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Indiana Court Rules Finance Companies Can Recoup Sales Tax on Defaulted, Discounted Loans Using Market Discount Rules

Posted 8:30 PM by
On Dec. 24, 2014, the Indiana Tax Court issued its long-awaited decision in SAC Finance vs. Indiana Department of Revenue, a case that centered on the calculation of the allowable bad debt deduction afforded to the financing arm in a buy here-pay here structure. In SAC, the finance company purchased paper from a related retailer on a non-recourse basis at a discount. The central issue in the case was whether the finance company could calculate its allowable bad debt deduction using the Market Discount Rules. 
 
The Indiana Tax Court held that the finance company was entitled to use the Market Discount Rules and the Indiana Department of Revenue (IDR) was incorrect in disallowing refunds calculated on this basis; reversing course on the IDR’s long-standing position that the sales tax bad debt deduction calculation excluded market discount income. While we fully expect the IDR to file an appeal, the Indiana Tax Court has appellate authority, meaning the IDR is not guaranteed an appeal — the Indiana Supreme Court will decide whether or not to take the case if/when the IDR attempts to appeal the decision. The IDR has 30 days from the date of this decision to choose whether or not to file an appeal.

 

KSM will provide an update upon learning of the IDR’s decision regarding whether or not it will file an appeal. In the meantime, please do not hesitate to contact us.

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Indiana Tax Court Case - Sales/Use Tax for Contractors

Posted 8:32 PM by

On Dec. 19, 2014, the Indiana Tax Court issued a decision in Lowes Home Centers, LLC v. Indiana Department of State Revenue that may radically change the sales tax landscape for Indiana real property contractors. The Indiana Department of Revenue has had a long-standing policy of applying different tax treatment depending on the underlying real property construction contract. The historic treatment has been as follows:   

  • Contractors operating under a lump sum contract: Treated as the end user of materials, and thus taxed on the cost of materials they purchase
  • Contractors operating under a time and materials (T&M) contract: Treated as sellers of materials, and thus have a responsibility to collect sales tax on materials transferred to customers

The Tax Court held that this distinction between T&M and lump sum contractors does not exist in the Indiana Code and the Department has inappropriately created an artificial distinction via regulations it has adopted. As a result, it was determined that Lowes should owe use tax on its costs of materials incorporated into realty via a T&M contract (i.e. be treated as lump sum contractor would historically have been treated). 

The effect of this decision could mean that there is now one Indiana standard for all real property construction contractors regardless of the type of contract entered into with its customer. Having a uniform standard, in which the contractor would owe use tax on its purchases of all materials incorporated into realty in Indiana, could significantly decrease the recordkeeping/compliance burden of contractors utilizing multiple types of contracts.

While much may have changed, the Lowes decision does not impact the tax treatment for contractors operating under lump sum contracts for real property or any contract for the sale or repair of personal property, even if performed by a real property construction contractor.

We expect the Department of Revenue to file an appeal; however, it will be up to the Indiana Supreme Court whether or not it takes the case if/when the Department attempts to appeal the decision. Until the appeals process plays out, there will be some uncertainty for real property contractors operating under a T&M contract. Department regulations and other guidance (such as Information Bulletin ST 60) may need to be re-written as a result of this decision.

In the meantime, we wanted to make you aware of this exciting development. If you have any questions, please do not hesitate to contact us.

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Driver Pay – The Pay Rate is One Factor in Total Compensation

Posted 7:11 PM by

Several months ago KSM Transport Advisors (KSMTA) published a blog post entitled “Driver Recruiting is a Marketing Effort.” In the post, David Roush, president of KSMTA, defined the “product” carriers offer drivers as the package of tangibles and intangibles the driver perceives he or she is receiving from the carrier. This article builds on that foundation and focuses on the mutually beneficial intangibles that provide monetary value to both the driver and the carrier.

Today, the trucking industry and the shipping public are at a crossroads when it comes to attracting and keeping qualified, productive drivers. The industry has experienced several driver pay rate increases in recent months and that trend is expected to continue in the foreseeable future. Gordon Klemp, publisher of the National Survey of Driver Wages (NSDW) recently stated, “The changes we have seen in Q3 represent a rate of change for dry vans, which is a factor of two larger than any quarter in the 19 years we have published the NSDW.”

