economic system evolves and the tax laws have to evolve to keep pace.

Some would argue (the laws) haven’t done that very well, but the result is there’s always a new frontier, a new area that’s undeveloped, unexplored, new issues that come up. This is fundamentally important,” he stresses.

Richards has been a member of the Indiana Chamber’s tax policy committee about as long as he’s been a lawyer. He views his role as a source of support and advice to the Chamber. He has been integral to several major tax policy initiatives over the years, including the repeal of the inventory and gross receipts taxes in 2002, and, more recently, the elimination of the throwback rule…

Read the full story in BizVoice.

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Happy Veterans Day! Did You Know Tax Credits are Available for Hiring Veterans?

37738634Veterans, National Guard Members and Reservists remain key assets in helping meet workforce needs.

A free publication for employers, prepared for the Center for America, provides clear and concise understanding along with step-by-step guidance on four new federal tax credit programs: Returning Heroes; Wounded Warrior; Activated Military Reservist Credit for Small Businesses; and the Federal Empowerment Zone Employment Credit.

The guide includes links to the required Internal Revenue Service and Department of Labor forms employers need to submit. It features key eligibility and filing details, with guidance on eligibility and the specific steps to take to claim the credits.

American Jobs for America’s Heroes is a nonprofit campaign sponsored by Phillips 66 and foundations to encourage employers to post full-time jobs for veterans, National Guard members and Reservists. Access the guide and additional information.

Chamber to Study Committee: ‘Why Jeopardize Our Tax-Friendly Image?’

The much anticipated study of combined reporting, performed over the summer by the Legislative Services Agency (LSA) Office of Fiscal Management Analysis, was recently outlined to the legislative Interim Committee on Fiscal Policy.

As a refresher: Combined reporting would impact companies here with operations outside of the state. It tasks these businesses with adding together all profits for one report. Indiana’s current system of separate accounting allows for each subsidiary to report independently based on its location.

The study was required by SEA 323, which passed last session. That legislation also directed a study of the related issue of transfer pricing. Both LSA studies were presented to the interim committee and have now been made available to the public.

The combined reporting study, however, was by far the more comprehensive and was the primary subject of discussion at the interim committee meeting. The report includes examples that demonstrate how a switch to mandatory unitary combined reporting would have varying impacts on taxpayers.

Depending on their particular circumstances, some taxpayers would see their tax liability increase while others would see it decrease. The end result being that the overall effect on the tax revenue stream is unpredictable.

Using data from numerous states and applying econometric techniques, the LSA economists estimated that Indiana could see an initial spike in corporate tax revenue but that it would “only be short term and will decline to zero in the long run.” The study also recognized that while the change could be beneficial in addressing some current issues, such as transfer pricing disputes, it would raise a multitude of new administrative burdens and complexities; most notably those associated with the core difficulty, “determination of the unitary group” – exactly which affiliated entities are ultimately to be deemed part of those that must be combined. In other words, going to combined reporting only trades one set of problems for a different challenge of substantial magnitude.

Studying combined reporting is itself a complicated and difficult task. The LSA did a nice job of putting the issues in historical and practical context, identifying the issues and analyzing the potential impacts. What it could not do, because it isn’t really its role, is fully evaluate how a change could disrupt the progress that has been made over the past 15 years in improving our state’s business climate. Governor Robert Orr concluded in 1984 that combined reporting would be “extremely detrimental to Indiana’s economic growth.” In his open letter to all corporate taxpayers, he offered his assurance that Indiana “does not, and will not, require combined reporting.” That position proved significant in attracting the large manufacturing facilities built by multi-national companies that presently employ thousands of Hoosiers across the state.

Why would you want to reverse this course, abandon the certainty that comes with 50 years of tax law and jeopardize our image as the most business-friendly state in the Midwest and among the top in the nation? This was the core of the Indiana Chamber’s testimony to the interim committee. As for those who view a possible change to combined reporting as a means for dealing with what they label a “compliance issue”, the Chamber committed to work with them. We will need to find less drastic ways to address their concerns and identify ways to respond to the situations they believe represent noncompliance.

It should be noted that concerns with transfer pricing issues seem to have served as the impetus for much of the larger discussion of combined reporting. Consequently, focusing on those issues would provide the potential for reaching resolutions, without a major structural conversion to mandatory unitary combined reporting. In fact, Appendix A to the Transfer Pricing study points to several possibilities that deserve further exploration.

View the combined reporting study and transfer pricing study.

Trump Tax Plan 2.0

19145168Republican presidential candidate Donald Trump recently announced revisions to his tax plan. And it has already been broken down and analyzed by the Tax Foundation. Individuals would be subject to just three possible rates: 12% for up to $37,500 in income; 15% for up to $112,500; and, 33% for over $112,500 (all double for married couples.) The top capital gains rate would be 20%. It would also increase the standard deduction to $15,000 (currently at $6,300.) Carried interest would be taxed as ordinary income. And there are other changes including a new childcare cost deduction.

