TESTIMONY BEFORE THE PENNSYLVANIA BUSINESS TAX REFORM COMMISSION
CORPORATE TAX REFORM STATE TAX COSIDERATIONS RELATIVE TO CORPORATE SITE SELECTION
June 9, 2004 Laurence R. Cusack KPMG LLP Partner in Charge of Strategic Relocation and Expansion Services
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THE IMPACT OF STATE AND LOCAL TAXATION ON CORPORATE SITE SELECTION DECISIONS
Site selection encompasses: Headquarters, factories, storage/distribution, back office/shared services New facility/new business Relocation of facilities Expansion of existing facilities Consolidation of facilities
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THE IMPACT OF STATE AND LOCAL TAXATION ON CORPORATE SITE SELECTION DECISIONS
INTERNATIONAL AND NATIONAL SITE SELECTION STUDIES: Taxes rarely drive the choice of location. Executives analyze taxes to distinguish locations once the site selection process has distilled a short list of candidate sites. Exceptions: International studies involving sites that offer national tax holidays State mega incentive programs (e.g., Southern states’ auto manufacturer incentives, Michigan Renaissance Zone, Pennsylvania KOZ) REGIONAL AND LOCAL SITE SELECTION STUDIES: Taxes rise to the level of first tier criterion. PA vs. DE, MD, NJ, NY & OH Philadelphia vs. Southern New Jersey; Pittsburgh vs. Eastern Ohio
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CORPORATE TAX REFORM - OPTIONS
Option 1: Separate Company Reporting with Expense Disallowance. Pros: Broadens tax base to preclude income shifting. Allows for rate reduction without loss of revenue base. Rate reduction must be contemporaneous. Relieves need for significant retraining of tax audit, appeals and administration professionals. Cons: Significant constitutional challenges inherent in disallowance of expenses paid to non-Pennsylvania companies Broad net can capture and preclude legitimate business expenses as well as those which are purely tax motivated.
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CORPORATE TAX REFORM - OPTIONS
Option 2: Combined or Consolidated Reporting Pros: Broadens tax base to preclude income shifting. Allows for rate reduction without loss of revenue base. Rate reduction must be contemporaneous. Cons: Jurisdictions can mandate combination/consolidation of only unitary groups. Defining unity has been a profoundly litigious exercise.
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CORPORATE TAX REFORM - OPTIONS
Option 2: Combined or Consolidated Reporting Cons, continued: To the extent the members of a unitary group do not match the federal consolidated group, combination compounds the complexity of compliance. Net effect of combination can be revenue loss. Combination will create the need for significant training of tax audit, appeals and administration professionals.
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TAXES AND SITE SELECTION – WHAT COMPANIES LOOK FOR
Tax Base & Apportionment The broader the tax base the lower the rate must be. Apportionment – do not penalize capital investment or job growth by weighting property or payroll too heavily. Consider single factor apportionment – sales only. Single factor apportionment based only on sales results in imposition of tax based solely on exploitation of marketplace. Companies based out of state selling into state are on par with companies invested in state. Consider market based sourcing for service providers. Throwback and/or throwout provisions are tantamount to three factor apportionment with equal weighting.
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TAXES AND SITE SELECTION – WHAT COMPANIES LOOK FOR
Attributes Net operating losses – no annual limitation on use. Continue to match the 20-year federal carryforward period. Credits – jobs, capital spending, R&D. Refundable credits
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TAXES AND SITE SELECTION – WHAT COMPANIES LOOK FOR
Administration Clear procedures Independent administrative review of disputes Tax court, not a court that hears tax disputes among other things
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TAXES AND SITE SELECTION – WHAT COMPANIES LOOK FOR
Do not underestimate the importance of personal income taxes. Deferred compensation taxed at time of deferral - Ignatz v. Commonwealth, No. 136 F.R. 2003 (Pa. Cmwlth. May 12, 2004) and Peabody v. Commonwealth, No. F.R. 2003 (Pa. Cmwlth. May 12, 2004)
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MYTH – CORPORATE INCOME TAX RATE IS AN ACCURATE BAROMETER OF STATE’S OVERALL TAX CLIMATE
State Statutory Tax Rates – Don’t Be Deceived
Iowa 12.000% North Dakota 10.500% Pennsylvania 9.990% Minnesota 9.800% Vermont 9.750% Massachusetts 9.500% District of Columbia 9.500% Alaska 9.400% West Virginia 9.000% Rhode Island 9.000% New Jersey 9.000% Maine 8.930% New York City 8.850% California 8.840% Delaware 8.700% Ohio 8.500%
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New Hampshire Indiana Kentucky Louisiana Wisconsin Nebraska New Mexico Idaho New York Connecticut Kansas Illinois Maryland Arizona North Carolina Montana
8.500% 8.500% 8.250% 8.000% 7.900% 7.810% 7.600% 7.600% 7.500% 7.500% 7.350% 7.300% 7.000% 6.968% 6.900% 6.750%
Arkansas Oregon Tennessee Alabama Hawaii Missouri Virginia Oklahoma Georgia Florida Utah South Carolina Mississippi Colorado Texas Michigan
6.695% 6.600% 6.500% 6.500% 6.400% 6.250% 6.000% 6.000% 6.000% 5.500% 5.000% 5.000% 5.000% 4.630% 4.500% 1.900%
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BIO
Laurence R. Cusack, JD, LLM, Partner in Charge of KPMG Business Incentives Group Larry is the partner in charge of the KPMG Strategic Relocation and Expansion Services (SRES) practice. Larry also leads the KPMG Pennsylvania State and Local Tax Practice. He has over 15 years of experience serving clients of various sizes and industries. He is a member and past Chairman of the Philadelphia Bar Association State and Local Tax Committee. Larry sits on the Philadelphia Revenue Commissioner’s Tax Advisory Council, and leads a team from KPMG that serves as state and local tax advisor to the Team Pennsylvania Foundation and the Pennsylvania Governor’s Action Team. He is a member of the advisory boards of the tax section of the Philadelphia Bar Association and the Philadelphia Tax Reform Commission. He has been a guest lecturer on various state and local tax topics at the Temple University School of Law and Villanova University School of Law LLM programs as well as the Committee On State Taxation (COST). He is a regular speaker before the Philadelphia and Virginia Chapters of the Tax Executives Institute and various other professional organizations. Larry served as editor and contributing author to the Pennsylvania Tax Handbook 2000 2004 editions. Larry received a Juris Doctor and an LLM, Taxation, from the Temple University School of Law. He received a Bachelor of Science in Accounting from the University of Scranton.
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