Business and Corporate

labor

By Jaye Calhoun and David Hamm

It’s time to amend the governing documents of flow-through entities taxed as partnerships to address recent federal legislative changes impacting all such entities.  Failure to amend now could result in unfavorable tax consequences.  Section 1101 of The Bipartisan Budget Act of 2015 (the “BBA”) substantially changes how the Internal Revenue Service may conduct audits of flow through entities taxed as partnerships.  Due to the increased popularity of limited liability companies, most taxed as partnerships, the Internal Revenue Service has been chafing under the relatively restrictive rules governing audits found in the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”).  The BBA eliminates many of the provisions of TEFRA that made IRS’ job of policing compliance by partnerships with the tax laws more difficult and replaces them with new centralized partnership audit rules, effective for returns filed for partnership tax years beginning after Dec. 31, 2017. In order to implement the new rules, IRS has re-released proposed regulations on June 13, 2017 and has invited comments in anticipation of a hearing on the proposed regulations currently scheduled for September 18, 2017.  The proposed regulations were initially released on January 18, 2017, but were withdrawn on January 20, 2017 in light of the Trump Administration’s freeze on all new and proposed federal rule making.

As a result of BBA, and as fleshed out in the proposed regulations, the new partnership audit rules provide that, among other things:

  • Out with the TMP and in with the PR – There is no longer a “tax matters partner/member,” but, instead, partnerships must designate a “partnership representative,” who will have the sole authority to act on behalf of the partnership (including, under certain circumstances, to decide which partners will pay any deficiency) and who is not required to be a partner.  If the partnership fails to designate the partnership representative, the IRS will designate a partnership representative for it.
  • Partnership Itself May be the Taxpayer – Unless certain partnerships makes an election to “push out” additional taxes owed as a result of an audit to the audited (“reviewed”) year partners, such additional taxes will now be paid by the partnership;
  • Annual Election Out Available to Certain Partnerships – The new rules apply to all partnerships except for those that are both qualified to “elect out” (generally partnerships with under 100 partners, none of which can be a disregarded entity or another partnership), and which make an annual election that the new rules do not apply.

The significant changes brought about by the BBA and the proposed regulations (likely to become final in substantially similar form) require substantive amendments to governing documents of all entities taxed as partnerships to address these issues and others. Of note, Louisiana does not currently tax partnerships, as partnerships, and will have to adopt rules to adapt to the federal changes.  In the meantime, the January 1, 2018 effective date of the BBA is approaching. Thus, the time for providing notice and counsel to your clients is quickly running out.

  • This article originally appeared in the New Orleans Bar Associations Tax Law Committee Blog.

Louisiana State Capital

By Matthew C. Meiners

Under Louisiana law, workers’ compensation is the exclusive remedy that an employee may assert against his employer or fellow employees for work-related injury, unless he was the victim of an intentional act. That exclusive remedy also extends to statutory employers.

Workers’ compensation legislation was enacted to provide social insurance to compensate victims of industrial accidents, and it reflects a compromise between the competing interests of employers and employees: the employer gives up the defense it would otherwise enjoy in cases where it is not at fault, while the employee surrenders his or her right to full damages, accepting instead a more modest claim for essentials, payable regardless of fault and with a minimum of delay. However, due to the fear that employers would attempt to circumvent that liability by interjecting between themselves and their workers intermediary entities which would fail to meet workers’ compensation obligations, the law provides that some principals are by statute deemed, for purposes of liability for workers’ compensation benefits, the employers of employees of other entities. This is what is known as statutory employment, and it is intended to provide greater assurance of a compensation remedy to injured workers.

Under Louisiana law, there are two bases for finding statutory employment:

First Basis: The existence of a written contract recognizing the principal as the statutory employer. A “principal” is any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof. Such a contractual provision creates a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.

Second Basis: Being a principal in the middle of two contracts, referred to as the “two contract theory.” The two contract theory applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. The two contract statutory employer status contemplates relationships among at least three entities: a general contractor who has been hired by a third party to perform a specific task, a subcontractor hired by that general contractor, and an employee of the subcontractor.

A statutory employer is liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under the Louisiana Worker’s Compensation Act which the statutory employer would have been liable to pay if the employee had been immediately employed by the statutory employer. In exchange, the statutory employer enjoys the same immunity from tort claims by these employees as is enjoyed by their direct employer. Additionally, when a statutory employer is liable to pay workers’ compensation to its statutory employees, the statutory employer is entitled to indemnity from the direct employer and has a cause of action therefor.

Statutory employer status can provide very valuable protection to companies who contract for work to be performed in Louisiana; however, you should consult your attorney to make sure you meet the legal requirements, and to properly draft the necessary contractual provisions.

 

structure

By Matthew C. Meiners

In targeting a company for purchase, many buyers prefer to purchase the assets of a company, as opposed to the stock (or other equity) of the company because, as a general rule, the buyer of assets in an asset acquisition does not automatically assume the liabilities of the seller.  Accordingly, an asset acquisition generally allows the buyer and seller to select which assets and liabilities will be transferred.  However, in certain circumstances, the buyer can be held responsible for liabilities of the seller if a court determines that certain exceptions are met.  Louisiana courts have been willing to impose liability on asset-sale successors on the following grounds:

  1. The buyer assumed the liabilities;
  2. The transaction was entered into to defraud the seller’s creditors;
  3. The buyer company is a “mere continuation” of the seller company; and
  4. The transaction was “in fact” a merger.