As for business taxes, the plan reduces the corporate rate from 35% to 15%. It has a lesser rate of 10% for repatriated foreign profits. But on the negative side for manufacturers, it takes away the Section 199 domestic production activities deduction. The research credit is left intact. Unfortunately, it is not clear that the reduced corporate 15% rate will be applicable to business pass-through income (stay tuned on that.)

The estate and gift tax would be eliminated. However, the inheritors would eventually have to pay on the full gain realized when they sell the asset, without the benefit of a stepped-up basis.

What about the impact on revenues and our federal debt? Well, the new plan is better in that regard than the original. The static evaluation is that it will reduce revenues (increase the debt) somewhere between $4.4 trillion and $5.9 trillion (depending on the unspecified details) over 10 years; that is roughly half of the estimate of the plan he first outlined. The dynamic analysis, factoring in economic growth improvement associated with tax cuts, lessen the overall impact, but those numbers are inherently more speculative.

See the complete analysis and full breakdown from the Tax Foundation.

Training: Turn Up the Heat in August

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Summer will be in full swing with a multitude of training opportunities to enhance employees’ expertise and protect your bottom line this August.

First up is the 2016 Indiana Tax Conference, one of the state’s largest, on August 11. Learn the latest in tax case law and legislation as highly-experienced speakers identify ways to help you stay in compliance and reduce tax liability.

Francina Dlouhy, partner at Faegre Baker Daniels, will share her perspective on a crucial issue during her keynote luncheon presentation – It Was a Bad Idea Then and It Still Is Now! What Combined Filing Would Mean for Indiana. Among other themes are multistate tax hot topics for 2016, Affordable Care Act reporting compliance and an Indiana Department of Revenue update.

BKD, LLP is the presenting sponsor. Gold sponsors are MCM CPAs & Advisors and McGuire Sponsel. The silver sponsor is DMA – DuCharme, McMillen & Associates, Inc.

Fuel business savings the following week by attending the 14th Annual Indiana Conference on Energy Management on August 17-18. Learn how to cut costs and maximize resources as energy experts from throughout the state share practical – and effective – compliance strategies.

Don’t miss engaging keynote presentations:

  • Congresswoman Susan Brooks (invited) – opening general session: August 17
  • Canadian Consul General Doug George – Energy Security and Supplies: the Canada-U.S. Relationship – general session: August 18
  • Kyle Rogers, The American Gas Association, and The Edison Electric Institute representative (invited) – Outlook on Natural Gas and Electric – closing luncheon: August 18

Additional highlights include panel discussions, customized training (choose from a variety of options) and an expo showcasing the products and services offered by businesses in your field. Explore topics such as distributed generation; reducing utility bills; using the government and tax code for energy efficiency; and energy bankruptcies.

The 14th Annual Conference on Energy Management will take place at the Crowne Plaza Indianapolis-Downtown Union Station. Register online or call (800) 824-6885.

Gold sponsors: EDF Energy Services; Ice Miller LLP; MacAllister Power Systems; and Vectren. Silver sponsors: Cummins, Geronimo Energy, Indiana Electric Cooperatives, NIPSCO and Telamon Corporation.

Rounding out August offerings are:

Sponsorships are available by contacting Jim Wagner at (317) 264-6876.

Tax Court Under Scrutiny

10044552In April 2015, the Indiana Supreme Court ordered the creation of the Ad Hoc Tax Court Advisory Task Force to review the Indiana Tax Court’s resources, caseload, performance and operations. In May of 2015, the General Assembly passed legislation calling for the Indiana Judicial Center to conduct a like review and submit a report to the Legislative Council by December 1, 2016. The Supreme Court subsequently amended its order to have the task force submit its report to the Judicial Center and the Legislative Council by May 1, 2016.

In April 2016, the task force issued its findings and recommendations along with a report compiled by the National Center for State Courts (NCSC), which was contracted to assist the task force. These materials are now getting some attention and are definitely worthy of examination. The nine-member task force was chaired by Court of Appeals Judge James S. Kirsch. The members include a variety of experienced tax practitioners as well as the general counsel for the Department of Revenue and chief deputy for the Office of Attorney General. Tax Court Judge Martha B. Wentworth also participated as an “ex officio” liaison and attended meetings by invitation from the chair.

The NCSC researched the Court’s caseload, staffing and timeliness. It also interviewed stakeholders and conducted a survey seeking opinions on these subjects and on the perceived timeliness, fairness and demeanor of the Court. And it looked into case management, internal procedures and administrative practices. The statistical results, observations and recommendations are all set out in the report. The survey results evidence a contrast in opinions between the government responses and taxpayer responses regarding the quality of service provided by the Tax Court.

