The distinction between business and nonbusiness income.

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The distinction between business and nonbusiness income.
Should income from a unique,
extraordinary or unusual transaction
be apportioned ap·por·tion Â
tr.v. ap·por·tioned,
ap·por·tion·ing, ap·por·tions
To divide and assign according to a
plan; allot: "The tendency persists to
apportion blame as suits the
circumstances"Â Â and taxable among
the states? It seems the nationwide
trend is to identify these special
transactions, yet the question of
business vs. non-business income still
remains.
Business vs. Nonbusiness non·busi·ness Â
adj.
1. Unrelated to business or industry.
2. Unrelated to one's own business or employment. Â Income
A multistate corporation generally will allocate and apportion ap·por·tion Â
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits
the circumstances"Â Â its net income among the states in which it is doing business or subject to the
income/franchise tax. The majority of states distinguish business income from nonbusiness income
when determining whether income should be apportioned or allocated. Some states do not
distinguish between business and non-business income and are considered "full apportionment The
process by which legislative seats are distributed among units entitled to representation;
determination of the number of representatives that a state, county, or other subdivision may send
to a legislative body. The U.S. " states.
Business income is generally apportioned (applying a formula apportionment) among the states in
which the corporation is doing business; nonbusiness income is allocated to a single taxing state.
States have often adopted their own definitions of business and nonbusiness income; this
classification varies. Different approaches in deciding whether an item of income is allocable
(nonbusiness) or apportionable Adj. 1. apportionable - capable of being distributed
allocable, allocatable
distributive - serving to distribute or allot or disperse  (business) include:
* Uniform Division of Income for Tax Purposes Act (UDITPA UDITPA Uniform Division of Income for
Tax Purposes Act (US)Â );
* Type of income; and
* Unitary business.
Many states have adopted the definition under UDITPA, which defines business income as income
arising from transactions and activity in the regular course of the taxpayer's trade or business and
includes income from tangible and intangible property intangible property n. items such as stock in
a company which represent value but are not actual, tangible objects. Â if the acquisition,
management and disposition of the property constitute integral parts of the taxpayer's regular trade
or business operations Business operations are those activities involved in the running of a business
for the purpose of producing value for the stakeholders. Compare business processes. The outcome
of business operations is the harvesting of value from assets .
This definition contains two independent tests. The transaction test addresses whether the
transaction or activity that gave rise to the income in question occurred in the regular course of a
taxpayer's trade or business. The functional test is based on the functional integration of the income-
producing property and the taxpayer's unitary business operations. If either test is met, the income
is apportionable business income.
Although each state can follow either a functional or income-type approach, the unitary business
approach (which focuses on the relationship between the taxpayer and the entity) may be applied as
an additional or alternative test.
Presumption That Income Is Apportionable
Multistate Tax Commission regulations state that, in essence, all income arising from the conduct of
trade or business operations of a taxpayer is business income. The regulations presume that income
is business income unless it is clearly classified as nonbusiness income. The burden of overcoming
the presumption rests with the taxpayer.
The landmark cases of Allied Signal, 112 S.Ct. 2251 (1992) and ASARCO ASARCO American
Smelting and Refining Company , 458 US 307 (1982), established positions for an alternative unitary
approach and exceptions to business income for taxpayers, even if the business income tests are met
in states adopting UDITPA.
Because business income can often be determined to be income arising in a taxpayer's regular
course of business, or from transactions constituting an integral part of a taxpayer's business, state
courts have developed numerous ways and approaches to define a taxpayer's regular course of
business.
State Case Developments
In Union Carbide Corp. v. Offerman, N.C. Ct. Apps., No. 97-956 (9/15/98), the North Carolina Court
of Appeals The North Carolina Court of Appeals is the only intermediate appellate court in the state
of North Carolina. It is composed of fifteen members who sit in rotating groups of three. Judges
serve eight-year terms and are elected in statewide non-partisan elections. Â held that income from
the return of funds from a company's overfunded pension plan Overfunded pension plan
A pension plan that has a positive surplus (i.e., assets exceed liabilities). Â was nonbusiness income.
Union Carbide is a New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts,
Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario
and the Canadian province of  corporation domiciled in Connecticut and qualified to do business in
North Carolina North Carolina, state in the SE United States. It is bordered by the Atlantic Ocean
(E), South Carolina and Georgia (S), Tennessee (W), and Virginia (N). Facts and Figures
Area, 52,586 sq mi (136,198 sq km). Pop. . The North Carolina Court of Appeals held that the income
received from a reversion of pension plan assets was nonbusiness income, and thus not
apportionable to North Carolina for corporate income tax purposes. Instead, it was allocable to the
state of domicile state of domicile n. the state in which a person has his/her permanent residence
or intends to make his/her residence, as compared to where the person is living temporarily. ,
because it arose from an extraordinary event not in the regular course of the company's trade or
business. The income did not arise from the management of the pension plan, but from the reversion
of excess funds as part of an attempt to avoid a hostile takeover Hostile Takeover
A takeover attempt that is strongly resisted by the target firm.
Notes:
Hostile takeovers are usually bad news, as the employee moral of the target firm can quickly turn to
animosity against the acquiring firm. . Therefore, the company was entitled to a full refund of tax
paid to North Carolina.