The “mere continuation” exception is probably the most likely to catch a buyer off guard.  Louisiana courts, in considering whether an asset-sale successor is a “mere continuation” of the seller company, have considered the extent to which the buyer company has retained the same employees, supervisory personnel, company name, and physical location as the seller company.  Further, prior business relationships may be considered, as well as the continuity of general business operations and the identity of the business in the eyes of the public.  A threshold requirement to trigger a determination of whether successor liability is applicable under the “mere continuation” exception is that one company must have purchased all or substantially all the assets of another.

If you plan to purchase all or substantially all of the assets of a company, especially if your goal in choosing an asset purchase over a stock purchase is to avoid or minimize your liability for the seller’s liabilities, you should carefully consider the ways in which you could be seen as merely continuing the seller’s business under the factors described above.  You may be signing on for more liability than you anticipate.

By J. Eric Lockridge

Large and small offshore service companies are turning to the Bankruptcy Code for help with restructuring their balance sheet, and turning to Washington for help with generating more work.

One of the largest offshore service companies in the world, Tidewater, announced this week that it will file a Chapter 11 bankruptcy petition in Delaware on or before May 17, 2017. This is not a surprise to the markets. Tidewater received notice from the New York Stock Exchange in April that it is at risk of being delisted before the end of the year because its average stock price sat below $1.00 per share for too long. Tidewater’s press release announcing the upcoming bankruptcy says the company has secured broad support from secured creditors for a pre-packaged plan that will effectuate a form of debt-for-equity swap. The plan will also reject certain sale-lease back agreements for a portion of Tidewater’s fleet. Expect a fight over lease-rejection damages.

A smaller operator focused on the Gulf of Mexico, GulfMark Offshore, also announced this week that it is planning a Chapter 11 filing. Offshore Support Journal reported that GulfMark Offshore’s most recent SEC filing discloses the company will likely file a Chapter 11 bankruptcy petition on or before May 21, 2017. The company is working with advisors to secure support for a restructuring agreement that will include a backstop commitment from certain note holders and a debt-for-equity swap.

Some in the offshore industry are lobbying the White House and others to extend the “America First” agenda to the offshore-service industry in hopes that might provide a boost. For example, see Harvey Gulf’s recent open letter to President Donald Trump here. Many in the offshore service industry would like to see the current administration enforce regulations requiring proper plugging and abandonment (P&A) of many non-producing or low-producing wells in the Gulf of Mexico’s shallow water. They have to be careful about how loudly they push that agenda, however, or they may alienate the very exploration and production (E&P) companies that would hire them. Many E&P companies would like to see enforcement of those regulations delayed as long as possible, and at least until the price of oil is higher.

Enforcing P&A obligations would likely create thousands of jobs and boost the economy along the Gulf Coast, where President Trump received strong electoral support. The House Majority Whip, Rep. Steve Scalise (R-LA), represents a district along the Louisiana coast that is home to scores of offshore service companies and their vendors, which gives that industry some important clout on Capitol Hill. Delaying enforcement of P&A obligations and/or making them less onerous might be more consistent with a “regulation-roll-back” agenda and with the interests of many E&P companies, several of which have strong ties to the current administration and deep relationships in Congress.

Will Washington take any action to provide some relief for offshore service companies, their employees, vendors, and lenders? How will an increase in Chapter 11 cases for offshore service companies affect the industry and the companies that have (so far) avoided bankruptcy? Kean Miller and many of our clients will keep a close watch as events unfold.

 

Delaware

By David P. Hamm, Jr.

In Sandys v. Pincus, the Delaware Supreme Court reversed a “thoughtful forty-two page opinion” by Chancellor Bouchard that dismissed a derivative action based upon the stockholder’s failure to make pre-suit demand.[1] The court’s opinion can be found here.  The underlying Court of Chancery opinion can be found here.

Expansion of the Rales Test for Demand Futility

The authority of the board of directors to manage the business and affairs of a corporation under Section 141(a) of the Delaware General Corporation Law extends to the board’s authority to decide whether to initiate or refrain from initiating litigation. Thus, pursuant to Court of Chancery Rule 23.1, a plaintiff in a derivative action must “either make a demand upon the board to initiate the litigation or demonstrate that such demand would be futile.”[2]

Delaware courts apply either the Aronson test or the Rales test in determining whether a plaintiff’s demand upon the board would be futile. In general, the Aronson test requires the plaintiff to plead particularized facts that create a reasonable doubt that either “the directors are disinterested and independent” or that “the challenged transaction was otherwise the product of a valid exercise of business judgment.”[3] In general, the Rales test requires the plaintiff to plead particularized facts that create a reasonable doubt that, at the time the complaint was filed, “the board of directors could have properly exercised its independent and disinterested business judgment in responding to a demand.”[4] The timing of the inquiry is a chief distinction between the two tests.

