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2011 Mississippi Tax Update July 15, 2011. Mark M. Hosemann Brunini, Grantham, Grower & Hewes, PLLC Jackson, Mississippi. Income and Franchise Tax. Legislative Developments. Human Pharmaceutical Products Contributions . S.B. 3097, Reg. Sess. (Miss. 2011).

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2011 Mississippi Tax Update July 15, 2011

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    1. 2011 Mississippi Tax UpdateJuly 15, 2011 Mark M. Hosemann Brunini, Grantham, Grower & Hewes, PLLC Jackson, Mississippi

    2. Income and FranchiseTax Legislative Developments

    3. Human Pharmaceutical Products Contributions. S.B. 3097, Reg. Sess. (Miss. 2011). • For a charitable contribution by a “major supplier” of human pharmaceutical products in excess of $250 million, the federal charitable contribution limitation will be imposed, but MS income can not be reduced below zero • Major Supplier- $100M of pharmaceutical products shipped into MS and receiving funding from the MS Industry Incentive Financing Revolving Fund

    4. Human Pharmaceutical Products Contributions. S.B. 3097, Reg. Sess. (Miss. 2011). • Also provides that for multi-state corporations that are major suppliers, receipts from sales of human pharmaceuticals to MS distribution facilities will not be included in MS receipts for the franchise tax apportionment ratio calculation

    5. Rural Economic Development Credit. S.B. 2921, Reg. Sess. (Miss. 2011). • Reenacts the MS Rural Economic Development Assistance Program (RED) and the income tax credits associated therewith • Extended through October 1, 2015

    6. Mississippi Motion Picture Incentives Act. H.B. 1161, Reg. Sess. (Miss. 2011). • A motion picture production company that expends at least $50,000 in base investment, payroll, or both is entitled to a rebate of 25% of the base investment. • In addition, a payroll rebate for 30% of the payroll paid to resident employees whose wages are subject to Mississippi withholding was approved, and a payroll rebate for 25% of the payroll paid to nonresident employees is available pending final approval on July 1, 2014 at the earliest.

    7. Historic Structure Rehabilitation Tax Credit. H.B. 754 & H.B. 1311, 2011 Reg. Sess. (Miss. 2011). • Extends existing credit to December 31, 2013 • If the income tax credit allowed for the costs incurred in the rehabilitation of certified historic structures exceed the taxpayer’s tax liability for the year and the amount of the tax credit exceeds $250,000, the taxpayer may elect to claim a refund in the amount of 75% of the excess credit in lieu of the ten-year carryforward of the credit. The election must be made in the year in which the rehabilitated property is placed in service. Refunds will be paid in equal installments over a two-year period. The law also limits the aggregate amount of credits that may be awarded to $60,000,000.

    8. Cargo Income Tax Credit Extended. S.B. 2922, 2011 Reg. Sess. (Miss. 2011). • Removes the repealer on the income tax credit for port charges for cargo imported into the state. The credit for export charges was extended in 2010 through 2012.

    9. Early Payment of Withholding Tax. H.B. 1059, 2010 Reg. Sess. (Miss. 2010). • Delays until July 1, 2012 an increase in the amount of average monthly withholding liability that triggers the requirement for early payment of withholding tax liability by certain taxpayers • Increases threshold to $50,000 from $20,000

    10. Tax Return Confidentiality. H.B. 704, 2010 Reg. Sess. (Miss. 2010). • Tax return information must be maintained in confidential manner unless disclosure is required by a court order • DOR can release income tax information to Dept. of Human Services for individuals who are delinquent on child support

    11. DOR confidentiality of information. 2010 S.B. 3082, Reg. Sess. (Miss. 2010). • Authorizes the DOR to enter into confidentiality agreements with officers and employees of the Mississippi Development Authority. Such officers and employees would be subject to the same restrictions on the release of taxpayer information that apply to the DOR.

