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S.A.L.T. Select Developments: Maryland

Baker Donelson's S.A.L.T. Select Developments will identify important state and local tax developments from Maryland.

Overview

State and local taxes impact almost every taxpayer. S.A.L.T developments in any one jurisdiction can be frequent and sometimes confusing. Where multiple jurisdictions are involved, staying current with state and local tax developments can be overwhelming for any taxpayer.

To assist you with staying current on a periodic basis, Baker Donelson's S.A.L.T. Select Developments will identify one or more recent state and local tax developments from Maryland.

October 2020

Updates Reported – The Maryland Office of the Comptroller issued a News Release on September 23, 2020, announcing the Office's decision to forego until February 1, 2021, a requirement that alcohol distributors report any retailer upon their inability to pay for delivered products within prescribed timelines. As stated in this News Release, the Office's Field Enforcement Division regulates the production and sale of alcoholic beverages in Maryland, and works to ensure an even playing field for retailers by regulating the credit that distributors afford to retailers when selling products. The Release further states that distributors must place retailers who do not pay within a certain period of time on a list maintained by the Division that requires the retailer to pay in cash until credit debts are paid.

The Comptroller was quoted in that Release as stating that "alcohol distributors and retailers have long-lasting, positive relationships and have built up a trust with each other which enables them to work out payment plans, if necessary." The Release further states that this action merely removes the reporting requirement temporarily so that distributors don't have to place retailers on a "naughty list" for circumstances beyond their control. The Release further states that this suspension of the reporting requirements has been in play beginning in March 2020 but was previously issued in two-month increments; whereas this longer freeze provides more certainty for businesses during this difficult and uncertain time. More information can be found here.

September 2020

Coronavirus Tax Payment and Return Filing Responsibilities - Updates Reported (September 30): The Maryland Office of the Comptroller issued a news release on September 17, 2020, reminding taxpayers that collection activities are on hold until after the COVID State of Emergency is lifted. According to the release, the COVID-19 State of Emergency Order issued by Governor Hogan is still in effect, and the Comptroller's Office has suspended collection activities but those activities will resume 30 days after the Order is lifted. Also according to this release, the Office of the Comptroller will mail notifications to certain tax filers of unpaid tax liabilities that were due on July 15, 2020, which was the extended deadline from the traditional April 15 tax due date. These mailings, which will provide the recipients with their account status, are being sent to taxpayers that have not paid the balances of certain taxes, including individual and corporate income, sales and use, and withholding taxes. As stated in the release, recipients of the notices are not required to take any action at this time; however, interest will continue to accrue on any unpaid balance from the time the tax was due, including the period of suspended collection activities, until the liability is paid, as well as a penalty of 10 percent on the total payment due. The release noted that taxpayers who pay the amount due upon receiving the notice can avoid future interest and penalties. The Comptroller was quoted in the release as stating that the Office is "sending these notices to urge those who owe taxes to call us now and work out a payment plan before more interest and penalties are charged. Our team will work with you to find a reasonable plan for your family circumstances or your business, but we must hear from you first." Taxpayers wishing to make payment or request a payment plan are asked to follow the instructions on the notice. More information can be found here.

August 2020

Coronavirus Tax Payment and Return Filing Responsibilities - Updates Reported (August 20): On July 24, 2020, the Maryland Office of the Comptroller issued Tax Alert #07-24 (Alert) which deals with the Maryland income tax. This Alert addresses the Maryland impact of the federal CARES Act on the (i) business interest expense deduction; (ii) limitation of excess business losses for noncorporate taxpayers; (iii) net operating losses; and (iv) qualified improvement property (QIP) bonus depreciation. The introductory provisions of that Alert state that Maryland generally conforms to federal income tax laws except where the Maryland Legislature has enacted decoupling legislation. However, Maryland law also provides that if the revenue impact of an Internal Revenue Code (IRC) amendment for a taxable year that begins in the calendar year in which the amendment is enacted is greater than $5 million, the amendment does not affect the determination of Maryland taxable income for that tax year. In other words, Maryland automatically decouples from those federal changes if the impact is greater than $5 million. The Alert states that, in a report dated June 12, 2020, the Bureau of Revenue Estimates concludes that each of the key provisions referenced above would have an impact greater than $5 million in each year affected, 2018, 2019 and 2020. Nevertheless, the Maryland statute permits decoupling only for purposes of calculating Maryland taxable income for the year in which the amendment was enacted. The Alert goes on to say that Maryland is therefore automatically decoupled from the CARES Act provisions affecting the tax year 2020, but conforms to that Act with respect to the years 2018 and 2019. The Alert goes on to address the impact of Maryland decoupling from the 2020 year with respect to each of the four tax topics referenced earlier. In brief, and subject to the Alert's analysis, the Alert states that (i) as to interest expense, Maryland is decoupled from IRC Section 163 as amended by the CARES Act as it applies to a tax year beginning in 2020; (ii) as to excess business losses, Maryland is decoupled from IRC Section 461(1) as amended by the CARES Act as it applies to the tax year 2020; (iii) as to net operating losses, Maryland is decoupled from IRC Section 172 as amended by the CARES Act as it applies to the 2020 year; and (iv) since Maryland has legislatively decoupled from the federal bonus depreciation except as such bonus is taken by a manufacturer, non-manufacturers may not take bonus depreciation on QIP at the Maryland level even though the property qualifies for federal bonus depreciation. Each of those tax topics are discussed in more detail in the Alert, which can be found here.

