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David Pope

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On September 27, 2018, the New Jersey Senate and General Assembly passed legislation amending certain provisions of the New Jersey Corporation Business Tax (“CBT”) reform bill that was enacted earlier this year (“Technical Amendments”). In July, Governor Phil Murphy and the New Jersey Legislature enacted a $37.4 billion budget package (the “Budget Bill”) that implements sweeping changes to the CBT.  Among these changes are mandatory unitary combined reporting, market-based sourcing, and a new four-year surtax on corporations with over $1 million of allocated taxable net income. The Technical Amendments, which are awaiting Governor Murphy’s signature, make several changes to the Budget Bill.  A summary of the most noteworthy provisions contained in the Budget Bill and Technical Amendments is below.

The physical presence standard is no more.  In a 5-4 decision issued this morning, the U.S. Supreme Court reversed its own precedent that, for over fifty years, provided an in-state physical presence by a retailer was a prerequisite for the constitutional imposition of a state sales or use tax collection obligation.  See South Dakota v. Wayfair, Inc., No. 17-494 (U.S. Jun. 21, 2018), rev’g Quill Corp. v. North Dakota, 504 U.S. 298 (1992) and National Bellas Hess Inc. v. Illinois, 386 U.S. 753 (1967).

Baker McKenzie attended the U.S. Supreme Court’s oral arguments yesterday in South Dakota v. Wayfair, Docket No. 17-494.  At issue in the case is whether the Court should abrogate the physical presence nexus standard that it first articulated in National Bellas Hess v. Dep’t of Revenue, 386 U.S. 753 (1967), and later affirmed in Quill Corp. v. North Dakota, 504 U.S. 298 (1992).  The Court’s decision could have a profound impact on sales and use tax nexus in the United States by altering the limitations currently imposed on a state’s ability to require out-of-state retailers to collect such tax.

On February 15, 2018, New York Governor Andrew M. Cuomo released 30-day amendments to the State’s FY 2019 Executive Budget. The amendments contain several noteworthy tax provisions that, if enacted, would amount to a sweeping overhaul to portions of the New York Tax Law and could benefit many New York taxpayers.  Included in the amendments are provisions that would (1) create an optional employer compensation expense tax, (2) establish a state-run charitable trust fund for the benefit of New Yorkers, and (3) decouple from several Internal Revenue Code provisions.  While a proposal to pursue an unincorporated business tax was included in the “Summary of Proposed Tax Reforms” released by the Governor’s office, details of the proposal were not included in the amendments.  The revenue proposals contained in the 30-day amendments are largely intended to address the adverse impact of the individual $10,000 state and local tax (“SALT”) deduction cap that was enacted as part of the federal Tax Cuts and Jobs Act of 2017 (the “TCJA”).