    12. Conversion of Traditional IRA. H.B. 1637, Reg. Sess. (Miss. 2010). • Excludes income amounts converted from a traditional IRS to a Roth IRA from the definition of “gross income” • Exclusion is also available to a spouse or other beneficiary at the death of the primary retiree

    13. Derivative Tax Liability. S.B. 2967, Reg. Sess. (Miss. 2010). • Liability of certain owners or members of corporations or LLCs for income withholding tax and sales tax is derivative of the entity • The 3-year assessment period for the derivative liability doesn’t begin to run until the entity’s liability becomes final

    14. Individual Income Tax Payable in Installments. S.B. 2753, Reg. Sess. (Miss. 2010). • If state income tax liability is not in excess of $3000 and the taxpayer has entered into an installment agreement with the IRS for federal taxes, state income taxes can be paid in installments over no more than 60 months

    15. Tax Return Preparer Penalty. H.B. 1462, Reg. Sess. (Miss. 2010). • Mandatory penalty for grossly negligent preparation of an income tax return is now discretionary • Commissioner of DOR assess these penalties and handles collections just as with the assessment and collection of income taxes

    16. Exemptions for clean energy and aerospace enterprises. H.B. 1701, Reg. Sess. (Miss. 2010). • Grants a 10 year franchise and income tax exemption and certain sales and use tax exemptions to manufacturers of systems or components used in the generation of clean energy or the aerospace industry or those that operate data centers or provide research and development or job training services for such qualifying industries.

    17. Income and FranchiseTax Judicial Developments

    18. Buffington v. Mississippi State Tax Commission • MSSC addressed § 27-7-49, which provides that the DOR may issue an assessment for additional state income tax when the IRS increases a taxpayer’s reported taxable income, but that such an assessment may not be issued “after three (3) years from the date the Internal Revenue Service disposes of the tax liability in question.” • Taxpayer argued that the IRS “disposes of the tax liability in question” on the date a written settlement between the IRS and the taxpayer is executed. In other words, the taxpayer viewed the execution of a Form 4549 and the payment of the liability to constitute disposition of the matter.

    19. Buffington v. Mississippi State Tax Commission (cont.) • MSSC held that the IRS “disposes of the tax liability in question,” for purposes of §27-7-49, on the date the DOR receives notice from the IRS via Form 3210 that the taxpayer’s reported taxable income has been changed. • Thus, the three-year period for assessing additional state income tax as a result of an increase in the taxpayer’s taxable income by the IRS begins running upon receipt of the Form 3210 by the Mississippi Department of Revenue from the IRS.

    20. Davis v. Mississippi State Tax Commission • Taxpayer died having failed to pay federal or state taxes from 1997-2004 • IRS assessed federal tax liability against the estate. MS State Tax Commission filed notices of tax liens in Lee County Chancery Court. • Chancery Court gave the state priority based on § 27-7-55, which gives an enrolled notice of tax lien the status of a judgment • 26 USC §6323(a)- a judgment lien creditor has priority over a federal tax lien

    21. Davis v. Mississippi State Tax Commission (cont.) • MSSC overturned the Chancery Court • Ruled that in spite of the language of § 27-7-55, the Department of Revenue is not a “judgment lien credit” within the meaning of the federal tax law giving priority to judgment liens over federal tax liens because the tax lien arose as a result of an administrative determination rather than a court judgment. Therefore the IRS had priority over the DOR’s tax claim.

    22. Income and FranchiseTax Administrative Developments

    23. Taxability of Gulf Oil Spill Payments • DOR issued notice that payments received from BP are included in gross income and should be reported like the lost business income would have been • Payments for damaged or destroyed property are not included in gross income unless the payment exceeds the adjusted basis of the property

    24. Gambling Winnings • DOR issued a reminder that gambling winnings reported on a W2G, 1099 or other informational return from MS casinos are subject to 3% nonrefundable income tax withheld by the casino at the time of payout • Winnings from MS casinos are not included in MS income • A nonresident with only MS casino winnings or losses should not file a MS return

    25. Sales and Use Tax Legislative Developments

    26. Mississippi Motion Picture Incentive Act. H.B. 1161, 2011 Reg. Sess. (Miss. 2011). • Repeals the sales tax exemption under Section 27-65-101(bb) for sales of production items used in the production of a motion picture. • A new exemption for the sale of supplies and equipment sold to an IRC §501(c)(3) host organization coordinating a professional golf tournament to be played in Mississippi is allowed effective March 24, 2011.

    27. Municipal Special Sales Tax. S.B. 2839, 2011 Reg. Sess. (Miss. 2011). • Revises § 27-65-241 which authorizes the levy of a municipal special sales tax in municipalities with a population over 150,000 • Revenue collected pursuant to the tax must be used to pay the costs of road and street repair, reconstruction and resurfacing projects based on traffic patterns, need and usage, and for the costs of water, sewer and drainage projects. • A municipality may not hold an election with regard to such a special sales tax more than twice. • The Department of Revenue can retain 1% of the proceeds of the tax to defray the costs to the Department for collection of the special tax.

