Businesses that have service income from customers located outside of their state of residence should be alert they may be taxable in another state without having any physical presence, property, or employees in the state. For businesses located in California that are sole proprietorships, this is an even more serious problem.
Most states with income-based taxes have adopted market-based sourcing and others use cost-based sourcing of income. With market-based sourcing, service income is sourced to the state where the customer who receives the services is located. With cost-based sourcing, service income is sourced to the state where the service is performed.
How market-based sourcing works in each state is inconsistent. California also has economic nexus rules that can exempt some entities like corporations from market sourcing versus businesses taxed as sole proprietorships. For services rendered by nonresident businesses that aren’t taxed as sole proprietorships for California customers, the “nexus” requiring filing an income tax return doesn’t apply until 25% of their sales, property or payroll is located in California, or they have $711,538 in sales or $71,154 in property or payroll in California for 2023. These economic nexus thresholds don’t apply for nonresident businesses that are sole proprietors, so $1 of sales in California can subject them to an income tax return filing requirement, provided the other thresholds for filing individual income tax returns are met.
In a decision by the California Office of Tax Appeals that qualifies as precedent, Bindley (2019-OTA-179P), an independent contractor screenwriter did all of the writing of movie scripts in Arizona for California movie producers located in California. The movie producers issued Forms 1099 for $40,000 paid for the services during 2015. The California Franchise Tax Board said the income was taxable in California. Bindley claimed the income should be taxable in Arizona, where the services were provided. The Office of Tax Appeals upheld the California Franchise Tax Board.
More recently, the California Office of Tax Appeals upheld the California Franchise Tax Board in assessing penalties for failure to file income tax returns and pay tax on a CPA located in the state of Washington (Loober, 2023-OTA-170.) The CPA failed to file income tax returns for $200,000 of fees received from California clients for 2013 and more than $300,000 for 2014 and 2015 and later admitted the income was taxable in California. Loober claimed, as a Washington resident there was a reasonable cause for not knowing the California sourcing rules and the penalties should be waived. The Office of Tax Appeals upheld the Franchise Tax Board in finding Loober, a professional tax return preparer, should have known California’s rules for sourcing service income to California, when the benefit was received by California clients. Since Loober prepared Forms 1099 for the clients, Loober knew the amount to report and there wasn’t a reasonable cause for failing to report the income.
A related issue is individuals, including taxpayers doing business as sole proprietors, are taxed on their worldwide income. States generally allow a state tax credit when the income is taxed by the state of residence and another state.
In order to qualify for a state tax credit and avoid double taxation by states for income, the states must use the same rules for where income is taxed for nonresidents. This means service providers and their tax return preparers must examine the tax laws for each state to determine whether a state tax credit applies. (In the case of Loober, the state of Washington doesn’t have an income tax, so no state tax credit applied for the California tax Loober had to pay.)
There is no statute of limitations for unfiled income tax returns.
If a state collects income taxes when the statute of limitations for the resident state has expired, any state tax credit will be lost. This wasn’t an issue for Loober, but would apply in similar circumstances for an individual taxpayer located in a state with a state income tax. In the case of Loober, the California Franchise Tax Board sent requests for the 2013, 2014 and 2015 income tax returns in 2017. Correspondence about the liability for tax continued through 2021.
California professionals who currently perform services for out of state clients as sole proprietorships should consider converting their businesses to be S corporations.
Businesses who have customers located outside their resident state should consult with their tax return preparers about whether some of their income is taxable in another state and whether it’s being properly reported, including whether state income taxes paid to nonresident states qualify for a state tax credit.