The Aronson test has been criticized over the years and exceptions to the application of the Aronson test have been created in several contexts. Three such exceptions were outlined in Rales as follows:

“A court should not apply the Aronson test for demand futility where the board that would be considering the demand did not make a business decision which is being challenged in the derivative suit. This situation would arise in three principal scenarios: (1) where a business decision was made by the board of a company, but a majority of the directors making the decision have been replaced; (2) where the subject of the derivative suit is not a business decision of the board; and (3) where . . . the decision being challenged was made by the board of a different corporation.”[5]

Chancellor Bouchard’s application of the Rales test to the plaintiff’s Brophy and Caremark claims do not result in the expansion of the test’s application. However, the Chancellor’s application of the Rales test in the context of the plaintiff’s claim that the board breached its fiduciary duties by approving the secondary offering in question (the “Secondary Offering Claim”) does constitute an expansion of the Rales test. The novelty of the test’s application is acknowledged by Chancellor Bouchard as follows:

“In identifying these three scenarios, the Court [in Rales] included a qualification that they were the ‘principal’ scenarios where Aronson would not apply, implying that there could be other scenarios. In my opinion, this case presents such a scenario.”[6]

The Chancellor set forth the following facts in support of his application of Rales to the Secondary Offering Claim:

  1. A majority of the board that approved the secondary offering “had a personal financial interest in the transaction such that they may have received an unfair benefit and the transaction may be subjected to entire fairness review.”[7]
  2. A majority of the board was not changed from the time the secondary offering was approved to the time the complaint was filed. Thus, the “principal scenario” set forth by the Court in Rales did not find application.
  3. The board composition changed from the time the secondary offering was approved to the time the complaint was filed to the extent that a majority of directors derived no personal financial benefit from the secondary offering.

These facts led Chancellor Bouchard to conclude that the demand futility inquiry should be focused solely upon the board that existed at the time the complaint was filed (as required by Rales) rather than the board that existed at the time the second offering was approved (as required by the second prong of Aronson).

The application of the Rales test was also supported by the Chancellor’s position that it “functionally covers the same ground as the Aronson test” and “investigates the same sources of potential partiality that Aronson would examine.”[8]  The Chancellor further reasoned that the Rales test “provides a cleaner, more straightforward formulation to probe the core issue in the demand futility analysis for each board member who would be considering plaintiff’s demand.”[9]

Although the Delaware Supreme Court did not expressly adopted Chancellor Bouchard’s expansion of the Rales test, it did implicitly do so by utilizing the test in its analysis: “On appeal, neither party contests the applicability of the Rales standard employed by the Court of Chancery. Therefore, we use it in our analysis to determine whether the Court of Chancery erred in finding that a majority of the board was independent for pleading stage purposes.”[10]

As a result, the Delaware Supreme Court has, at least implicitly, expanded the application of the Rales test in the demand futility context.

Particularized Facts Providing Grounds of Reversal

While the Delaware Supreme Court implicitly approved of Chancellor Bouchard’s utilization of the Rales test, it expressly reversed his application of same.  The reversal was based upon “particularized facts” that created a reasonable doubt as to the impartiality of three directors (Ellen Siminoff, William Gordon, and John Doerr).

The Delaware Supreme Court reversed Chancellor Bouchard’s independence determination as to Ellen Siminoff based upon the particularized fact that she and her husband co-own an airplane with Mark Pincus (the controller). Despite the fact that the plaintiff simply characterized the co-ownership of the airplane as a business relationship, the court saw more there and concluded that the co-ownership of the plane was “suggestive of an extremely intimate personal friendship” and created “a reasonable doubt that she [could] impartially consider a demand adverse to his [Pincus’] interests.”[11] While admittedly limited to the facts of this case, the Delaware Supreme Court’s analysis on this point arguably lowers the level of proof needed to show demand futility.

Of greater import, the Delaware Supreme Court reversed Chancellor Bouchard’s independence determination as to William Gordon and John Doerr based upon particularized facts that evidenced “a mutually beneficial network of ongoing business relations” between several of the directors.[12] Gordon and Doerr are both partners at Kleiner Perkins Caufield & Byers, a venture capital firm. Kleiner Perkins owns 9.2% of Zynga, Inc.’s stock, invested in a company co-founded by Pincus’ wife, and has an equity position in a company where another Zynga director, Reid Hoffman, is both a shareholder and director.

The court’s analysis on this point has potentially significant implications given the realities of the venture capital landscape. However, such implications can be qualified by the fact that William Gordon and John Doerr did not qualify as independent directors under the NASDAQ Listing Rules.[13] The import of this fact for the court is clearly seen by the following dicta: “[T]o have a derivative suit dismissed on demand excusal grounds because of the presumptive independence of directors whose own colleagues will not accord them the appellation of independence creates a cognitive dissonance that our jurisprudence should not ignore.”[14]

Conclusion

In sum, Sandys arguably expands the application of the Rales test and provides the representative plaintiff bar with a lower threshold for demonstrating demand futility. While limited to the facts of the case, the court’s analysis should be considered when making internal determinations as to the independence of directors.

_________

[1] Sandys v. Pincus, No. 157, 2016, 2016 WL 7094027 (Del. Dec. 5, 2016) (Valihura, J., dissenting).