An Illinois Circuit Court determined that interest income from arbitrage activities was business
income subject to apportionment (Mitsubishi International, Inc. v. Dep't of Rev., Ill. Cir. Ct, No. 96 L
50393 (2/4/98)). The court concluded that arbitrage interest income received by a NewYork
corporation constituted business income subject to apportionment in Illinois, because it arose from
transactions in the regular course of the taxpayer's business and the acquisition, management and
disposition of the taxpayer's arbitrage property constituted integral parts of its business operations.
The interest income met both the transaction test and the functional test to determine business
income, and so was subject to apportionment.
The arbitrage group was subject to the unitary business principle because the taxpayer's activities
were highly integrated. The arbitrage activities were linked to the corporation's resources, including
use of the taxpayer's company name to make deals. Mitsubishi is a NewYork corporation
headquartered and commercially domiciled in New York. It engages in an international general
trading business composed of seven trading groups, with offices in 20 U.S. cities. The taxpayer
maintained offices in Illinois for four of its seven trading groups.
In Tennessee, investment earnings from a bond trading group were deemed to be business income,
but the corporation was not subject to the Tennessee corporate excise tax Excise Tax
1. An indirect tax charged on the sale of a particular good.
2. A penalty tax applied to ineligible transactions in retirement accounts. This penalty is assessed by
and paid to the IRS.
Notes:
1. , because the activities were not "unitary" (Louis Dreyfus Corp. v. Comm. of Rev., Tenn. Ct. Apps.,
No. 01-A-01-9505-CH-000218 (5/31/96)). In Louis Dreyfus, a corporation domiciled in Connecticut
was not subject to Tennessee corporate excise tax on investment earnings generated by its bond
trading group, because the activities of the bond trading group were not unitary with the
corporation's other commodities groups. Utilizing the "three unities test" to determine whether the
business was a unitary business, the Tennessee Court of Appeals examined the unity of ownership,
the unity of operation and the unity of a centralized executive force.
Pennsylvania decided that the gain from the sale of stock by a foreign corporation was apportionable
business income, because "the taxpayer failed to prove a factual background indicating that the
stock did not contribute to the corporation's business in the state" (Cadbury Schweppes, Inc. v.
Commonwealth Ct. of Pa., No. 353 ER. 1992 (6/5/98)).
Dividend and interest income from excess cash on hand was characterized as nonbusiness income
for the California corporation income and franchise tax (Legal Ruling 98-5, California Franchise Tax
Board The California Franchise Tax Board (FTB) collects state personal income tax and corporate
income tax of California.[1]History
In 1879 California adopted its state constitution which among many other programs created the
State Board of Equalization and the  (11/30/98)).
Planning Opportunities
Review and identify. Nonbusiness income is often categorized to include dividends, interest, rents,
royalties and certain capital gains. This is not always the case, however. It must first be determined
if (1) the asset generating the income was used in the taxpayer's regular trade or business and (2)
whether the acquisition, management and disposition of property constitute an integral part of a
taxpayer's trade or business.
In addition, when reviewing for nonbusiness income, focus on the following factors:
* The purpose for acquiring or holding the investment;
* The source of funds used to acquire the investment; and
* The use of the income generated from the investment.
States vary as to their definitions of business vs. nonbusiness; some follow UDITPA, while others do
not; some are "full apportionment" (and do not distinguish), while others may apply a transaction or
functional test. Double taxation, is a possibility. Each state's rules must be reviewed.
Watch for large and unusual transactions. Review transactions of a large and significant nature,
including the renting and leasing of buildings, sales of stock, sales of assets and extraordinary,
infrequent and irregular items of other income. States will often identify and challenge the character
and classification of such items as business or nonbusiness income, depending on whether there is a
tax benefit attached. Consider obtaining a ruling in advance from a state regarding its classification
of business vs. nonbusiness income.
Use case law to advantage. For example, for out-of-state businesses, losses should be apportioned to
North Carolina and other states adopting the functional test for infrequent or irregular activities.
(For a discussion of other business/nonbusiness income cases, see Boucher, "Current Corporate
Income Tax Developments," TTA TTA Telecommunications Technology Association (Korea)
TTA Teacher Training Agency (UK)
TTA Triangle Transit Authority (Raleigh/Chapel Hill/Durham, North Carolina, USA)Â , March 1999,
at pp. 180-182.)
FROM DAVID David, in the Bible
David, d. c.970 B.C., king of ancient Israel (c.1010-970 B.C.), successor of Saul. The Book of First
Samuel introduces him as the youngest of eight sons who is anointed king by Samuel to replace
Saul, who had been deemed a failure. Â L. HUIZENGA, CPA (Computer Press Association, Landing,
NJ) An earlier membership organization founded in 1983 that promoted excellence in computer
journalism. Its annual awards honored outstanding examples in print, broadcast and electronic
media. The CPA disbanded in 2000. , MST See micro systems technology. , CHARLOTTE, NC
COPYRIGHT 1999 American Institute of CPA's
No portion of this article can be reproduced without the express written permission from the
copyright holder.
Copyright 1999, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.
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