    28. Tourism Project Sales Tax Incentive Program. H.B. 1107, 2011 Reg. Sess. (Miss. 2011). • Revised the definition of “Tourism Project” for purposes of the Tourism Project Sales Tax Incentive Program to include hotels having a minimum of 25 guest rooms or suites, a minimum private investment of $15,000,000 and $200,000 per guest room or suite, and having restaurants, spas and other amenities as determined by the MDA. • “Tourism Project” now also includes tourism attractions located within Entertainment Districts with live entertainment 3 nights per week and seating for at least 40.

    29. Tax on Refinery Machinery and Refinery Construction Activity. H.B. 598, 2011 Reg. Sess. (Miss. 2011). • Deletes the repealer of a provision which levies a tax on the sale of manufacturing or processing machinery installed or used as a refinery in Mississippi and on construction activities performed at or in regard to such a refinery. • The law also requires the owner of the refinery holding a direct pay permit issued by the DOR to furnish the permit to the seller of the machinery or the provider of the construction services, as a result of which the seller or provider of construction services is relieved of the duty to collect the tax and the owner of the refinery will pay the tax.

    30. Tax on Refinery Machinery and Refinery Construction Activity. H.B. 1684, 2010 Reg. Sess. (Miss. 2010). • 1.5% on the gross proceeds of sales of manufacturing or processing machinery to be installed or used at a refinery • 3.5% of 103.5% of the total contract price or compensation paid for the performance of construction activity at a refinery

    31. Emergency Telephone Service Charge. S.B. 2938, 2010 Reg. Sess. (Miss. 2010). • Imposes a $1.00 charge on all retail prepaid wireless service transactions in MS for an emergency telephone service to be collected and remitted by the provider along with sales and use tax • The provider can take 2% of the amount collected as an administrative deduction • Collect the charge and remit it to the DOR by the 20th of the following month • County Boards of Supervisors can impose an additional $1.00 charge on residential users and $2.00 on businesses for Voice over Internet Protocol telephone services

    32. Farmers Market Exemption. H.B. 1566, 2010 Reg. Sess. (Miss. 2010). • Adds to the list of sales tax exempt agricultural products food products that are grown, made or processed in MS and sold at farmers markets that have been certified by the MS Department of Agriculture

    33. Sales and Use Tax Administrative Developments

    34. 2011 Sales Tax Holiday. • DOR issued a notice reminding taxpayers that the state’s third sales tax holiday will be Friday, July 29, 2011 through midnight on Saturday, July 30, 2011. • Clothing and footwear items under $100 per item are exempt from sales tax • Accessories, jewelry, backpacks, cleats, sporting goods, and school supplies are not exempt

    35. Notice to Pet Breeders. • DOR issued Notice 72-11-001 to clarify for pet breeders that the exemption from sales tax for sales of livestock doesn’t not include dogs, cats, or other domestic animals usually kept as pets • Those who do not hold themselves out as breeders or breed pets infrequently are not required to register to collect sales tax • Selling pets from one litter no more than once in a 2-year period is considered infrequent

    36. Wrecking and Towing Services. • DOR amended Miss. Admin. Code 35.IV.04.01 to provide that wrecker or towing services, when not provided in conjunction with any other taxable services (such as repairs or storage) are not subject to sales tax • If other services are provided in conjunction with the towing service, then the entire value of the towing and the other services combined is subject to sales tax

    37. Property Taxes Legislative Developments

    38. Tax Sales of Property in a Public Improvement District. S.B. 2938, 2011 Reg. Sess. (Miss. 2011). • If property in a public improvement district is to be struck off to the state following an unsuccessful tax sale pursuant to § 27-41-59, the county tax collector may offer the property for sale for a second time. • If there is no purchaser of the property on the second attempted sale, the property shall pass to the state as if no second sale occurred. If the property is sold at the second sale, the property may be redeemed at any time within two years after the date of the second sale in the manner provided in § 27-45-3.

    39. Publication of School Boards’ Annual Ad Valorem Tax Assessment. S.B. 2547, 2011 Reg. Sess. (Miss. 2011). • School Boards are not required to publish an annual ad valorem tax assessment in the newspaper if there is no increase in the ad valorem tax effort in dollars that has been proposed.

    40. Costs for cleaning certain property to be added to tax bills. H.B. 1412, 2010 Reg. Sess. (Miss. 2010). • Authorizes costs and penalties assessed by a municipal governing authority to clean private property to be added to ad valorem tax bills and to be collected by the tax collector. The tax collector is authorized to sell the property when such costs and penalty are not paid.

