The Franchise Tax Board (FTB) on October 5, 2012, issued guidance addressing:
- Whether taxpayers will be able to avoid the imposition of California’s large corporate understatement penalty on originallyfiled returns as a result of the October 2, 2012 decision
- The procedures for taxpayers to follow to file protective refund claims under Gillette
The California appeals court in Gillette Co. v. Franchise Tax Board issued its original opinion in the matter on July 24, 2012, but on its own motion, vacated that decision on August 8, 2012.
In its reissued decision, the court again held that a taxpayer could apportion its income to California using the Multistate Tax Compact’s evenly weighted three-factor formula, despite statutory language mandating the use of a double-weighted sales factor for general corporations. See TaxNewsFlash-United States: California - Appeals court again upholds election to apportion income under Multistate Tax Compact
The reissued opinion was nearly identical to the original decision, differing primarily in that the second opinion noted that California legislation (Senate Bill 1015, signed June 27, 2012) repealing the Multistate Tax Compact had been passed subsequent to oral argument in this case. Both decisions were based principally on federal law regarding interstate compacts and the court’s view that when California became a signatory to the compact, it entered into a binding agreement that—absent repeal of the compact in its entirety—obligated it to offer multistate taxpayers the option of using the compact’s allocation and apportionment provisions.
Because the Gillette decision raised many questions for taxpayers considering whether they were to elect to use the compact’s allocation and apportionment provisions on originally filed 2011 returns, the Franchise Tax Board (FTB) issued guidance concerning California’s large corporate understatement penalty on originally filed returns as a result of the October 2 decision, and procedures to follow to file protective refund claims under Gillette.
California’s 20% “substantial understatement” penalty applies to taxpayers with an understatement of tax greater than $1 million, or 20% of the tax shown on the original return or amended return filed on or before the original or extended due date.
Many taxpayers have expressed concerns that the penalty may apply to originally filed returns electing to use the equally weighted, three-factor Multistate Tax Compact election if the Gillette decision is subsequently modified or reversed by the California Supreme Court.
Although the taxpayer prevailed in the reissued opinion, under California’s court rules, the reissued opinion will not be final for a 30-day period. As such, taxpayers making the compact election on returns filed on or before October 15, 2012, would be relying on a judicial decision that is not yet finalized.
In guidance (October 5, 2012) issued after the court’s second decision, the FTB announced that because the Gillette opinion is not yet final, taxpayers that make the compact election on an October 15 return “run the risk of incurring” the substantial understatement penalty if the decision is later modified by the California Supreme Court.
Note that under Cal. Rev. & Tax Code § 19138(f), no penalty can be imposed on any understatement that is attributable to a change in law that is enacted, promulgated, issued, or becomes final after the earlier of either of the following dates:
- The date when the taxpayer files the return for the tax year for which the change is operative
- The extended due date for the return of the taxpayer for the tax year for which the change is operative
A “change of law” includes a published federal or California court decision. However, in the FTB’s view, this section would not operate to provide relief to taxpayers in the event Gillette is overturned because the appeals court decision would not be final—and therefore would not be “law” in California—until after October 15 returns are filed.
Note that the substantial understatement penalty at issue here is not subject to waiver or abatement for “reasonable cause.”
Protective refund claims
The FTB also issued Notice 2012-01 [PDF 64KB] which addresses how taxpayers are to file protective refund claims related to the Multistate Tax Compact election.
In this October 5, 2012 notice, the FTB reiterated its view that the election is valid only when made on originally filed returns. Furthermore, if Gillette is not reversed on appeal to the California Supreme Court, the FTB cautioned that it plans to raise additional defenses to Gillette’s refund claim—including that the election was invalid because it was not made on an originally filed return.
Regardless, the notice explains how taxpayers or their representatives can file amended returns or letter claims to preserve their rights to a refund. The FTB indicated that it will take no action on the protective claims until all the legal issues in Gillette are resolved.
For more information, contact a KPMG State and Local Tax professional: