Indian Wells, Rancho Mirage Tax Attorneys comment further on: RELOCATING SERVICE CONTRACTS (for purposes of avoiding the California state tax...Part 2)

October 22, 2012
By Michael Brooks on October 22, 2012 10:46 AM |

...To evaluate this, the distinction between Rule #1 (California income taxes incurred due to residency), as opposed to Rule #2 (California income taxes incurred due to sourcing) is extremely important. Taxpayers are more or less in control of their residency; they can pull up stakes and move. However, the source of income is not as easily controlled. In many cases, the operations that bring in the income rely on California's market, which is often the market the owner knows and understands. There is no point in moving out of state to avoid the application of Rule #1, if Rule #2 is still going to apply. The tax is the tax is the tax.

But let's look at the nuts and bolts. It's not unusual for a business owner to have a corporation and several related tax pass-through entities, such as limited liability companies or limited partnerships, which produce income by providing goods or services here in California. The corporation often provides the LLCs with administrative services, and charges accordingly. Generally, the owner will hold the corporate stock in a family trust. In case like this, creative relocation can have worthwhile tax benefits. Here's how.

First, remember Rule #1. Since the point of most business enterprises is to get money into the pockets of the owner, if the owner remains a California resident, relocating the corporation won't help a bit by itself. Assuming all the income from operations passes through the entities (including the trust) to the owner, it will be taxed by California because of Rule #1. All of a resident's income is taxable by California. So in situations like this, if a strategic relocation is in the cards, step one is for the owner to change residency to a lower tax or non-income tax state. Obviously that's a big step. It means major change. But if reducing state income taxes is the goal, it's the sine qua non.

Second, remember Rule #2: moving out-of-state won't change anything if the source of the income derives from California. The premise here is that the owner's market is in California, so he can't move the operations. Paying California income taxes on that is the price we pay for benefiting from the Golden State's large market. That said, what doesn't have to be performed here is the administrative services: the management, accounting, etc., that the corporation carries out for LLCs. The source of income from personal services is the location where the services are performed, and not where the nonresident lives, the location where the contract for services is entered into, or the place of payment. Cal. Code Reg §18662-5. Therefore, if the services aren't performed in-state, it's not California source.

Thus step two involves creating a new entity in a lower tax or non-tax state (or the owner can perform those services upon changing residency) to provide the administrative services. In that situation, neither Rule #1 nor Rule #2 applies to the fees charged by the corporation. The services are not rendered in California, so they are not California source. Neither the entity nor the owner are residents, so their global income isn't subject to California taxation.

Now, there are complexities with this, as with any tax situation.

The rule about location of performance is strict. If even some of the work is performed in California (say by the owner coming to California to inspect the business), the payment, or a portion thereof, will be deemed California source under special allocations rules. Cal. Code Regs.18 18662-2. Indeed, if the entity is performing other services in-state, or otherwise doing business in California, all the income from the services may be taxable by California. In the Matter of the Appeal of William-Sonoma, Inc., and Subsidiaries (June, 26, 2012). Therefore, to avoid the application of Rule #2, it is very important to "wall-off" any nonresident entity or person from doing any business in California.

Furthermore, new (and somewhat complex) rules went into effect in 2011 regarding what constitutes "doing business in California" for entities. Partnerships and LLCs are considered doing business in this state if they have general partners or members in this state. Likewise, partners and members are considered doing business in this state if the partnership or LLC is doing business in this state. Further, if a partnership or LLC has employees working in California, it might result in the entity being deemed doing businesses in California, even if most of its operations have nothing to do with California. The point is, depending on how the owner's entities are interrelated, one or all of them might be deemed "doing business in California" for taxation purposes. Therefore, relocators need to carefully scrutinize those relationships to insure none of them can be used to impute "doing business in California" to the nonresident entity.

It's also noteworthy that any equity distributions from the California entities to the out-of-state entity or the owner (and presumably they will be significant) derives from operations in this state. California applies a source-based concept of taxation for full-year nonresident partners. Appeal of Lore Pick, 85-SBE-066; (June 25, 1985), Appeal of George D. Bittner, 85-SBE-111 (October 9, 1985), Appeal of Estate of Marion Markus, 86-SBE-097 (May 6, 1986); FTB Legal Ruling 2003-1. Essentially, California requires owners of pass-through entities to treat items of income, deduction and credits earned by such entities as if the items were earned by the owners at that time.

Similarly, nonresident shareholders are taxed on the portion of their distributive shares of an S corporation's income or loss, which are derived from sources within the state. Valentino v. Franchise Tax Board (1993) 25 Cal.Rptr. 282; Rev. & Tax. Cd, §17951. This is a bright-line rule that can't be avoided. (Dividend income from C-corps is treated differently and generally is sourced not to operations but to where the recipient resides, but that's another story).

So, in my scenario, while you may be able to free service contracts from California taxation, the same isn't true for the profits of the companies engaged in operations.