Margin tax suggestions from the Texas Association of Business
The Texas Association of Business held a meeting here in Austin yesterday. Billed as the TAB Tax Summit, the group used the event to announce their own recommendations for changes to the margin tax.
TSCPA pal Harvey Kronberg posted the following report to his Quorum Report. Consider a subscription to his fine publication if this kind of behind-the-scenes reporting is meaningful to you.
TAB LAYS OUT PROPOSED CHANGES TO MARGINS TAX
Pyramiding, caps, federal contracting on the table for discussion.The Texas Association of Business laid out a number of resolutions this morning intended to tighten up the new margins tax and make it more equitable to business.
What one might have hoped to take from this forum – the temperature of the business community – was difficult to gauge from today’s TAB Tax Summit at the Hyatt Regency. The room was packed this morning, but the majority of attendees were House and Senate staff members, along with scattered members of various major business industries and a handful of interested state legislators.
TAB members will vote on the proposals. Attorney Jennifer Patterson of McGinnis Lochridge & Kilgore presented an overview of the margins tax and the improvements suggested by TAB. Among the points that Patterson initially made about the margins tax: The first year’s payment is "backwards looking," based on 2007 tax returns. That means it may be too late to make adjustments for those businesses filing on a calendar year, rather than the fiscal year.
Patterson also walked through some of the specifics: those who are expected to report; implications of combined reporting; and the E-Z computation method intended to benefit small businesses that will not be taking a cost of goods or compensation deduction. The first annual margin tax return is due on May 15, based on the prior year.
TAB has laid out a number of proposals on the margins tax that will be voted on by TAB membership. Patterson outlined pluses and minuses on these positions:
Exclude all flow-through funds from total revenue. Lawmakers attempted a basic, if somewhat limited, attempt to limit taxation of flow-through funds in order to avoid the "pyramiding" effect of taxing the same good more than once.
TAB wants to consider some type of blanket language for all flow-through funds, which could range from settlements paid out to clients to payments to subcontractors to simple client settlements. The current bill takes a "laundry list" approach to flow-through exceptions. Whether language can be crafted to address all flow-through issues could be "a challenging drafting problem," Patterson told the audience at this morning’s forum.
Raise small business exemption from $300,000 to $1 million in total revenue. Raising the cap on exemptions – those businesses up to $300,000 now owe no margins tax – could encourage small business growth, Patterson said. It also acknowledges that revenue doesn’t always correlate to business size or profitability. For instance, you could be attempting to sell one expensive mink coat or a hundred pieces of costume jewelry.
What lawmakers likely were trying to do with the tax – especially through the option of either cost of goods or compensation – was to attempt to tap into a business’ ability to pay the tax, how profitable that business is or recognize that some businesses may be using more state services than their peers, Patterson said.
Raising the cap disassociates small businesses from the tax system while leaving their bigger brethren to pay the burden. Yes, a higher cap could be a goodwill gesture, but it also implies that the tax is implicitly bad, Patterson said. A sound tax system – in Texas or anywhere else -- should make sense and mirrors the economy. To exclude additional businesses implies the tax doesn’t work. "If we say that the tax doesn’t work for small business, aren’t we saying this tax doesn’t work?" asked Patterson.
Allow small businesses to include independent contractors in compensation. Patterson said she could think of no good reason to exclude independent contractors from the totals combined to calculate the compensation deduction. One argument that has been presented is that businesses would go ahead and hire people to avoid the margins tax. Patterson points out, however, incurs federal taxes that far outweigh the margins tax. The advantage is that the addition of independent contractors in the compensation exemption puts the compensation exemption on a more even playing field with cost of goods.
Create a 10-year business loss carry-forward. The goal is a noble one – recognizing that businesses that run in the red should not be subject to a tax – but it runs counter to the concept of a margins tax, Patterson said. It’s a mismatch between a negative net income and a positive gross income. A margins tax is based on a business having a margin of profit. That margin is what is being taxed.
The carry-over concept, while good in concept, is outside the scope of what the tax is intended to do. If the goal was to give tax relief to an unprofitable business, then the easiest way to do that would be to exclude or exempt businesses having a federal income tax loss. Of course, that also could lead to gaming the system, Patterson said. Such a proposal would require additional safeguards be considered.
Allow federal contractors to subtract the cost for the sale of goods or services to the federal government from the taxable margin. This may be good economic development policy, but it’s not so good as tax policy, Patterson said. It would allow taxpayers to exclude goods, even though the taxpayer does not own the goods. It also provides deductions for the cost of services, which would be a departure from the margins tax. This would clearly give a benefit to capital-intensive industry, but there’s nothing magical in being a contractor for the federal government, Patterson said. It provides an additional kind of benefit to federal contractors.
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