June 2020

Coronavirus Tax Payment and Return Filing Responsibilities - Updates Reported (June 25): On June 8, 2020, the Maryland Office of the Comptroller issued a news release stating that the first phase of the agency's new tax processing system, called Compass, will launch on July 6, 2020. According to this news release, the $160 million Compass will upgrade the state's tax processing system and integrate with the data warehouse to create a state-of-the-art program that will expand revenue-generating projects, provide enhanced reporting functionality and make it easier for taxpayers to view and manage their account online. The Comptroller's Office stated that "At a time when most businesses are facing extraordinary challenges, our agency is launching a much improved, easier-to-use reporting and payment system that will help business owners better navigate and manage this end of their accounting." The first phase, according to the news release, is focused on alcohol tax collection and license renewals; and that the Compass integrated tax system will continue to be implemented over the next several years, with corporate taxes launching in the first quarter of 2021, followed by business taxes and individual income taxes in 2022. This new system, according to the release, will improve fraud detection and prevention programs, increase the ability for taxpayers to manage their own accounts via an online portal, maximize compliance with best-practice security standards and maximize audit, collection, and reporting and estimating functionality. More information can be found here.

May 2020

Coronavirus Tax Payment and Return Filing Responsibilities - Further Updates Reported (May 8): On May 4, 2020, the Maryland Office of the Comptroller published Tax Alert 05-04-20 which superseded the Alert issued on May 1, and which addresses certain employer withholding requirements. According to Alert 05-04-20, Maryland employer withholding requirements are not affected by the current shift from working on the employer's premises to teleworking because taxability is determined by the employee's physical presence. This new Alert states that Maryland imposes income tax, and therefore a withholding requirement on employers, for employees domiciled in Maryland, statutory residence of Maryland, and non-residents receiving Maryland-sourced income. The Alert did note that residents of Virginia, Washington, D.C., West Virginia and Pennsylvania who earn wages, salary and certain other income for services performed in Maryland are exempt from the Maryland state income tax, and therefore from withholding, because Maryland has a reciprocal agreement with these states. The Alert also sets forth various FAQs addressing withholding requirements. More information can be found here.

April 2020

Coronavirus Tax Payment and Return Filing Responsibilities - Further Updates Reported (April 16): The Maryland Office of the Comptroller published Tax Alert 04-14-20A on April 14, 2020. This new alert is based on additional guidance issued by the IRS on April 9, and modifies the previous Alert issued on April 1. This most recent Alert expands the tax deadline relief until July 15 to include additional returns, tax payments and claims for refund, and generally applies to all taxpayers that have a filing or payment deadline falling on or after April 1, 2020 and before July 15. More information can be found here.

