Taxpayers may have celebrated too soon when the New Jersey Division of Taxation announced that it was withdrawing TB-85 and the GDP-based apportionment regime for global intangible low-taxed income (GILTI) and foreign-derived intangible income (FDII) in favor of a more fair apportionment regime. Read our first post on T8-85 here.
Yesterday, the Division issued a new Technical Bulletin (TB-92) on the state’s treatment of GILTI and FDII that is quite troubling. The guidance provides that GILTI and FDII should be included in the general business income apportionment factor and sourced as “other business receipts” to New Jersey. The guidance then provides that “to compute the New Jersey allocation factor on Schedule J, the net amount of GILTI and the net FDII income amounts are included in the numerator (if applicable) and the denominator. This is to help prevent distortion to the allocation factor and arrive at a reasonable and equitable determination of New Jersey tax.”
As an initial matter, the Division considers FDII a new category of income, which is not the case – FDII is income from certain non-US sales that has always been included in income. The Tax Cuts and Jobs Act created the FDII deduction, which is based on such sales but FDII is not a new type of income. Thus, it seems particularly unreasonable that FDII would be subject to special apportionment rules and included on a net basis (really a net, net basis because instead of including gross receipts the guidance would include income net of a deduction) when other sales are included on a gross basis. This seems to be a blatant violation of the foreign commerce clause. It also seems unreasonable that FDII would be sourced as “other business receipts” and not based on the property or service actually sold by the taxpayer.
Furthermore, there Division provided no guidance on how GILTI and FDII should be included in the numerator of the apportionment formula. The Bulletin provides only that the taxpayer cannot look through to the underlying sales of the CFC (unless they are members of the combined group) when allocating GILTI and FDII. This is troubling because, in certain circumstances, other business receipts are sourced to the commercial domicile of the taxpayer. This would harm NJ-based companies and was likely not the intention of the Division.
Importantly, this guidance from the Division is merely the Division’s interpretation of the relevant New Jersey statutes and, to the extent that the guidance is inconsistent with the statutes or the US Constitution, the guidance is invalid. Accordingly, New Jersey taxpayers should consult with counsel to determine whether an appropriate tax return filing position exists to include the factors of the CFCs generating the GILTI in the New Jersey apportionment formula, thereby reducing the amount of income taxable in New Jersey, and/or whether they should file protective refund claims if they have already paid tax computed using the Division’s apportionment method. Also, as a reminder, the constitutionality of the tax on GILTI is particularly concerning in 2018 when New Jersey was a separate company filing state and arguably could not tax GILTI at all under the foreign commerce clause. Thus, taxpayers should certainly consult with counsel regarding their 2018 filing position in New Jersey.