[2] Sandys v. Pincus, No. CV 9512-CB, 2016 WL 769999, at *6 (Del. Ch. Feb. 29, 2016), rev’d, No. 157, 2016, 2016 WL 7094027 (Del. Dec. 5, 2016).

[3] Id. (quoting Aronson v. Lewis, 473 A.2d 805, 814 (Del.1984).

[4] Id. (quoting Rales v. Blasband, 634 A.2d 927, 934 (Del. 1993).5. Rales v. Blasband, 634 A.2d 927, 933–34 (Del. 1993) (emphasis added).

[6] Id. at *12.

[7] Id.

[8] Id.

[9] Id. at *13.

[10] Sandys, 2016 WL 7094027, at *3.

[11] Id. at *1.

[12] Id. at *5.

[13] See NASDAQ Marketplace Rule 5605(a)(2).

[14] Sandys, 2016 WL 7094027, at *5.

 

Louisiana

By William J. Kolarik, II

On April 25, 2017, State Representative Sam Jones requested that the Louisiana House Committee on Ways and Means voluntarily defer HB628, which would have imposed a commercial activity tax upon many business organizations doing business in Louisiana.  The Committee’s vote to voluntarily defer the bill means that the proposed commercial activity tax is likely dead for the 2017 legislative session.  The proposed commercial activity tax was the centerpiece of Louisiana Governor Edwards’ tax package and the deferral of the proposed bill means that Governor Edwards and Louisiana legislators will need to resolve Louisiana’s current budget crisis through other means.  The Kean Miller State and Local Tax team is reviewing proposed Louisiana tax legislation and will update its blog when our review is complete.

la house of reps

By William J. Kolarik, II

On April 17, 2017, the legislation that composes the centerpiece of Governor Edwards’ proposed tax reforms was filed in the Louisiana House of Representatives.  House Bill 628, introduced by state Rep. Sam Jones, contains the legislation that would establish the commercial activity tax.  The Kean Miller State and Local Tax team is reviewing the proposed legislation and will update its summary of the proposed Louisiana tax reform package after our review is complete.

 

compass

By David P. Hamm, Jr.

Helping sellers navigate the uncertain horizon of post-closing indemnification claims is a crucial part of a deal lawyer’s job on the sell-side of any M&A transaction. According to a relatively recent study by Shareholder Representative Services (the “2013 SRS Study”), approximately 67% of private M&A transactions have “material post-closing issues.”[1]  While post-closing liability exposure is industry and deal specific, the empirical data presented by the 2013 SRS Study provides crucial insight for the deal lawyer tasked with helping her client navigate these uncertain waters. A copy of the full 2013 SRS Study can be found here.

2013 SRS Study Sample

The 2013 SRS Study is based upon claims made against escrow holdback funds for 420 private-target acquisitions that closed between 2007 and 2013. There were approximately 700 such claims made in connection with the analyzed acquisitions. Each of these claims was sorted by its type and size.

As the saying goes, a picture is worth a thousand words. To that end, two key graphics contained in the 2013 SRS Study are set forth below that highlight several of the study’s insights.

Breakdown of Claims in General

hamm pic

As the graphic above shows, roughly 400 of the 700 post-closing claims within the 2013 SRS Study Sample were related to alleged breaches of representations and warranties. The graphic below illustrates the representations and warranties that are most frequently the subjects of indemnification claims.

Breakdown of R&W Claims

hamm pic 2

This chart is the most valuable chart in the entire 2013 SRS Study as it provides a solid basis for clear counsel to sell-side clients in the M&A context. It also shows the particular representations and warranties that should be focused upon prior to closing to minimize post-closing claims.

Conclusion

The 2013 SRS Study enables the M&A lawyer to take the abstract notion of post-closing liability exposure and convert it into a discussion of empirical data. Again, while post-closing liability exposure is industry and deal specific, the 2013 SRS Study provides helpful market data that can help inform clients and prevent post-closing claims.

__________

[1] https://www.srsacquiom.com/files/2013escrowstudy.pdf

7th

By Erin Kilgore and Scott Huffstetler

On April 4, 2017, the Seventh Circuit Court of Appeals ruled that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.

As previously noted, there has been much debate among the courts regarding the meaning of the term “sex” under Title VII and whether discrimination based on sexual orientation and/or transgender status falls within the scope of Title VII’s protection. With yesterday’s 8-3 ruling, the Seventh Circuit became the first appellate court to interpret Title VII’s prohibition on discrimination based on “sex” as barring discrimination based on sexual orientation.   The ruling is consistent with the Equal Employment Opportunity Commission’s interpretation of Title VII and is particularly significant given that the Seventh Circuit is considered among the relatively conservative federal appellate courts. Additional information regarding the decision can be found here.

This decision is only binding on employers in the Seventh Circuit (which encompasses Illinois, Indiana, and Wisconsin).   Courts in other jurisdictions have reached the opposite conclusion. For example, just a few weeks ago, a panel of the Eleventh Circuit Court of Appeals, another conservative jurisdiction, ruled that Title VII does not protect employees from discrimination on the basis of sexual orientation.  The Supreme Court may ultimately weigh-in on this issue to resolve the emerging split among the appellate courts.

