state tax exemptions and reform planning national intertribal tax alliance september 17, 2015

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State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

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Page 1: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

State Tax Exemptionsand Reform Planning

National Intertribal Tax AllianceSeptember 17, 2015

Page 2: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Welcome

Moderator: Aubrey Seffernick, Partner, Miller Nash Graham &

Dunn LLP

Panelists: James T. Meggesto, Partner, Holland & Knight LLP Mary Streitz, Partner, Dorsey Whitney LLP F. Michael Willis, Partner, Hobbs, Strauss, Dean &

Walker LLP

Page 3: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Introduction

Survey of the tools a Tribe can use to resolve taxing jurisdiction issues with the state

Whether it be asserting an immunity, resolving a “grey area,” or pushing for a legislative exemption as good public policy

Page 4: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Overview

Legislation: the carpenter’s pencil Litigation: the hammer Tribal-State Compacts: the level Business Structures: the monkey wrench Agency letter rulings and interpretations: the

chisel

Page 5: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Legislation When is legislation a good tool? Current issues being addressed through

legislative efforts:– Federal

• Authority to issue tax-exempt debt• Income of minors• Streamline sales tax collection• Tribal charities classified as public charities

– State• Taxation of off-reservation property• Areas with strong public policy implications

Page 6: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Legislation, cont.

Case Study:– HB 1287 in Washington State regarding fee land owned by

the tribe– Original Bill: expand definition of “essential governmental

services” to include “economic development” for property tax exemption on land owned in fee by a tribe.

– Bill as enacted: PILT provision added; cut-off & sunset added

– Legal Challenge: King County Superior Court declared the PILT provision unconstitutional holding that the PILT is a property tax and, as such, violates the uniformity provision of the State Constitution.

Page 7: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Litigation

When is litigation the best or only option? What can a tribe do to prepare a case for

litigation? What are some issues we expect will only be

resolved through litigation? Examples:– AUTO v. State– Tulalip Quil Ceda Village

Page 8: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Tribal-State Compacts

What issues are ripe for state tribal agreements?

What are some of the issues that will bring the state to the table?– Enforcement issues– Tax parity– Collection from non-Indians– Uniform regulatory structure

Page 9: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Tribal-State Compacts, cont.

Examples:– Fuel compacts– Cigarette tax compacts– Liquor tax compacts– New: HB 2000 Washington State Cannabis Compacts

Page 10: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Business Structure

What tax consequences can be avoided through careful business planning or deal structuring?– Tribe itself– Tribal corporation– Section 17 corporation– State entity with majority tribal ownership

Page 11: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Agency Rulings

What issues may be chipped away at through negotiations with state revenue or other agencies?

Examples of resolution that might be reached through a state revenue department:– Interpretive statement/FAQ’s– Letter Rulings: e.g. applying Bracker to facts a tribe

offers– Settlement for a specific assessment – Closing Agreement - Minimal burdens analysis

Page 12: State Tax Exemptions and Reform Planning National Intertribal Tax Alliance September 17, 2015

Agency Rulings, cont.

What is the scope of the agency’s authority?

Can the state agency assist the tribe with resolving issues with a local jurisdiction?

Can the state agency provide certainty for business partners or vendors?