Coronavirus Tax Payment and Return Filing Responsibilities - Further Updates Reported (April 3): The Comptroller of the State of Maryland has included a Tax Alert dated March 20 on its website for purposes of addressing various questions dealing with the extended deadline for filing 2019 income tax returns and submitting 2019 income tax payments. That extension is to July 15 and Maryland individual, corporate, pass through entity, and fiduciary taxpayers are afforded the same relief at the Maryland level. This Alert also states that while the deadline to file the 2019 income tax return is July 15, interest and penalties shall be assessed on any unpaid tax from July 15 until the date the tax is paid. Further, the Alert states that fiscal year filings with tax years ending January 1 through March 31 are also eligible for the July 15 extension for filing returns and payment. Additionally, the due date for March quarterly estimated payments of 2020 taxes is also extended to July 15. The Alert also discusses the October 15 extension for individuals and the November 15 extension for corporations, which remain unchanged. Other specific extensions are provided for certain other Maryland taxes, such as sales/use taxes, withholding taxes, admissions and amusement taxes, alcohol taxes and tobacco taxes, among others. Further, the Alert states that the Comptroller' Office will cease certain tax collection efforts and such cessation is effective until 30 days after the lifting of the State of Emergency by the Governor of the State. Under this cessation, the Comptroller's Office will not send out lien warning notices, issue liens, attach bank accounts, hold up the renewal of any license, or offset vendor payments for Maryland taxes. In that regard, taxpayers who are currently on a payment plan for delinquent business and/or income taxes and who are unable to make those payments due to the COVID-19 crisis are encouraged by the Alert to contact that Office (contact information in the Alert) to discuss delaying payments. More information can be found here.

March 2020

Coronavirus Tax Payment and Return Filing Responsibilities - Due Date Changes Reported (March 25): On March 18, the Comptroller of the State of Maryland issued a news release stating that the 90-day extension of the April 15 deadline for federal income tax payments would also be allowed to Maryland business and individual income taxpayers, and that no interest or penalty for late payments will be imposed upon 2019 tax payments that are made by July 15, 2020. This announcement does not extend the deadline for filing returns, but rather only addresses an extension of the April 15 deadline for making the income tax payments. The release did note that taxpayers who take advantage of the federal extension to file the return will continue to be automatically granted an extension on their Maryland tax filings. In a separate news release, the Comptroller stated that all of the agency's branch offices throughout Maryland will be closed and will remain closed until further notice, and that taxpayers are urged to file their returns electronically and to submit their questions either via phone at 1-800-MD-TAXES or via email at taxhelp@marylandtaxes.gov. More information can be found here and here.

Coronavirus Tax Payment and Return Filing Responsibilities - Changes Reported (March 19): On March 11, the Comptroller for the State of Maryland issued a news release announcing that business-related tax filings due during the months of March, April and May will be extended to June 1. This extension applies to businesses filing sales and use tax, withholding tax, and admissions and amusement tax, as well as alcohol, tobacco, and motor fuel excise taxes, tire recycling fees, and bay restoration fee returns. Further, the release states that business taxpayers who file and pay by the extended due date will receive a waiver of interest and penalties. Additionally, the release states that if the Internal Revenue Service (IRS) extends the April 15 filing deadline for corporate and individual income tax returns, Maryland will conform to the decision of the IRS. Find more information here

Bulk Sales Tax Law: The Comptroller of Maryland has recently made the Bulk Sales Act a focus of enforcement. It is an often overlooked tax which applies when an existing business is bought. Based on reliable sources from the Comptroller's Office, this tax has been sporadically enforced in the past, but will now be highly targeted by the Comptroller's Office, in large part due to the significant revenues that could be generated. The law provides that the purchaser of an existing Maryland business must pay a six percent bulk sales and use tax on the price of the tangible personal property, such as furniture and fixtures, computer software, business records, customer lists and non-capitalized goods and supplies, which are part of the business. The law also applies to "Bulk Sales" of a major part of the inventory of an enterprise. In addition to payment of the tax, the law also imposes certain "Notice" requirements on the seller of the business. Click here for the Bulk Sales Act.

February 2020

Corporate Income Tax: The Maryland Senate has introduced legislation that would require combined reporting for all affiliated corporations engaged in a unitary business. The proposed bill would take effect July 1, 2020, and apply to tax year 2021 and beyond. However, it is noteworthy that sales in tax year 2020 would be considered for purposes of calculating the apportionment formula. The bill also provides that the Comptroller shall assess interest and penalties if a corporation pays estimated taxes less than 90 percent of the required tax. The Maryland Senate has also recently introduced combined reporting legislation that, if enacted, would only apply to retail trade and food and beverage establishments beginning in 2021. The Corporate Tax Fairness Act of 2020 can be found here, and the Small Business Fairness Act can be found here.