    41. Property Taxes Judicial Developments

    42. City of Jackson v. Rebuild America, Miss. Ct. App., Dkt. No. 2008-CA-02121-COA (Miss. App. 2011). • Property was conveyed by the City of Jackson to a community development corporation by a quitclaim deed with a possibility of reverter for construction of low and moderate income housing. The corporation failed to meet the conditions set forth in the quitclaim deed and also failed to pay taxes in 2004. • The property was sold in a tax sale in 2005, with proper statutory notice being given to the corporation, but no notice was given to the City of Jackson. The tax sale was voided because the City had a reversionary interest in the property which was sufficient to require that statutory notice of the right of redemption be given to the City.

    43. Holly Springs Realty Group, LLC v. BancorpSouth Bank, Miss. Ct. App., Dkt. No. 2009-CA-00923-COA (Miss. App. 2010). • Tax sale of a condominium to a purchaser was void as to the bank that held a mortgage on the property because the chancery court clerk failed to give notice to the bank after the tax sale and before the expiration of the redemption period. • The tax sale being void, the bank’s mortgage lien was unaffected , and the bank was entitled to foreclose on the property but had to reimburse the purchaser for the real property taxes the purchaser paid in the tax sale.

    44. Fidelity & Guaranty Insurance Co. v. Blount, Miss. S. Ct., Dkt. No. 2008-CA-01931-SCT (Miss. 2011). • The substantive and procedural due process rights of several surety companies were not violated when the State Tax Commission failed to give notice of tax audits and the resulting assessments of contractors tax against several construction companies that were the principals of the surety companies. • The surety companies were deemed to not be taxpayers contemplated under Section 27-65-37 that would be entitled to notice of assessments. • The taxpayer entitled to notice of an assessment is the person liable for tax to the state or who has paid tax to the state, or the person required to obtain a sales tax permit before engaging in business in the state. The construction companies, not their surety companies, were the taxpayers here and they were afforded the due process required by law. The sureties were given proper notice of their principals failure to pay pursuant to Section 27-65-57 and proper demand was made on them to pay the unpaid taxes, including damages, penalties and interest, under their surety bonds.

    45. 3545 Mitchell Road, LLC v. Bd. Of Supervisors of Lee County, Miss., Dkt No. 2009-CT-00292-SCT (Miss. 2010). • The Board of Supervisors reassessed affordable rental housing complexes because of a failure on the part of the taxpayers to submit proper documentation of net operating income which would entitle the taxpayers to a more favorable assessment formula. • The more favorable assessment formula was mistakenly still initially used despite the taxpayer’s failure to submit the proper documentation

    46. 3545 Mitchell Road, LLC v. Bd. Of Supervisors of Lee County, Miss., Dkt No. 2009-CT-00292-SCT (Miss. 2010) (cont.). • The Board of Supervisors subsequently reassessed the taxpayers using the standard assessment formula, drastically increasing the ad valorem property taxes owed by the taxpayers. • MSSC held that § 27-35-143(11) applies to authorize a reassessment when property has been incorrectly categorized. The Supreme Court found no evidence that the taxpayers’ property was incorrectly categorized as “affordable rental housing” so the reassessment was not authorized.

    47. Property Taxes Administrative Developments

    48. Reclassification of Property Does Not Result in Erroneously Paid Taxes. • § 27-73-7 authorizes a refund following a reassessment in the case of “erroneously” paid taxes. • The Attorney General issued an opinion in a situation where a property’s classification unit was modified from Class A to C+ due to architectural and landscaping factors. The property was reassessed and valued lower than in prior years. The taxpayer inquired as to whether the resulting decrease in assessment constituted an error in assessment that would authorize a refund of the prior year’s taxes paid in excess of those due under the current decreased assessment. • The Attorney General opined that such a classification which led to a decreased value and a lower assessment did not result in the authorization of a refund for prior year’s taxes paid at the higher assessed value.

    49. City-owned property leased to a private non-profit is taxable. • Attorney General opined that a private leasehold interest in city-owned property is not exempt from taxation unless expressly authorized or provided by law. • Specifically, when land owned by the city is leased to a nonprofit operator for use as a golf course, the leasehold interest is taxable by the county. • In assessing the value of the leasehold interest, the tax assessor must determine the true value of the leasehold, based upon the current use of the property.

    50. Past due ad valorem taxes run with the land. • The Attorney General opined that past due ad valorem taxes assessed on real and personal property run with the land and survive foreclosure.