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State Taxation of Executive Compensation “Touching All the Bases”

Presented by: Christopher J. Sullivan Paul Buchman Rath, Young and Pignatelli, P.C. Tyco International (U.S.), Inc. One Capital Plaza 301 Yamato Road Concord, N.H. 03302 Boca Raton, Fl. 33431 (603) 410-4324 (561) 322-7840 cjs@rathlaw.com pbuchman@tyco.com. State Taxation

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State Taxation of Executive Compensation “Touching All the Bases”

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  1. Presented by: Christopher J. Sullivan Paul Buchman Rath, Young and Pignatelli, P.C. Tyco International (U.S.), Inc. One Capital Plaza 301 Yamato Road Concord, N.H. 03302 Boca Raton, Fl. 33431 (603) 410-4324 (561) 322-7840 cjs@rathlaw.compbuchman@tyco.com State Taxation of Executive Compensation “Touching All the Bases”

  2. Play Ball!!! • Fundamentally, this breakout is about the Personal Income Tax Obligations of Executives/Employees • However, this is also an Employer Issue due to Employer Withholding Requirements • Increasingly, corporate tax departments are being asked to deal with these issues to design pro-active solutions and to manage withholding audits and personal audits

  3. Executive Comp BaseballOur Schedule • America’s Game is Growing • Spring Training Issues—The Basics • Resident Versus Non-Resident Taxation • Regular Season Issues—The Long Season • Income Sourcing Challenges • Income Forms Challenges (Wages versus Other Compensation) • Issues for the Manager—All Season Long • Appeals to the Umpires • Appeals to the Commissioner

  4. America’s Game is Growing • Increased State Revenue Needs • Increased Political Attractiveness of Exporting Tax to Non-Residents • Increased Multi-State Nature of Business • Increased Employee Travel • Increased Service Economy • Increased Technology (e.g. telecommuting) • Increased Forms of Executive Compensation • Increased Executive Income • Increased Corporate Regulatory Requirements (SOX)

  5. Spring TrainingThe Basic Takeaway • Residents of a state generally taxed on entire income • Generally, there are two types of residents • Domiciled in the state • Statutory Resident of the state • Non-residents of a state are generally only taxed on income properly sourced to state • Usually defined as anyone other than a resident

  6. Spring TrainingThe First Ground BallLike Paul Buchman, is Derek Jeter a Florida Resident?

  7. Spring Training Grounders • Specifics of Derek Jeter Case in New York • 2001 through 2003 Tax Years at Issue • Jeter--Claims Florida residency since 1994 • (Note: Jeter’s Yankees Debut—May 29, 1995) • Jeter--Filed New York Non-Resident Tax Returns for the Tax Years • Largely no dispute over baseball salary because it is New York source income • Dispute over other income—e.g. endorsement income, personal appearance income, signing bonus.

  8. Spring Training Grounders • Specifics of Derek Jeter Case in New York • Burden on NYS to demonstrate New York residency because it concedes Jeter was a Florida resident prior to 2001. Burden on party asserting change. • NY claims Jeter is a NY Resident for Tax Years • Ownership of an Apartment at Trump Towers (10/01) • Personal Items Near and Dear Kept in NY • Community Involvement in non-Florida jurisdictions • Business Ties • Public Statements Regarding Love for New York • KEY POINT: NYS attempting to show Jeter is domiciled in NY, because likely much tougher case under statutory resident criteria (183 day rule).

  9. Spring Training GroundersDomicile • Virtually Every State With an Income Tax Taxes Entire Income of Those “Domiciled” in State • Note: No broad based income tax in AK, FL, NH, NV, SD, TN, TX, WA, WY • Basic Agreement Among States—Domicile is the place where a person has his true fixed and permanent home or principal establishment to which, whenever he is absent, he has the intention of returning • Domicile is generally fact and intent driven • Union of act and intent, actions speak louder than words • Domicile, once attained, is generally not lost by absence since intent to return is critical. • Generally only one domicile (but can be statutory resident in more than one state).

  10. Spring Training GroundersCommon Domicile Factors • Property ownership and residence • Location of Bank Accounts • Qualification for unemployment insurance • State of previously filed tax returns • State of Voting • State of Driver’s License • State of Vehicle Registration • Professional License Registration • Location of Memberships and Affiliations • State of Will Execution

  11. Spring Training Fly BallsStatutory Resident • Much more variation among statutory definition of resident • Common Principles • Permanent Place of Abode • Time Spent in State—183 days/6 months is most common • Hawaii—200 • Idaho—270 • New Mexico--185 • “Other than a temporary or transitory purpose” • Importance of and/or in statutory tests • Risk of Double Taxation—taxpayers may meet definition of resident in more than one state • American Payroll Association Testimony Helpful

  12. Spring Training Fly BallsStatutory Resident • California--Resident includes: (i) every individual in the state for other than a temporary or transitory purpose and; (ii) every individual domiciled in the state who is outside the state for temporary or transitory purposes. Cal. Rev. & Tax Code 17014(a). Residence is presumed for those who spend more than 9 months in the state. Cal. Rev. & Tax Code 17016. • New York--Resident includes generally individuals: (i) domiciled in the state and (ii) not domiciled in the state but who maintain a permanent place of abode in the state and spend more than 183 days out of the year in the state. N.Y. Tax Law sec. 605(b)(1).