The “rate” of pay is what attracts drivers in the hiring process; however, there are other factors within the carrier’s control that influence the gross wages earned by the driver. These factors are mutually beneficial and provide the driver the best future and the carrier the best chance to retain high quality drivers. There are many factors that directly or indirectly influence the driver’s total compensation and job satisfaction besides the “per mile” rate such as the following: 

1)     Reliable, Well Maintained Equipment

  • Keeping tractors and trailers in top shape goes a long way to keeping the driver productive without unforeseen delays and service failures; maximizing the driver’s compensation.
  • A well designed maintenance program allows the carrier to minimize the total cost of asset ownership.

2)     Driver-Friendly Freight

  • Do not underestimate the impact of the loading and unloading experience in shaping the driver’s view of his or her job.
  • Work with shippers and receivers to minimize the time and hassle involved; encourage drop trailers where the weekly turns provide an economic benefit.
  • It is better for all parties if the driver is paid for driving rather than being paid for not driving (loading/unloading, extra stops, layover, etc.).

3)     Well Designed, Optimized Freight Network

  • Drivers like predictability and consistency in their job.
  • The driver’s total pay is maximized if he or she keeps moving.
  • An optimized network allows for minimal delay between loads, an opportunity to pre-book the best loads in advance, and loads that provide the best overall productivity for the driver and margins for the company.
  • It is much easier for carriers to plan for driver time off.

4)     Comprehensive Compensation Package

  • Evaluate the total pay opportunity for the driver; not just the mileage pay rate.
  • Develop meaningful, manageable, and measurable Pay-for-Performance factors to supplement the base pay and reward results that improve the carriers operating metrics and margins.
  • Consider guarantees or minimums (proper implementation of the first three points above will help with being able to provide guarantees without a great deal of risk or downside).

It may be necessary to increase the base pay rates to attract and hire new drivers in the future but do not underestimate the impact of maximizing compensation by providing intangibles that yield a higher paycheck for the driver and increased margins for the carrier.

About the Author
Kirby McLinn is the director of analytics at KSM Transport Advisors, LLC, part of the Katz, Sapper & Miller Network, where he provides analysis support in the freight network optimization and financial management areas. Connect with him on LinkedIn.

 

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Potential Delay of New Revenue Recognition Standard

Posted 3:44 PM by

A Transition Source Group (TRG) has been created by the Financial Accounting Standards Board (FASB) and has been charged with informing the FASB about potential implementation issues regarding Accounting Standards Update (ASU) 2014-09 Revenue from Contracts with Customers.

At its October meeting, the TRG discussed requests by stakeholders for deferral of the effective date of the ASU. Currently, the ASU is effective Jan. 1, 2018 for nonpublic, calendar year entities.

The FASB plans to perform site visits and will decide in the second quarter of 2015 if deferral of the implementation date is needed.

About the Author
Matt Bishop is a director in Katz, Sapper & Miller’s Audit and Assurance Services Department. Matt audits and reviews financial statements, and he advises clients on accounting, reporting and compliance matters. Connect with him on LinkedIn.

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State & Local Tax Update: 11/13/14

Posted 7:11 PM by

Personal Property Tax and 263(a)

For companies taking advantage of 263(a) rules for federal tax purposes, it is important to remember that for personal property tax purposes, there may not be a de minimis safe harbor application. For income tax purposes, it may be acceptable to expense individual fixed assets costing $5,000 or less; for personal property tax returns, these assets may still be considered assessable and taxable. If you choose to take advantage of the new 263(a) rules and expense assets costing $5,000 or less, you may want to consider keeping a second set of records for personal property reporting.
 
As a reminder, some states exempt personal property; however, many states do impose a personal property tax, and due dates vary by state. Now is a good time to review your asset listing to ensure all personal property tax filing deadlines are met.
 
Please contact your KSM advisor with any questions regarding the effect of Section 263(a) and personal property reporting.
 

Indiana Rules on Taxability of Web Hosting and Web Design  
Based on documentation indicating the true nature of the transaction as services, Web-design and Web-hosting services were treated as nontaxable for Indiana sales and use tax purposes. (For more information, see LOF 04-20140207.)

California Issues Guidance on LLC Member Filing Requirements  
CA FTB Legal Ruling 2014-01 outlines various scenarios in which an entity holding a membership interest in an LLC is required to file in California. The Ruling also outlines when the member is subject to the LLC fee and tax, based on the activities of the LLC that are attributed to it. (For more information, see Legal Ruling 2014-01.)

California Issues Guidance on Sales Factor Sourcing Rules  
California has provided guidance on how to apply the new single-sales factor and market-based sourcing rules for tax years beginning 1/1/13. The changes to sourcing sales of other than tangible personal property are addressed, with examples of how market assignment will impact the numerator. (For more information, see Sales Factor Sourcing Rules.)