The Fifth Circuit (which encompasses courts in Louisiana, Mississippi, and Texas) has not held that Title VII prohibits discrimination based on sexual orientation. Nevertheless, all employers should be aware of this decision. It is likely that attorneys, advocates, and federal agencies will rely on this ruling in an effort to expand the scope of Title VII in other jurisdictions.

 

 

lsc

By Jaye A. Calhoun, Jason R. Brown, and William J. Kolarik, II

On March 29, 2017, Louisiana Governor John Bel Edwards released the broad outlines of his Louisiana tax reform proposal (the “Tax Reform Proposal”), which he promoted as a comprehensive plan to stabilize Louisiana’s budget and avoid future mid-year budget cuts. The Governor’s plan includes individual income tax, sales and use tax, corporate tax, and tax expenditure proposals designed to, if enacted, replace the revenue generated by the “fifth-penny” of sales and use tax (that expires in 2018) and generate revenue to sustain Louisiana’s current budget structure. Governor Edwards announced the proposal alongside Kimberly Robinson, Secretary of the Louisiana Department of Revenue, during a press conference at the Louisiana State Capitol. And, while he did not provide a draft of legislation proposed to implement the tax plan or discuss many specific details, he did provide an overview of the Tax Proposal.

The Governor made an effort to tie the Tax Reform Proposal to the Final Report issued January 27, 2017, by the Task Force on Structural Changes in Budget and Tax Policy (the “Task Force”), but many who have studied the report were unconvinced. Indeed, while some of the sales tax changes were discussed in the Final Report, the commercial activity tax, the most significant and controversial aspect of the Governor’s tax reform proposal did not appear in the Task Force’s Final Report. An overview of the Governor’s Tax Reform Proposal follows.

Corporate Tax Proposals

The Governor’s plan would implement a number of changes impacting corporate taxpayers, including: (1) phasing out the corporation franchise tax; (2) repealing the corporation income tax deduction for federal income taxes; (3) reducing the corporation income tax rate; and (4) enacting a commercial activity tax (i.e., a gross receipts tax). Essentially, the Governor proposes to eliminate the franchise tax, over time, and retain the corporation income tax, but also impose a gross receipts tax to serve as a type of alternative minimum tax. Until the franchise tax is phased out, a corporate taxpayer would compute its liability under all three taxes, but would only owe franchise taxes and the greater of the corporation income or the commercial activity tax.

Phase-Out of the Corporation Franchise Tax

Under the Tax Reform Proposal, the corporation franchise tax would be phased out over a ten-year period. The Governor did not provide specifics on the phase-out but, presumably, it would occur in equally incremental annual reductions over a ten-year period. The Governor Edwards was unsure of the cost of phasing-out the franchise tax. The effective date of this reform was not specifically mentioned, but, because it was discussed in conjunction with the proposed commercial activity tax (discussed below), the Edwards Administration is likely considering beginning the phase-out in the 2019 franchise tax year (2018 filing period).

Repealing the Federal Income Tax Deduction

Currently, corporate income tax filers may deduct their federal income taxes paid when computing their Louisiana taxable income. Because the federal income tax deduction is constitutionally protected, repealing the deduction requires passage of a constitutional amendment supported by (a simple majority of) voters. Governor Edwards indicated at his press conference that the reduced corporate income tax rates, discussed below, would be contingent upon passage of such a constitutional amendment.

In 2016, the Governor proposed to collapse the tiered corporation income tax brackets into a flat six-and-one-half-percent (6.5%) corporate income tax rate to help resolve the 2016 budget shortfall. That proposal was similarly contingent upon the repeal of the federal income tax deduction through a constitutional amendment, which Louisiana voters rejected by a fifty-six to forty-four percent (56-44%) margin. Governor Edwards did not indicate at his press conference when the proposed constitutional amendment would be put to voters, but the most likely date would be November, 2017.

Reducing the Corporation Income Tax Rate

The Tax Reform Proposal would reduce the number of corporate income tax brackets from five (5) to three (3) and would reduce the corporation income tax rate upon repeal (via constitutional amendment) of the federal income tax deduction. Currently, Louisiana has five corporate income tax brackets – four percent (4%), five percent (5%), six percent (6%), seven percent (7%), and eight percent (8%). The Tax Reform Proposal would reduce the number of corporation income tax brackets to three (3) brackets at three percent (3%), five percent (5%), and seven percent (7%).

The Commercial Activity Tax

The Governor suggested that enacting a commercial activity tax would offset the costs of allowing the fifth-penny (of sales and use tax, discussed below) to expire on schedule, reducing the corporate and individual income tax rates, and phasing-out the franchise tax. The Governor did not provide many details of the proposed commercial activity tax, but did indicate that the tax was modeled upon similar taxes in use by other states. Based on the details released by the Governor and information provided by Secretary Robinson in meetings with trade groups around the state, it appears that the commercial activity tax would be similar to the commercial activity tax levied by the state of Ohio.

The commercial activity tax would be assessed upon any legal entity doing business in Louisiana. The tax base would be the entity’s gross receipts after deductions for (1) cash discounts allowed and taken; and (2) returns and allowances that are attributable to Louisiana. The proposed tax rate is thirty-five hundredths of one percent (0.35%).

