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Subject:
Tax Liability for Delaware S-Corp with Pennsylvania Nexus
Category: Business and Money > Accounting Asked by: peachfuzz-ga List Price: $20.00 |
Posted:
29 Dec 2005 01:37 PST
Expires: 28 Jan 2006 01:37 PST Question ID: 610829 |
I have formed a Delaware S-Corporation for the purposes of operating an internet web hosting company. The company will have a physical office and mailing address within Delaware; customer support and billing is done from the DE office. The complication arises due to the fact that the best location for server colocation for my needs is in Pennsylvania. Thus, my company would likely own and operate its own servers in a colocation facility in PA. With company property (server equipment) physically located in PA, this would undoubtedly establish a nexus within Pennsylvania. This means that my Delaware corporation is subject to corporate income taxation in PA as well as in DE. Web hosting service in both PA and DE is non-taxable, so fortunately I don't have to worry about sales and use tax collection. My concern is more regarding corporate income taxation and other related fees. My two questions are the following: 1. With nexus established in PA, how would corporate income tax liability be allocated between these two states? That is, how would one determine what portion of corporate income would be taxed by PA and what portion taxed by DE, given that all the server equipment is in a PA colocation facility while the office is located in DE? (Customers purchase online and are located throughout the country) 2. http://www.lctjournal.washington.edu/Vol1/a005Royalty.html provides some interesting reading and makes me wonder - depending on the answer to #1 above, would it make sense to form a separate Pennsylvania corporation just for the purpose of owning the server equipment in the PA colocation facility, and leasing it to my Delaware Corporation? The above article seems suggest that owning physical propery out of state is what establishes business presence in that state. Whereas if you lease the servers located out of state, that alone is not sufficient to establish nexus with that state. If that is true in the case of PA and DE, then by leasing equipment from a separately formed PA corporation, the higher PA coprorate tax rate would be applicable only to the server lease income, and revenue from the actual DE-based hosting company would be taxable only in DE. |
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Subject:
Re: Tax Liability for Delaware S-Corp with Pennsylvania Nexus
From: business1234-ga on 23 Jan 2006 09:07 PST |
First of all forget the notion that you only will pay state income taxes on 100% of your income. The states each have their own tax codes and while they tend to mirror the federal code, each state has differences which means that you could end up paying tax two or three times. The Supreme Court has even upheld that result. The basic guideline is that states typically use a two or three factor test for apportioning income. The factors are sales, property and payroll. Sales in the state / sales everywhere Property in the state / property everywhere payroll in the state / payroll everywhere Calculate these three ratios, add them up an then divide by three. That is the apportionment ratio for your taxable income. The taxable income is usually your federal taxable income but each state makes different adjustments. I'm not specifically familiar with PA and DE so I don't know what factors they use. A couple things to watch out for. Most states tell you to exclude a factor if the numerator is zero and either double weigh another factor or just divide by two. Property is typically average property (1/1 + 12/31 / 2) but there are screwy rules if you rent. A couple of states make you assume that the value of your property is 8x the annual rent. Go to the state department of revenue for each state, download the the returns and read the instructions. The forms will pretty much tell you what the factors are. Last complicating factor is that some state make the S corp shareholder directly liable and others make the S corp itself liable. Some states (like Florida) exempt S corps from income taxation. Good luck. |
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