California Sets Doing Business Thresholds for 2014 
A taxpayer will be considered doing business in California if he or she has sales of $529,562, property of $52,956, or payroll of $52,956. 

California Issues Guidance on New Like-Kind Exchange Reporting Rules 
California issued a Public Service Bulletin to assist taxpayers with questions on the upcoming changes to reporting requirements for like-kind exchanges involving a California property. The bulletin outlines the new rules effective 1/1/14 and provides some guidance on Form 3840, which should be released before year end. (For more information, see the Public Service Bulletin.)

Illinois Provides Guidance on Sales Factor Sourcing for Cloud Computing  
In IT-14-0003-PLR , the Illinois Department of Revenue indicated revenue from cloud computing was a service and not the sale of tangible personal property, thus it was to be sourced using the service sourcing rules, using receipt as the primary location. Based on those rules, in situations where the taxpayer could not determine where the customer is accessing the services, the revenue would be sourced to where the customer ordered the services. If that cannot be determined, the billing address is used. In addition, the throwout rule would be a consideration if the taxpayer was not taxable in the state in which the service is deemed to be received. (For more information, see IT-14-0003-PLR.)

About the Author
Donna Niesen is a partner in Katz, Sapper & Miller’s State and Local Tax Group. Donna helps keep clients up-to-date on the multitude of tax rules and requirements in all 50 states. She guides them in the right direction as they address the complex issues that emerge on both the state and local levels. Connect with her on LinkedIn.

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Congestion, Infrastructure and Taxation

Posted 4:52 PM by
During 2013, transportation companies in the United States added more than $9.2 billion in operational costs due solely to congestion on the roads causing delays. The American Trucking Research Institute (ATRI) estimates that delays caused the loss of more than 141 million hours of productive driving time during 2013, the equivalent of 51,000 truck drivers sitting idle for the entire year!  
 
The ATRI study on congestion broke down the 100 worst bottleneck areas in the country and identified California followed by Texas as the states with the highest congestion costs ($1.7 and $1.1 billion respectively in 2013). When examining the data on a per truck basis, congestion resulted in an average of just over $5,000 per truck in 2013 related to delays on the road. The result of the study points toward a commonly known problem for the transportation industry and the United States as a whole – infrastructure improvements are needed.
 
While everyone can agree that the country needs to invest in infrastructure (estimates average the need for $3.6 trillion in infrastructure spending by 2020), how to pay for these projects is up for debate. There are several options that have advantages and disadvantages. One or a combination of these options will be required to fund future infrastructure improvements.
  • Higher federal income tax rates – This method would spread the cost to every taxpayer in the country by increasing income tax rates specifically for infrastructure funding. The advantage is spreading the cost over a large base of taxpayers. The main disadvantage is this could disproportionately affect the taxpayers since it is not directly linked to the usage of infrastructure. 
  • Higher fuel excise tax – Currently transportation companies pay .24 per gallon of diesel fuel to the federal government in fuel excise tax. Additionally individual citizens pay .18 per gallon on gasoline for their vehicles. Increasing the tax would have the advantage of allowing the heavier users of fuel and the roads to pay a larger share of the burden of replacement. However, there are a few disadvantages as well. First, if this tax is increased, lower and middle-income individuals are disproportionately affected, especially those in areas not served by mass transit systems. A second (and potentially larger) reason to not use this method is that as the fuel economy continues to improve, the collection of excise tax will continue to drop on a per vehicle basis with less fuel consumption needed to cover the same number of miles.
  • Per mile tax or implementing congestion pricing – An alternative to increasing the excise tax while still basing the tax on usage of the roads would be a per mile tax or charging higher tolls for driving at certain times. A tax of this type would avoid the potential problems down the road of increased fuel efficiency reducing tax collected while maintaining a sense of fairness in the sense that heavier users would pay a larger portion of the tax. A major problem with these methods would be the need to potentially implement an entirely new collection system. Increasing tolls based on time of day also presents a whole new set of challenges for transportation company freight networks. Simply google congestion pricing and you will be presented with hundreds of cases for and against using this methodology.  
The one guarantee is that the United States needs to invest in its transportation infrastructure to alleviate the problems of congestion as the economy continues to grow. How and who will pay will be the true challenge in the coming years. 

Connect with Ben 
Ben Lyon is a director in Katz, Sapper & Miller’s Business Advisory Group and a member of the firm's Transportation Services Group. Ben’s responsibilities include reviewing financial statements and tax returns, along with advising clients in accounting, reporting and tax-related matters.