  13. Regular Season IssuesNon-Resident Taxation • States may generally tax the income of non-residents when income is earned in that state • California—Tax on income of individual non-residents “derived from sources in [California]” • New York—“derived from or connected with New York sources” • Risk of double taxation—all income taxed in state of residence and sourced income taxed in state of non-residence

  14. Regular Season IssuesCredits • Credits alleviate some double taxation issues but likely not constitutionally required and are matter of legislative grace • Credits don’t help Buchman (FL and NJ) • All States with an income tax generally permit residents to take credit for taxes paid to other states • Selected states that provide credits for non-residents for taxes paid to other states • California, Indiana, Michigan, Minnesota, Oregon, Virginia, West Virginia • Selected states that do not provide credits for non-residents • Connecticut, Illinois, Maryland, Massachusetts, Missouri, New Jersey, New York, Ohio, Pennsylvania

  15. Regular Season IssuesNon-Resident Taxation(How the Game is Played) • Typical Fact Pattern: Individual lives in NJ, and regularly works in the company’s NY office and travels / works at the company’s offices in various states – CT, CA, IL & GA • The individual is subject to personal income tax in NY as a nonresident • The individual is also subject to tax in NJ – his/her state of domicile • The individual may also be subject to PIT in the other states • Generally, the individual allocates income to the nonresident state based on services performed within and without that state • Many states employ “days in/days out” test to allocate income • Telecommuting and “Convenience of the Employer” • Note: Current appeal to the Commissioner on these issues • H.R. 1360—Telecommuter Tax Fairness Act of 2007

  16. Regular Season Issues Non-Resident Taxation • Typical Executive Income • Wages / Bonus • Stock options • Restricted Stock • Deferred Income • Consistent Issue Among Each Category of Income • When was the income recognized for federal purposes? • When did the income vest? • How is the income allocated?

  17. Regular Season Issues Non-Resident Taxation Wages / Bonus • Income earned wholly in the work state • All wage income fully reportable to work state as non-resident income • Income reportable to domicile state – with credit for taxes paid to other jurisdictions if applicable • Income earned partly within and without the state • Allocation of wages based on days worked within and without • Record keeping • Calendar • Transportation receipts • Credit card receipts • Withholding tax requirements

  18. Regular Season Issues Non-Resident Taxation Stock Options • Consistent issues among states • What portion of the income / gain can the nonresident state tax as compensation? • How is the income allocated? • When does the recognition event occur – income for federal purposes? • New York Guidance • Michealson, 67 NY 2d 579 (1986) – Established the rule for determining the portion of the option income that is NY based compensation. • TSB-M-95(3)I (1995) – Explains allocation method for NY option compensation • Stuckless, 819319, NY Tax Appeals Tribunal, (8/17/2006) – Allows alternative allocation method • TSB-M-06(7)I (2006) – Applies to tax year 2005 and prior • NYS Regulation: NYCRR 132.24 (Revised 12-27-06) • TSB-M-07(7)I (2007) – Interprets NYCRR 132.4 • Significant Option Events: Grant → Vest /Exercise → Sale

  19. Regular Season Issues Non-Resident Taxation Nonstatutory Stock Options • Example: Nonresident employee lives in CT and works in NY - also performs services outside NY for employer • Option Granted in 2006 at $15 / share and vests in 3 years • Option Vests in 2009 and employee exercises NSO - the FMV of stock at the date of exercise is $25 / share • Sale in 2010 employee sells the stock for $50 / share • Nonresident Employee’s “workday fraction” – the percentage of time worked in NY is 60% from 2006 through 2009 • Employee’s workday fraction for tax year 2010 is 75%. • NY Compensation from the nonstatutory stock option: • $10 / share is ordinary compensatory income subject to allocation – (difference between the grant price of $15 and FMV of $25 at exercise date) • The remaining $25 /share of gain / further appreciation after the exercise is not subject to tax in NY • Allocation Period • Percentage of time worked in NY beginning with the date the option was granted and ending with date the option vested – can span multiple tax years • Amount subject to NY Tax: $6 / share is ($10 of compensation X workday fraction of 60% for 2006–09) • Services performed after the shares are exercisable are not taken into account for allocating option income

