Larry's Tax Law

Background

As previously reported, the new Oregon Corporate Activity Tax (the “CAT”) went into effect on January 1, 2020.  The new law is quite complex and arguably not very well thought out by lawmakers.  Although the Oregon Department of Revenue (the “DOR”) has worked hard to bring clarity to the CAT through rulemaking, many questions remain, including application of the many exemptions and computation of the required tax estimates.  Despite pleas by small businesses to repeal or at least put the CAT in hibernation until the uncertainties resulting from the COVID-19 pandemic have been alleviated, both Oregon’s Governor and the state’s lawmakers have proclaimed in so many words that the show must go on – the CAT will remain in place, even during these horrific times.

In accordance with ORS 305.157, the director of the Oregon Department of Revenue (“DOR”) ordered an automatic extension of the 2019 tax year income tax filing and payment due dates. Oregon now joins several other states and the U.S. Department of the Treasury in this regard.

For Oregon personal income taxpayers, the order means:

• • The Oregon income tax return filing due date for tax year 2019 is automatically extended from April 15, 2020 to July 15, 2020.
  • The Oregon income tax payment deadline for payments due with the 2019 tax year return is automatically extended to July 15, 2020.
  • The time for making estimated tax payments for tax year 2020 is not extended.
  • The tax year 2019 six-month extension to file, if requested, continues to extend only the filing deadline until October 15, 2020.
  • Taxpayers do not need to file any additional forms or notify the DOR to qualify for this Oregon tax filing and payment extension. 

I hope our readers, their families and co-workers are safe and remain healthy during these trying times.  As a distraction for tax geeks like us from the news about the Coronavirus that is permeating our lives these days, Peter and I decided to present more coverage on the Oregon Corporate Activity Tax (“CAT”).

On March 6, 2020, the Oregon Department of Revenue (the “Department”) published two new temporary rules that it had previously presented in draft form.  While the rules are substantively the same as they were in draft form, there are several nuances worthy of discussion.

Temporary Rules Keep Rolling in

The Oregon Department of Revenue (the “Department”) recently issued four new temporary rules relative to the Oregon Corporate Activity Tax (the “CAT”).  The new rules went into effect on February 1, 2020.    

The new temporary rules provide much needed guidance with respect to three notable exclusions from the fangs of the CAT, namely the Grocery Exclusion, the Wholesale Exclusion and the Vehicle Exclusion.

The CAT Tour

As previously discussed, late last year, the Oregon Department of Revenue (the “Department”) conducted several town hall meetings with taxpayers and tax practitioners across the state to discuss the Corporate Activity Tax (the “CAT”), answer questions and solicit feedback about administration of the new tax regime.  I am happy to report that the Department is hitting the road again! 

The Department announced on February 6 that it will be hosting another series of meetings across the state next month.  The meetings are aimed at providing information to and answering the questions of taxpayers and tax professionals about the CAT and the newly issued administrative rules.

I apologize in advance for focusing my blog these past several weeks on the new Oregon Corporate Activity Tax (“CAT”), but my mind keeps finding new facets to this tax regime that I suspect most tax practitioners and even the lawmakers who passed the legislation may not have envisioned or anticipated.  So, please indulge me as I explore another one of these numerous issues in this installment of the blog.

After the passage of the Tax Reform Act of 1986 and the introduction of Code Section 469, we started seeing tax practitioners focusing attention on trying to figure out how their clients could be characterized as active participants in a trade or business activity.  Their goal is simple – they want to avoid the deduction limitations imposed by the passive activity loss rules contained in Code Section 469. 

A dog will immediately respond to you when you call out.  On the other hand, when you call out to a cat, the cat will take a message and promise to get back to you later.  This is not the case with the Corporate Activity Tax (“CAT”).  The Oregon Department of Revenue (“DOR”) is doing everything possible to provide taxpayers and tax practitioners with prompt and helpful guidance and support relative to the CAT, the new state tax regime that became effective on January 1, 2020.

As previously discussed, late last year, the DOR conducted several town hall meetings with taxpayers and tax practitioners across the state to discuss the CAT, answer questions and solicit feedback about administration of the tax regime.  In addition, as promised, the DOR started issuing draft temporary rules this past December to provide clarity and address many uncertainties in the new law.  It quickly removed the “draft” stamp from the rules.  The rules keep rolling in!  To date, the DOR has issued a total of 12 temporary rules.  We have already provided a discussion of eight of those temporary rules.  In this post, we discuss the remaining four temporary rules.

On January 6, I presented a new White Paper, The Oregon Corporate Activity Tax – You Can Run and You Can Hide, but This New Tax Is Effective January 1, 2020, at the Oregon Society of Certified Public Accountants Annual State and Local Tax Conference.  We had a large number of attendees, including representatives of the Oregon Department of Revenue (the “DOR”).  Based upon the numerous questions I received (during and after the presentation), it is clear that tax practitioners are busy thinking about this new tax regime and how it applies to their clients.  Unfortunately, in this particular case, I do not believe the curiosity will kill the CAT.  It looks like it is here to stay.

Recent Announcements

The Oregon Department of Revenue (the “Department”) has made several recent announcements regarding Oregon’s new Commercial Activity Tax (the “CAT”).

In an email dated December 4, 2019, the Department said it anticipated sharing initial drafts of the first batch of temporary administrative rules on its website in December 2019.

In the same email, the Department also announced that some issues will not be addressed in its rules. For example, the Department has determined that there is no way to provide guidance with respect to how businesses may properly estimate the amount of CAT liability attributable to particular transactions. The Department goes on to tell us, however, that many frequently asked questions will be addressed in forms, instructions, publications and/or FAQs on the Department’s website.

Importantly, the Department has made it clear that the CAT “does not prohibit any business subject to the CAT from passing the tax along to its customers.”

In recent months, we have written extensively about Oregon’s new Corporate Activity Tax (the “CAT”).  As discussed in our last post, the Oregon Department of Revenue (the “Department”) recently announced that it would hold a dial-in meeting to solicit input regarding the Department’s rulemaking process from stakeholders located out of state or who otherwise could not attend the town hall meetings.  Peter Evalds attended the telephone meeting, which was held on Friday, October 25, 2019. 

This post continues our coverage of the CAT with an overview of new information we learned during the call.  This post also addresses questions and answers that the Department recently uploaded to the Frequently Asked Questions (“FAQs”) section of its CAT website.