 

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Profitable Solutions for Nonprofits - Fall 2014

Posted 1:00 PM by

In This Issue:

Tips for Preventing Fraud in an Organization
When a nonprofit becomes a victim of fraud it does not just hurt the organization’s bottom line, but it can also cause devastating damage to the organization’s reputation. By implementing some simple controls, nonprofits can help protect themselves from these risks. By John Henne, CPA, CFE, MPA, CISA

Footnotes Tell a Story: What Constituents Can Glean from Financial Statements
When reviewing financial statements, nonprofit board members and managers sometimes make the mistake of focusing solely on bottom-line figures; but financial statements also may include a wealth of information in their disclosures. By Anne DeLaney, CPA, MBA

Not All Funds Are Created Equal
Nonprofit organizations typically depend on a variety of funding to keep them alive and well. They need funds to pay their bills, pay their employees and pay for the costs of running their programs. But savvy nonprofits know that not all that’s green has equal value and flexibility. Types of funding vary greatly in how they can — or cannot — be usedBy Jessica Boicort, CPA, MBA

Newsbits
The Office of Management and Budget (OMB) has streamlined its guidance on grants management, including administrative requirements, cost principles and audit requirements for federal awards. The new rules reduce the burden on smaller nonprofits by increasing the threshold that triggers compliance audits currently performed under OMB Circular No. A-133, Audits of States, Local Governments, and Non-Profit Organizations (also known as single audits).

 

Katz, Sapper & Miller’s Profitable Solutions for Nonprofits is a quarterly newsletter that focuses on tax and accounting issues for the not-for-profit industry, brought to you by KSM's Not-for-Profit Services Group.

 


 

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Litigation Services Bulletin - Fall 2014

Posted 3:36 PM by

In This Issue:

May Expert Use Valuation with Unknown Discounts for Royalty Analysis?
The plaintiff’s Daubert challenge in this intellectual property case is noteworthy because the plaintiff sought to enlarge the concept of comparability when arguing that Microsoft’s damages expert produced an unreliable calculation. It also attacked the expert for using the plaintiff’s own valuation of the patent in suit even though he did not know the embedded discounts accounting for uncertainty.

Nash Bargaining Solution a ‘Non-Starter’ for Royalty Analysis
After rejecting the plaintiff’s Daubert challenge in an earlier ruling, the federal district court next turned to defendant Microsoft’s attack on the plaintiff’s damages expert, specifically its claim that his reasonable royalty calculation was the result of the Nash bargaining solution (NBS)—an impermissible rule of thumb that did not tie the royalty rate to the particulars of a case.

‘Stand-Alone’ Lost Profits Claim Sinks, as Does Expert Opinion
A short Daubert decision regarding a contract dispute subject to New York law and involving the licensing of patents stands out because it discusses not only problematic expert testimony, but also the use of future lost profits as a measure of damages and the relevance of the hypothetical negotiation framework to the case.

Don’t Forget About Your Expert Valuation, Delaware Chancery Warns
Even when a case ostensibly is not about valuation, valuation issues often play a pivotal role, and failure to provide a valuation may undermine a party’s claim. This is one of the lessons gleaned from a Delaware shareholder suit that moved from the Delaware Court of Chancery to the state’s Supreme Court on a novel legal issue.

Court Balks When Expert Veers from Classic Analysis
When it comes to methodology, stick to the tried and true. This is the key takeaway from a recent intellectual property case involving a patent related to a dual-flush valve mechanism in toilets. An experienced appraiser adjusted the royalty base and royalty rate formulas—and saw his damages calculation go down the drain.

 

Katz, Sapper & Miller’s Litigation Services Bulletin is a quarterly newsletter that focuses on the latest developments in litigation services and financial damages expert consulting, brought to you by KSM's Litigation Services Group

 

 


 

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Driver Recruiting and Retention: Latest Trends and Best Practices

Posted 2:25 PM by
Recently Katz, Sapper & Miller’s Transportation Services Group and KSM Transport Advisors co-hosted a Trucking Owners Business Roundtable in Nashville, TN. Approximately 35 trucking company owners and executives attended the roundtable, which focused on the driver shortage and driver recruiting and retention. Gordon Klemp (The National Transportation Institute), Steve Prelipp (Prelipp Consulting), John Biblis (Truck Safety Advisors) and Mark Baugh (Baker Donelson) presented on these important and timely topics.
 
Klemp provided insight into today’s company driver and owner-operator compensation trends. Overall, Klemp believes that the industry will see a significant increase in driver pay in the coming months in an effort to recruit and retain drivers. The current driver shortage has led many trucking companies to be creative with their compensation packages in order to compete with private fleets, which generally offer higher compensation and more home time. Klemp also provided insight into how the driver shortage came to be, including increased unemployment benefits, the underground economy, stricter qualifications/regulations, technology, retirements and competition from private fleets. Having a competitive compensation package has always been imperative, but has become even more important in the current environment.  
 