  20. Regular Season IssuesNon-Resident TaxationRestricted Stock • Restricted Stock: A grant of company stock in which the recipient's rights in the stock are restricted until the shares vest • In general, the value of a restricted stock award is taxable as compensation for federal income tax purposes in the year the rights of the beneficial interest in the stock are substantially vested • If the IRC Sec. 83(b) election is made: • The amount of Compensation is the amount recognized for federal purposes • The allocation period is the same that applies to wages • If no 83(b) election is made: • The amount of compensation is the FMV of the stock at the time it vests and is recognized for federal purposes • The allocation period is the period of time beginning with the date the stock was received and ending with the earliest of: (1) the date the stock was substantially vested (transferable or not subject to substantial risk of forfeiture); (2) the date the individual's services terminated; or (3) the date the stock was sold • Similar to statutory stock options the allocation period may span multiple years

  21. Regular Season Issues Non-Resident TaxationDeferred Income • Generally under a deferred compensation plan such as a supplemental executive retirement plan– payments are made in a lump-sum upon retirement or are paid as an annuity • NY state has ruled that non-residents are not subject to tax on payments from such a plan– TSB-A-00(6)I (9/6/2000)

  22. Issues for the ManagerBig Picture Strategy • Risks to Companies—Sarbanes-Oxley 404 • Certification that procedures in place to comply with applicable laws and regulations, including state tax rules. • Risks to Companies—Withholding Audits • Risks to Companies—Employee Satisfaction • Pro-Active Solutions • Approach bigger states—NY, IL, CA

  23. Issues for the ManagerWho’s in the Lineup? • Employer Withholding Requirements on Non-Resident Taxation • Some States Employ First Dollar Approach • Some States Require Withholding After Certain Days Threshold Az. (60), Ha. (60), Me. (10), NM. (15) • Earnings Threshold—Offers very little relief (often $5000 or less) • Generally, employee and employer obligations same • But NY, employer withholding only triggered after 14 days in-state even though employee is obligated immediately for NY tax

  24. Issues for the ManagerThe Nonresident Income Tax Audit • Audit will focus on three key items • Income • Allocation of income to nonresident state • Withholding • Individual must document allocation • Travel log • Credit card receipts • Calendar

  25. Issues for the ManagerThe Nonresident Income Tax Audit • Company Issues • Did the company properly withhold? • Company may rely on withholding information provided by employee • Proactive Withholding Tax Policy • Avoid penalties • Develop company-wide withholding policy • Enter into voluntary withholding agreements with states • Threshold to initiate withholding based on days worked in the state or based upon dollar amount

  26. Appeals to the UmpiresBall Four--Take Your Base! • Some states have established cooperative agreements to simplify non-resident taxation and withholding • Frequently, employee must file certificate declaring non-resident status in reciprocal state.

  27. Appeals to the UmpiresStrike Three!!! • Major states with no reciprocal agreements despite personal income tax • California • New York • Connecticut • Missouri • Massachusetts • Oregon

  28. Appeals to the Commissioner • Patchwork of state laws and practices, increased liabilities and enforcement, and administrative headaches regularly leads to calls for Congress to use its commerce-regulating power to create more uniform rules

  29. Appeals to the CommissionerCongressional Intervention • Relief for Certain Employees • Members of Congress—Taxed only in state of residence. Surprising??? • Interstate Transportation Employees—Railroad employees (49 U.S.C. § 11502), motor carrier employees (49 U.S.C. § 14503), and merchant mariner employees (46 U.S.C. § 11108 (b)) can generally only be taxed in their states of residence

  30. Appeals to the CommissionerCongressional Intervention • Relief on Forms of Income • Retirement Income--No state taxation of retirement income of an individual who is not a resident or domiciliary of the state. 4 U.S.C. § 114. (P.L. 104-95) • Retirement Income--Includes a prohibition on taxing retirement income paid by a partnership to a nonresident retired partner under any written plan, program, or arrangement in effect immediately before retirement begins. 4 U.S.C. § 114 (P.L. 109-264) • Clarifies employee versus partner position advanced by NY. • Sullivan colleague Stan Arnold (former NH DRA Commissioner and FTA President testifies in favor of this legislation)

  31. Appeals to the CommissionerA Whole New Game? • H.R. 3359—The Mobile Workforce State Income Tax Fairness and Simplification Act of 2007 • Purpose—To limit the authority of States and localities to tax certain income of employees for employment duties performed in other States and localities • Introduced in August of 2007 • House Hearing held in November 2007 • COST—Supports as Introduced • American Payroll Association—Supports as Introduced • FTA—Opposed as Introduced • Prospects for Passage in 2008??

  32. Appeals to the CommissionerA Whole New Game? • H.R. 3359 creates rule to limit taxation of wages or other remuneration to state or locality of the employee’s residence unless the employee is physically present performing duties in another state for more than 60 days during the calendar year in which income is taxed • Day is defined as more than 50 percent of the employee’s duties for such day • Wages or other remuneration defined by state law • Professional Athletes, Professional Entertainers, and Certain Public Figures not protected • Buchman helped but Jeter is not

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