NY Tax Minutes: August 2018

This originally appeared in Law360 and is reprinted with permission.

Well, thankfully, Law360 didn’t cancel our column after month one, so we’re back with the second installment of “NY Tax Minutes.” If we can make it here, we’ll make it anywhere!

Once again, we’re delivering all the month’s New York State tax news in a way that’s made for New Yorkers. Fast. This month, we cover the governor’s brash response to the IRS’s proposed end to one of New York’s SALT deduction cap workarounds and highlight the Tax Appeals Tribunal’s recent decision explaining the procedures for claiming sales and use tax refunds after a failure to properly protest an original assessment. We also cover two recent New York State Notices addressing the state’s treatment of IRC § 965 repatriation amounts, along with a recent Advisory Opinion on the proper (or improper) use of sales tax exemption certificates.

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NYC Joins the Party: Guidance on Deferred Fees for Hedge Fund Managers

Earlier this summer, the New York City Department of Finance issued a memorandum explaining the recognition and allocation of deferred income from nonqualified deferred compensation plans (“NQPs”), specifically geared towards hedge fund managers. (NYC Department of Finance, Finance Memorandum 18-6, “Recognition and Allocation of Deferred Income from a Non-Qualified Deferred Compensation Plan,” June 29, 2018 (“Memorandum 18-6”). Sorry about the delay in reporting. Tax lawyers need vacations too.

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NY Tax Minutes: July 2018

This originally appeared in Law360 and is reprinted with permission.

Life moves fast in New York. So do taxes. New York state (and City) tax a lot of people, places and things. The state and city’s audit divisions and administrative appeal tribunals are both among the most active in the country. So how, you’re asking yourself, do I possibly keep up with all the headlines, rulings, opinions and law changes happening across the Empire State? Well, you’ve come to the right place.

Once a month, your authors, two practicing tax attorneys (nerds) with ties all over the state (Tim was born and raised in Buffalo; Craig grew up on the shores of the St. Lawrence River, before moving to New York City) will give you a full update on everything New York tax. But we’ll also deliver the news in a way that’s made for life in New York: fast.

So, without further fanfare, we give you the first installment of "New York Tax Minutes." This month, we cover New York state’s deafening silence on the Wayfair ruling and the state’s pending lawsuit against the federal government over the recently enacted state and local tax deduction cap. We also highlight two recent New York state and city publications addressing some complicated apportionment issues surrounding hedge fund manager compensation.

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New York State Division of Tax Appeals Issues Annual Report

On June 27, 2018, the New York State Division of Tax Appeals and the Tax Appeals Tribunal (collectively “DTA”) sent its Annual Report for the Fiscal Year 2017--2018 to the Governor and to the heads of the Senate and Assembly. Each year, these reports contain some new and noteworthy figures. This year’s highlights include:

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Breaking News—4 States Sue the Feds Over the "SALT" Deduction Cap

Well, it happened. Back in January, New York’s Governor Andrew Cuomo announced that the State was considering, among other things, a lawsuit against the federal government for taking away the SALT deduction as part of the 2017 tax overhaul. We talked about that issue here, and I've also talked more generally about the pain and suffering (and residency changes) caused by the loss of the SALT deduction. But yesterday, New York followed through in court, and it had some helpers.

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Quill Overturned!

Wow.

This morning the U.S. Supreme Court sent a shockwave through the Internet—and the SALT community—by issuing its long-awaited decision in the South Dakota v. Wayfair case and resoundingly overturning the Quill physical-presence nexus standard that had been the law of the land for sales tax purposes for the past several decades.

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Prospective Change on the Sobotka Issue: An Actual Amendment, NOT a Clarification

Here at Noonan’s Notes Blog, we previously covered the substance of the Governor’s Proposed FY 2019 Budget here and the Final Budget here. On May 25, 2018, the New York State Department of Taxation and Finance (the “Department”) issued a Technical Memorandum—TSB-M-18(4)I—providing its summary of the personal income tax changes enacted in the final 2018-2019 budget. The TSB-M is available here.

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Changing State Tax Residency: The Most Powerful (and Common) Response to the TCJA?

2018 has been an amazing year for tax practitioners. Since the passage of the Tax Cuts and Jobs Act, practitioners have been scrambling to understand the implications of the federal tax overhaul and to begin work on implementing new strategies for clients. And though the legislation obviously occurred at the federal level, many SALT practitioners have been dealing with the dramatic fallout at the state level as well, since aspects of the federal tax reform have had complicating and unexpected ramifications for state tax purposes.

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Arizona High Court Narrows the Meaning of "Day" for Tax Purposes

As state tax lawyers, we are often asked for advice on navigating different—and often competing—state tax schemes. The law in this area is subject to a handful of constitutional limitations. For instance, the Commerce Clause requires (among other things) that state taxes be fairly apportioned. So in the case of nonresidents and other out-of-state or multistate taxpayers, many state tax schemes determine the taxability of a transaction or person based on the numbers of days spent in the taxing state. Consequently, our advice to nonresident taxpayers often turns on the number of “days” involved. This concept of counting “days” is actually pretty important in our world! But one thing that can be interesting in these cases is seeing how different states treat seemingly similar situations or transactions.

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Amazon to Release Third-Party Seller Data to New York State Tax Department

On May 15, 2018, Amazon Services, which assists third parties selling their products through the online Amazon Marketplace, sent an email notifying third-party sellers that “Amazon has received a valid and binding legal demand from the New York State Department of Revenue (DOR)” (we assume the request came from the New York State Department of Taxation and Finance—the state agency responsible for administering tax laws in New York State). According to Amazon’s email, Amazon plans to release the following information to New York regarding its third-party sellers by June 1, 2018:

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