Prelipp provided some best practices for the ultra-competitive driver recruiting function. The driver shortage has made an already challenging task (recruiting drivers), even more challenging and competitive. What may have worked in recruiting 10 years ago has changed dramatically. Today’s driver generally has different expectations, such as more work/life balance, from their potential employer than the driver of 10-15 years ago. Prelipp believes that in order to succeed, an organization must have a well-defined recruiting model, which includes setting goals, having the right people and systems and must be results oriented. The recruiting function must also have the right leader who can relate to Generations X and Y, must be tech-savvy and manages for results. Often times, the recruiting department can lead to a company’s success or its ultimate failure. Investing the necessary (and right) people and resources in this function can provide for a competitive advantage.  
 
Biblis spoke about hiring the right driver in order to improve safety, productivity and retention. He reminded the audience that the driver is the only one in the organization that generates revenue, but often times these individuals are paid less than they deserve, spend multiple nights away from home and are generally treated poorly. Biblis suggested evaluating recruiters on quality and not just quantity. He also suggested that retention issues may not just be the result of poor pay or equipment, but may be more of a process and/or relationship driven issue. Biblis provided a few tips to improve retention, including: 1) Say what you do and do what you say; 2) Make sure recruiters know what they are selling; 3) Identify what you track and manage the data; 4) Evaluate every process; 5) Perception surveys (drivers and non-drivers); 6) Implement a shepherding program.  
 
Baugh spoke about some of the employment legal issues surrounding the trucking industry, specifically the Fair Labor Standards Act (FLSA) and independent contractor status. The amount of FLSA claims, which include misclassification of employees and minimum wage issues, has increased from approximately 5,300 claims in 2008 to approximately 8,000 in 2013. FLSA claims can lead to high damages, liquidated damages and individual liability. In order to manage the FLSA risk, Baugh suggests adopting a policy, review job descriptions, self-audit and if problems are discovered, pay and ask for an acknowledgement. 
 
Independent contractor status is another hot topic industry wide. Misclassification of independent contractor vs. employee can lead to issues with the Department of Labor, Equal Employment Opportunity Commission  and the Internal Revenue Service, just to name a few. In order for trucking companies to protect themselves, Baugh recommends having a written contract between the company and the independent contractor, having the independent contractor supply their own equipment, fuel and tools, having separate training and policies and being clear. While the FLSA and independent contractor classification issues are complex, proper planning and documentation can help reduce the risk around these issues.
 
The Trucking Owners Business Roundtable, exclusively designed for trucking executives, is an annual program hosted in Indianapolis, IN and Nashville, TN. The roundtable is an opportunity for owners of some of the country's top trucking companies to learn about and discuss current issues that present challenges and opportunities for their businesses. For more information regarding the program, please contact Tim Almack 317.580.2068 or talmack@ksmcpa.com

 

Connect with Jason 
Jason Miller is a director in Katz, Sapper & Miller’s Audit and Assurance Services Department and a member of the Transportation Services Group. Jason focuses on the day-to-day delivery of core audit services, including financial statement audits, reviews and consulting.

 

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Valuation Services Bulletin - Fall 2014

Posted 10:29 PM by

In This Issue:

Help Clients Squeeze the Most Value Out of M&A Synergy 
As the economy improves, M&A activity increases. Companies buy other companies because they expect an increase in value triggered by the combination of two firms into a new entity.

How to Value a Holding Company and Discount for BICG Liability
Just as film critics predict that a movie they see today will be a contender in next year’s Oscar race, many believe the Tax Court’s recent Estate of Richmond opinion will be one of the most important valuation decisions of 2014.

U.S. Tax Court Judge Laro Discusses Valuation and Expert Testimony Issues
It is not every day that one has an opportunity to hear the insights of a U.S. Tax Court judge on issues of interest to valuation analysts. At a recent luncheon sponsored by the Business Valuation Association, Judge David Laro spoke on a number of interesting topics.

Pratt’s Stats Analysis Reveals Significant Trend
Recent analysis of 2013 data from Pratt’s Stats, the leading private M&A transaction database, reveals several notable trends.

 

Katz, Sapper & Miller’s Valuation Services Bulletin is a quarterly newsletter that focuses on the latest developments affecting business litigation, marital dissolution and estate and gift tax, brought to you by KSM's Valuations Services Group.

 

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