The proposed commercial activity tax would apply as follows:

Entities subject to tax Entities exempt from tax
Partnerships Non-profit organizations
Limited liability companies Governmental entities
Limited liability partnerships Certain public utilities
Corporations Certain financial institutions
Subchapter S corporations Certain insurance companies
Joint ventures Businesses with $1.5 million or less of taxable gross receipts
Disregarded entities

While not specifically stated, it appears that sole proprietorships would also be subject to the commercial activity tax.

The proposed tax would apply at the full rate to businesses with $1.5 million or more in gross receipts.[1] All other businesses would be subject to a minimum commercial activity tax. The proposed minimum tax rates and commercial activity tax computation follow:

Taxable Gross Receipts Minimum Commercial Activity Tax Commercial Activity Tax
Less than $500K $250 No additional tax due
$500K – $1M $500 No additional tax due
$1M-$1.5M $750 No additional tax due
$1.5M to $3M N/A (0.35% x Taxable Gross Receipts) – [5,250 x ($3M – Taxable Gross Receipts)/$1.5M]
Greater than $3M N/A 0.35% x Taxable Gross Receipts

As noted above, the proposed commercial activity tax would only apply to gross receipts attributable to Louisiana. According to the proposal, the determination of gross receipts attributable to Louisiana would be identical to the determination of the numerator of the Louisiana sales apportionment ratio (for purposes of calculating the corporation income tax). The Tax Reform Proposal notes that gross receipts attributable to Louisiana would include:

  1. Gross rents attributed to real property located in Louisiana;
  2. Gross royalties from real property located in Louisiana;
  3. Gross receipts from the sales of tangible personal property received by the purchaser in Louisiana;
  4. Gross receipts from the sales of all other services if the purchaser or recipient of the service receives the benefit in Louisiana.

Because the determination of gross receipts attributable to Louisiana would be identical to the determination of the numerator of the Louisiana sales apportionment ratio, it appears the guidance related to sourcing sales for Louisiana corporation income tax purposes would also apply to the commercial activity tax.

For a corporation or a limited liability company that has elected to be taxed as a corporation, the commercial activity tax would function similar to an alternative minimum tax. For those taxpayers, the amount of tax liability would be the greater of: (1) the minimum commercial activity tax; (2) the commercial activity tax; or (3) the net corporation income tax due after the application of all credit carryforwards, nonrefundable credits, and (available) refundable credits. For a pass-through entity that is not subject to the corporation income tax with more than $1.5M in taxable gross receipts, the amount of tax liability would be the greater of: (1) the top-tier minimum commercial activity tax (i.e.,$750); or (2) the commercial activity tax.

Governor Edwards also noted that the administration intends to present an additional plan that would mitigate the impact of the commercial activity tax on low-margin businesses. The Governor did not provide specific details on the low-margin business plan, but he indicated that it would create a separate calculation designed to ensure that a business does not pay more than its “fair share.” The Governor did not indicate when he would provide details on his low-margin business plan.

The commercial activity tax proposal is projected to raise approximately $800-900M in revenue, which taken together with the other tax reforms would replace the revenue from the expiring fifth penny. Because the commercial activity tax is intended to replace the revenue from the expiring fifth penny, the proposed effective date is July 1, 2018.

Tax Expenditure Proposals

The Tax Reform Proposal would make permanent the temporary reductions to certain credits and incentives enacted in 2015 and currently set to expire in 2018. The proposal would also allow certain credits and incentives to sunset or expire as scheduled. The reductions to credits and incentives are expected to raise $192.5M in revenue based on fiscal notes from other legislative sessions.

While the tax reform proposal does not discuss specific credits and incentives, legislation enacted in 2015 reduced several corporate income and franchise tax credits for tax returns filed on or after July 1, 2015, and before June 30, 2018. The reduced tax credits included the jobs credit, the corporation income tax credit and credits paid by economic development corporations, regardless of the taxable year to which the return relates.

During the press conference, there was no substantive discussion of the tax expenditure proposals, but the Governor did note that he anticipated changes to the motion picture tax credit in the future. Specifically, Governor Edwards indicated a desire to replace the $180 million/year cap on motion picture tax credit payments with a $180 million/year cap on motion picture tax credits granted. The intention of this proposal is to align the granting and payment of motion picture tax credits so that credits are paid in the same year they are issued. The Governor indicated these changes to the motion picture tax credit would likely be phased-in over time. In informal meetings, Secretary Robinson has suggested that some of the 2015 and 2016 cuts would likely be made permanent.

Sales and Use Tax Proposals

The Governor’s Tax Reform Proposal contains three substantial sales and use tax proposals: (1) removing the “fifth-penny” enacted in 2016; (2) “cleaning” the two remaining “dirty pennies”; and (3) broadening the sales and use tax base to include certain services.