In short, it seems that the government representatives are significantly less satisfied with the Court. Not unrelated to their disgruntlement, it was noted in the preface to the findings that the Department of Revenue and attorney general members of the task force sought recommendations to review the very structure of the Court, recommending review of the de novo hearing process and the lack of automatic appeal rights. However, the majority of the group and the chair found these matters “outside the purview of the task force’s directive.”

Several things were apparently deliberated and no specific findings or recommendations were made. Ultimately, the task force’s primary finding was that after 30 years, the existence of the Tax Court still serves its initial purposes of providing tax expertise, tax law consistency and renders fair and thoughtful opinions.

The findings do focus on the need for continued progress in timely addressing pending cases and the utilization of resources and staff. The report recommends an ongoing review and suggests the Tax Court explore several reforms to its case management practices, including ruling on some matters without oral arguments, limiting discovery, requiring the Department of Revenue to certify a complete audit file (to avoid it having to be reconstructed) and referring some cases to mediation.

The findings and recommendations, NCSC report and other materials are available online.

Clinton vs. Trump? A Taxing Decision in November

Now that the election process is to the point where the presidential nominees of the two major parties appear clear, it’s a good time to start considering their various tax plans. Although things can change, details will have to be determined and Congress will have its say, below are some of the current proposals from the two presumptive candidates.

Individual Income Tax
Donald Trump proposes just four brackets; Hillary Clinton proposes eight brackets.

trump clinton tax

Deductions
Clinton caps itemized deductions at 28% of the deduction. Trump phases out all deductions except for the charitable deduction and the mortgage interest deduction.

The Alternative Minimum Tax (AMT)
Clinton creates a new minimum 30% rate on individuals earning over $1 million, while Trump eliminates the AMT.

Corporate Income Tax
Trump lowers the top corporate rate to 15%; Clinton has no specific proposal at this time.

Estate Tax
Clinton increases the top estate tax rate to 45% and lowers the estate tax exclusion to $3.5 million. Trump eliminates the estate tax.

Effect of Plans on the Deficit
And as a final note, you may also want to consider how these proposals will likely impact our federal deficit. Trump’s plan is projected to increase the deficit by $9.5 trillion over the next 10 years; Clinton’s is estimated to reduce the deficit by $1.2 trillion over that same period of time.

Online Sales Tax Collection Inching Closer?

19145168It’s been nearly 25 years since the U.S. Supreme Court ruled in the Quill case regarding online sales – that states could not require a company that has no physical presence in their state to collect the state’s sales tax when they sell their goods to a resident of that state through the mail or via the Internet.

The Court held that requiring the collection of sales tax, without congressional authorization, constitutes interference with interstate commerce in violation of the U.S. Constitution. So Congress needs to pass legislation allowing the states to require online sellers to collect the tax. But that has still not happened.

The Marketplace Fairness Act (MFA) legislation would provide the needed authority, but hasn’t gotten enough support.

The opposition primarily comes from two groups: (1) some of the Internet-based companies which would have to collect the tax; and (2) people who view the legislation as a new tax.

Internet companies object to the administrative burden of collecting and remitting the tax, and they obviously want to maintain their current price advantage over the local brick-and-mortar retailers and other Internet companies that have a physical presence in many states, who must already collect and remit sales tax.

Those who consider it a new tax are, at least technically-speaking, simply wrong. When an in-state resident buys something online and doesn’t pay because the company isn’t obligated to collect the tax, those residents are legally responsible to pay the equivalent of the sales tax.

In these cases it is called a “use” tax (because they use the purchased product in their state) and everybody is supposed to report it on their state tax return. Unfortunately, the vast majority of taxpayers ignore this obligation. The simplest answer is to have the Internet seller collect the tax just as the local retail store does.

Online purchases now make up close to 10% of all retail sales and that percentage is steadily climbing.

This is a growing problem across the country, but especially for states like Indiana that are heavily dependent on sales tax – which accounts for 46% of Indiana’s total tax revenues. States are losing an estimated $11 billion in uncollected sales tax each year. Indiana’s losses are put at $200 million annually, and these numbers are growing by nearly 10% each year.

No question these numbers are driving up pressure for Congress to take action. The MFA passed the Senate in 2013, but it got bogged down in the House Judiciary Committee.

Many who are dedicated to the cause have worked to iron out a number of administrative wrinkles and to keep momentum going on this effort. The best speculation is that it will have to be made part of some larger legislative package in order to garner some compromises and the necessary level of support.

Of course, it is impossible to predict, but tax reforms and such tax packages could be on the table after this election year.