The Kentucky Court of Appeals held in an unpublished opinion that an out-of-state parent company was not an “includible corporation” as defined by Kentucky law and could not file a consolidated return with its in-state subsidiary. The Department argued that the parent company taxpayer was not an includible corporation because it fell within two exceptions included in the statutory definition – one for companies that have net operating losses and de minimis apportionment factors and the other for companies with zero apportionment factors. The parent company argued that, regardless of those exceptions, it qualified as an “includible corporation” under a separate section in the statute that defines “affiliated group.” Based on statutory construction and legislative history, the Court of Appeals sided with the Department, reasoning that “includible corporation” and “affiliated group” are two different definitions and one cannot be read into the other. Even if it is a member of an “affiliated group,” a common parent must also meet the definition of an “includible corporation” to be included in the Kentucky consolidated return.
World Acceptance Corp. et al. v. Fin. & Admin. Cabinet, Kentucky Dep’t of Revenue, No. 2015-CA-001852-MR (Ky. Ct. App. Jan. 4, 2019).