For those unfamiliar with Louisiana’s current state sales and use tax regime, currently, the cumulative state sales and use tax rate is five-percent(5%) and consists of the following components:

  1. The “basic rate” (two percent (2%));[2]
  2. Additional tax (one percent (1%));[3]
  3. Additional tax (ninety-seven hundredths of one percent (0.97%));[4]
  4. Louisiana Tourism Promotion District Tax (three-hundredths of one percent 0.03%);[5] and
  5. Effective for the period April 1, 2016 through June 30, 2018, a one percent (1%) additional tax, referred to as the “fifth-penny”.[6]

At present, Louisiana only levies the sales and use tax on the sale of eight specific services, including, notably, repair and maintenance services and the furnishing of hotel rooms. In addition, the current Louisiana sales and use tax regime contains approximately two hundred (200) sales and use tax exclusions and exemptions. But many of those exemptions and exclusions only apply to the two-percent (2%) basic rate. Those portions of the overall state sales and use tax rate to which all exemptions and exclusions apply do not apply are often referred to as “clean pennies,” although that term is misleading since many exemptions and exclusions still apply.

Removing the Fifth-Penny

To resolve the most recent Louisiana budget shortfall, in 2016, the Louisiana Legislature enacted “La. R.S. Sec. 47:321.1, which increased the cumulative state sales and use tax rate from four percent (4%) to five percent (5%). The so-called fifth-penny is currently set to expire on June 30, 2018. The tax reform proposal would allow the fifth-penny expire, as scheduled, at a cost of approximately $880 million.

“Cleaning” the Two Pennies That Comprise the Basic Rate

As noted above, the two pennies that compose the basic rate are subject to approximately 200 exclusions and exemptions. Governor Edwards’ Tax Reform Proposal would “clean” those two pennies, such that the exemptions and exclusions that apply to those pennies would be identical to those that apply to the other two pennies (that comprise the remainder of the full four percent (4%) sales and use tax rate, after the fifth-penny expires).

As a result of this proposal, certain Louisiana businesses may see an increase in the sales tax they pay on utilities and other business inputs. However, Governor Edwards hinted that certain business inputs, such as utilities used to power manufacturing equipment and related facilities, may remain exempt from the two percent (2%) basic rate. He also indicated that sales and use tax would be imposed upon certain manufacturing machinery and equipment, but that a new rebate may be available for taxes paid on those purchases. Finally, the Governor noted that existing agricultural exemptions and exclusions would be retained.

Cleaning the two “dirty pennies” is projected to raise approximately $180 million in revenue. The permanent repeal of certain sales and use tax exclusions and exemptions to the two pennies would be effective October 1, 2017.

Broadening the Sales and Use Tax Base to Include Additional Services

The Tax Reform Proposal would expand the sales and use tax base by subjecting additional services to tax. According to Governor Edwards, this aspect of the proposal would expand the sales and use tax to services currently taxed in Texas (with the exception of internet access fees). Services currently taxed in Texas that are not subject to tax in Louisiana include cable and satellite television services; credit reporting services; data processing services; information services; insurance services; non-residential real property repair, restoration, or remodeling services; real property services; and security services.

Similar to cleaning the two pennies that compose the basic rate, this expansion of the sales tax base has the potential to levy sales and use tax on certain business inputs, particularly real property and non-residential real property repair services, data processing services, and information services. According to Governor Edwards, expanding the sales tax base to include additional services is expected to generate approximately $200 million in revenue and would be effective October 1, 2017.

 Individual Income Tax Proposals

The Tax Reform Proposal would reduce Louisiana’s individual income tax rates for each of the three tax brackets from two percent (2%), four percent (4%), and six percent (6%) to one percent (1%), three percent (3%), and five percent (5%). However, like the corporation income tax proposal (described above), the reduction in individual income tax rates would be contingent upon Louisiana voters passing a constitutional amendment that would repeal the deduction for federal income taxes paid by the individual. According to Governor Edwards, this part of the proposal would cost the state approximately $42 million in revenue and would reduce the individual income tax liability for ninety-percent (90%) of filers. Nevertheless, Governor Edwards also noted that the inability to deduct federal income taxes would likely increase the Louisiana tax liability for individuals with incomes greater than $140,000.

It is not certain whether voters will approve a constitutional amendment to repeal the federal income tax deduction. As discussed above, in 2016, the last time such a change was put to the voters, the proposed constitutional amendment was handily rejected. Governor Edwards did not indicate when the proposed constitutional amendment would be put to voters but the likely date is November, 2017.

Going Forward

As with any legislative proposal, the “devil is in the details.” While the Governor announced at his press conference the broad outlines of his Tax Reform Proposal, detailed legislation has yet to be filed. Though non-fiscal bills must be pre-filed by March 31, 2017, the deadline for filing fiscal-related bills is April 18, 2017. Though it is likely one or more members of the Louisiana House of Representatives will author and introduce the Governor’s Tax Reform Proposal as a bill prior to the April 11, 2017 convening of the 2017 Regular Session, it is unclear at this time when that bill will be filed.

Implications

As noted above, the Edwards Administration did not provide copies of draft legislation or extensive details on the proposed tax reform package. Therefore, the implications of the proposal are not entirely clear. Nevertheless, it is possible to speculate on some of the most significant potential impacts of the tax reform proposal.

Implications of the Corporate Tax Proposals

The Edwards Administration, citing the Louisiana Department of Revenue, stated that, in 2015, there were 149,000 corporate tax filers in the state and that 129,000 of those filers paid no taxes to the state of Louisiana.[7] According the Governor Edwards, the commercial activity tax is designed to ensure that those 129,000 taxpayers with no corporate income tax liability pay their fair share. What the Edwards Administration did not discuss is the reason why certain taxpayers had no corporate income tax liability.