November 2019

Income Taxes: On November 4, 2019, the Supreme Court of the United States denied a taxpayer's petition to review the non-standard apportionment method used by the Comptroller of Maryland. The Comptroller's position was that when certain relationships exist between out-of-state entities and their in-state affiliates, the entities can be viewed as part of a unitary business enterprise. In particular, when there is a substantial mutual interdependence between the entities, an alternative apportionment method is proper. Taxpayer viewed this Comptroller's position as being an unconstitutional tax on the income of interstate business. The Supreme Court's docket regarding this case can be found here.

October 2019

Sales Tax: Wayfair has hit Maryland! The General Assembly passed a law during their 2019 legislative session which requires a marketplace facilitator to collect Maryland sales and use tax on a retail sale by a marketplace seller to a buyer in Maryland. The Comptroller of Maryland has finally issued its much anticipated guidance regarding the new law, which went into effect October 1, 2019. The law, much like "Wayfair" laws passed in other states after the Supreme Court decision in Wayfair v. South Dakota, sets minimum thresholds which trigger the requirement to collect sales tax. Under the new guidance, marketplace facilitators and out-of-state vendors who make direct sales are required to register to collect Maryland sales and use tax if they sell tangible personal property or taxable services for delivery in Maryland and satisfy, during the previous calendar year or current calendar year, either of the following criteria: (a) gross revenue from the sale of tangible personal property or taxable services delivered in Maryland exceeds $100,000; or (b) tangible personal property or taxable services were sold for delivery into Maryland in 200 or more separate transactions. For more information, see Maryland Income Tax – Tax Alert 09-19

September 2019

Sales Tax: The gig economy and peer-to-peer transactions are a growing part of our economy, and states are taking notice. Maryland has enacted legislation to specifically subject peer-to-peer car sharing arrangements to sales tax. The Maryland legislature expanded the definition of "short-term vehicle rental" to include a shared motor vehicle used for peer-to-peer care sharing and made available on a peer-to-peer car sharing program. The legislation set the sales tax rate for these transactions at eight percent (as opposed to the standard six percent for most sales tax transactions). The taxable amount includes the sales price and all related charges, including delivery fees, cleaning fees, booking fees, protection packages, etc. With the rapidly growing world of peer-to-peer transactions, expect to see other states enact similar legislation to maximize sales tax revenue. More details about the legislation can be found here.

August 2019

Tax Crimes: The Comptroller of Maryland, the Maryland Attorney General's Office, continues to pursue criminal prosecutions for unscrupulous tax return preparers. Most recently, on July 25, a tax preparer pled guilty in Circuit Court to two counts of filing a false income tax return. It was determined that many of the Maryland tax returns he filed on behalf of his clients included false information. He included the false information to fraudulently minimize the taxpayers' Maryland tax liabilities and increase the tax refunds the taxpayers received from the State of Maryland. Based on the false and fraudulent tax returns he prepared and filed, his clients received tax refunds totaling approximately $90,000. While the preparer faced imprisonment for up to ten years on each count, the judge ultimately sentenced him to five years' incarceration, suspended, five years of supervised probation, and ordered him to pay restitution of approximately $90,000 to the State of Maryland. He is also prohibited from acting as a tax preparer.

July 2019

Apportionment: On June 27, 2019, the Maryland Court of Special Appeals concluded that the Comptroller of Maryland had the discretion to use a "blended apportionment factor", instead of its standard apportionment formula, since the standard apportionment factor would have resulted in a factor of zero. This ruling dealt with an out-of-state wholly owned subsidiary which arguably did not have real economic substance as a separate business entity apart from its parent corporation that did business in Maryland. In finding that nexus exists, the court considered (1) the out-of-state subsidiary's dependence on its parent for its income, (2) the circular flow of money between the out-of-state subsidiary and its parent, (3) the out-of-state subsidiary's reliance on its parent for core functions and services, and (4) the general absence of substantive activity from the out-of-state subsidiary that was in any meaningful way separate from its parent. See court's finding here.

June 2019

Sales Tax: Effective June 1, 2019, short-term rentals made by short-term rental platforms are now subject to the Maryland sales and use tax. The short-term rental platforms must collect and remit the tax to the Comptroller. The legislation broadly defines short-term rentals as "the temporary use of a short-term rental unit to provide accommodation to transient guests for lodging purposes in exchange for consideration." A short-term rental platform is an Internet-based entity that (1) advertises available short-term rental units and (2) receives compensation for booking transactions on behalf of the owner. See Senate Bill 533.

For more information about state and local tax developments in Maryland, please contact:

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