Due to the slump in the oil and gas industry and other factors, many corporate income tax filers are likely in net operating loss positions. Under the proposed tax reform package, those taxpayers would now pay the greater of: (1) the minimum commercial activity tax; (2) the commercial activity tax; or (3) the net corporation income tax due. It appears this proposal would allow the net operating losses of certain taxpayers, which are reflected as deferred tax assets on their financial statements, to expire unused. The expiration of net operating losses (or the proposed decrease in the tax rate) could reduce the value of deferred tax assets and immediately reduce a taxpayer’s earnings for financial statement purposes. A taxpayer with significant deferred tax assets should model the potential financial statement consequences of the proposed corporate tax reforms and determine the extent to which those consequences may impact its operations.

In addition, there is significant uncertainty in Louisiana about how the Department of Revenue will apply recent changes to the recently-enacted market-based corporate income tax sourcing rules for services. In October 2016, the Department issued proposed regulations related to the new market-based sourcing rules but, as of this writing, it has yet to issue final regulations. Therefore, it is not clear how gross receipts from services will be sourced for purposes of the proposed commercial activity tax.

The proposed commercial activity tax appears to rely on Louisiana’s ultimate destination rule for sourcing sales of services. Strict application of this rule would appear to benefit a corporate income taxpayer that manufactures goods in Louisiana for out-of-state export. In contrast, goods imported into the state for consumption, may be subject to multiple levels of the commercial activity tax. As a result, the proposed tax reforms appear to reallocate the tax burden among industry sectors. When modeling the proposed corporate tax reforms, a taxpayer should carefully consider its supply chain and whether its business inputs may bear one or more levels of commercial activity tax.

Finally, Ohio, upon which the proposed commercial activity tax appears to be modeled, attempts to mitigate commercial activity tax pyramiding by permitting certain related parties to eliminate intercompany transactions. The Tax Reform Proposal gives no indication that Louisiana intends to provide similar relief. Therefore, a taxpayer should assume that any intercompany transactions it engages in may be subject to commercial activity tax. This may result in a significant impact on certain supply chain structures, such as centralized procurement companies, leasing companies, and the reliance on other related parties.[8]

Implications of the Sales and Use Tax Proposals

As noted above, the proposed sales and use tax reforms have the potential to result in the taxation of a substantial amount of business inputs. The taxation of business inputs has the potential to result in tax pyramiding and may adversely impact certain business that cannot pass the cost of the tax through to consumers. Louisiana taxpayers should review the sales and use tax exemptions and exclusions that they rely upon and determine whether the tax reform proposal with repeal those exemptions and exclusions. In addition, a service industry taxpayer should determine whether the services it provides would be subject to tax under Texas sales and use tax law and, if so, how the proposed taxation of services, to be based on the Texas model, would affect their Louisiana business. Affected taxpayers may also want to consider whether they should be proactive and become involved in the legislative process at this time.

It should also be noted that the Governor did not propose streamlining the sales and use tax laws, or taking other action to make the laws more uniform, such as centralized collection for the state and its localities. Therefore, it does not appear that the proposals will remedy some of the most onerous features of the current Louisiana sales and use tax regime.

Implications of Considering Both the Corporate and Sales and Use Tax Proposals Together

At a minimum, the Governor’s proposals create significant additional compliance burdens for some taxpayers. Further, commercial activity taxes are sometimes referred to as “turnover taxes” because the tax burden is imposed on revenues generated by all transactions preceding the ultimate sale to the consumer. Turnover taxes tend to increase the costs of goods and services for businesses which, in turn, increases the cost of goods and services to consumers, and presumably sales and use tax collections on the final sales. As a result, the Governor’s commercial activity tax has the potential to make it more expensive to do business in Louisiana with whatever correlative impact that may have on economic development. Nevertheless, much is still unknown about the Governor’s plan. The Kean Miller State and Local Tax Team will provide additional information when more is known.

For questions or additional information, please contact: Christopher J. Dicharry at (225) 382-3492, Jaye Calhoun at (504) 293-5936, Phyllis Sims at (225) 389-3717, Jason Brown at (225) 389-3733, Angela Adolph at (225) 382-3437, or Willie Kolarik at (225) 382-3441.

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[1] According to Governor Edwards, there are approximately 414,000 businesses in the state. Of those businesses, 389,000 “make less than $1.5 million annually” and “would be assessed a flat $250 tax, rather than the calculation for gross receipts.” Gov. Edwards Unveils Reforms to Stabilize Louisiana’s Budget.

[2] La. R.S. § 47:302.

[3] La. R.S. § 47:321.

[4] La. R.S. § 47:331.

[5] La. R.S. § 51:1286.

[6] La. R.S. § 47:321.1.

[7] Gov. Edwards Unveils Reforms to Stabilize Louisiana’s Budget.

[8] When modeling the impact of intercompany transactions, a taxpayer should also consider whether the purchaser is located in a foreign trade zone because, under current corporation income tax sourcing rules, a taxpayer selling corporeal movable property to a customer who receives the property in a foreign trade zone may exclude the sales from the numerator of its sales factor.