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* For a long time now, the RTA, Cook County and Chicago have been attempting to stop companies from avoiding paying sales tax revenues by setting up “sham” billing offices in low tax counties. They won today…
The Illinois Supreme Court on Thursday delivered a resounding blow to questionable tax strategies that allow businesses to minimize their sales tax burden in the state.
In a unanimous opinion, the court found that the widespread corporate practice of shifting the official point of purchase from the Chicago area to downstate counties with lower sales taxes inconsistent with state law.
* Hartney Fuel Oil Co. became the big test case. Hartney’s headquarters is in Cook County, but it sent purchase orders to a tiny “sales office” fax machine in downstate Mark, IL. From today’s Illinois Supreme Court opinion…
This shift from Forest View to Mark removed Hartney from the retail occupation tax rolls of Forest View, Cook County, and the RTA. This effected more than a shift in tax allocation; it effected a full removal from tax liability. It did not, however, remove Hartney from the enjoyment of services offered by the Local Governments.
* Hartney wasn’t alone, however. Tribune…
Saddled with some of the nation’s highest sales taxes, some Chicago area businesses have found a creative way to avoid them: They route purchases through offices in places like Kankakee and Channahon with lower sales taxes. Dozens of companies, from airlines and catalog houses to oil companies and computer purveyors, use the strategy to save money on purchases or make their pricing competitive.
The giant loophole exists because Illinois is one of the few states in which sales tax is applied where a purchase is accepted rather than where the product is delivered.
The Illinois Department of Revenue ruled that Hartney was avoiding taxation and had to pay back taxes totaling $23 million, which Hartney paid under protest and then filed suit.
* But the Supremes ruled today that Revenue did not follow applicable state law and Supreme Court precedent when it wrote its original rules, which Hartney used to set up its satellite “office” and avoid taxation.
The bottom line is that it doesn’t appear that companies can use this specific sort of tax avoidance scheme any longer, which is a big win for the high tax entities…
Just how much money is at stake is hard to track. In one instance, the RTA claimed United and American airlines, which set up offices in DeKalb County to buy jet fuel, deprived public transit agencies of nearly $300 million during the past seven years.
* As an aside, Hartney got its money back because it was merely following the DoR’s original rules, which it was entitled to do…
While we do not find Hartney’s approach to retail occupation tax liability consistent with the statute or this court’s precedent, the company did act consistently with the Department’s regulation published at the time.
* Greg Hinz…
The RTA, in a suit later joined by the city of Chicago and Cook County, is seeking $100 million in back payments from companies that it alleges avoided RTA-region sales taxes by routing orders through downstate Channahon and Cook County. That matter has been pending in court pending a ruling in the Hartney case.
It doesn’t appear they’ll get those back taxes, but it does look like the companies can no longer avoid paying the taxes.
* The Supremes, by the way, avoided discussion of whether setups like Hartney’s were shams…
The Local Governments have additionally argued that Hartney’s arrangement should be disregarded as a sham transaction. Analyzing a sham transaction requires assessment of the multiple steps of a transaction, with each being considered relevant, to determine whether economic reality accords with the formal arrangement. Commissioner v. Court Holding Co., 324 U.S. 331, 334 (1945). Because we conclude the regulation erroneously sited tax based solely on purchase order acceptance in the case at bar, the sham transaction doctrine is unavailing. Hartney structured its affairs in accordance with the regulation, by relocating its order-receiving function to a lower tax jurisdiction. Hartney’s arrangement was not without economic substance or economic effect. “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U.S. 465, 469 (1935)
posted by Rich Miller
Thursday, Nov 21, 13 @ 12:58 pm
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This will make Kankakee the next Gary, In. They have relied on this for an incredible amount of time and still haven’t been able to balance the budget.
Comment by So what? Thursday, Nov 21, 13 @ 1:04 pm
ISC to IDOR & IL businesses:
Go and sin no more!
Comment by RNUG Thursday, Nov 21, 13 @ 1:07 pm
Good for the supremes. Let’s keep taxes as low as possible, but if you want exposure to this labor pool, these consumers and this market…pay for it.
Comment by A guy... Thursday, Nov 21, 13 @ 1:12 pm
“The giant loophole exists because Illinois is one of the few states in which sales tax is applied where a purchase is accepted rather than where the product is delivered.”
Unless you are an individual buying a car. We’ve all been stuck with the tax of where we live all along. (yes, I know that online purchases which are taxed do not get hit with local taxes)
Comment by Chris Thursday, Nov 21, 13 @ 1:12 pm
+++ The giant loophole exists because Illinois is one of the few states in which sales tax is applied where a purchase is accepted rather than where the product is delivered. +++
Does this now mean a company could (if it made economic sense to do so) set up a recieving facily downstate to take deliveries, and then move the items into Cook County by its own internal delivery system, thus avoiding the higher taxes?
Comment by titan Thursday, Nov 21, 13 @ 1:23 pm
‘where a purchase is accepted rather than where the product is delivered.’ Would this have any similar effect on the on-line retailers of the world?
Comment by zatoichi Thursday, Nov 21, 13 @ 1:28 pm
I laugh out loud when people celebrate high taxes and a ruling from the Supreme court that backs up high taxes. Carry on Chicago and Cook county, glad your policies are working out well for you….in court.
Comment by John A Logan Thursday, Nov 21, 13 @ 1:36 pm
==I laugh out loud when people celebrate high taxes and a ruling from the Supreme court that backs up high taxes.==
I think the ruling backs up the proposition that companies can’t try and cheat the tax system. If they don’t like the taxes then they can move somewhere else.
Comment by Demoralized Thursday, Nov 21, 13 @ 1:39 pm
So John, tax cheats are OK with you?
Comment by Chavez-respecting Obamist Thursday, Nov 21, 13 @ 1:43 pm
Back to the drawing board.
Comment by dupage dan Thursday, Nov 21, 13 @ 1:45 pm
The opinion is on my “before the end of the day” reading list. One’s mind immediately turns to an international corporation with global headquarters in Chicago but significant facilities in a downstate community, such as, let’s just say…Decatur.
Comment by Dirty Red Thursday, Nov 21, 13 @ 1:55 pm
Illegal going forward…but no back liability. At least the Sup Ct didn’t bankrupt companies and towns today for employing tax avoidance strategies that were entirely legal under existing rules. DoR can’t just one day say, retroactively, that it decided to change its policies without changing the law or rules.
Comment by anon Thursday, Nov 21, 13 @ 1:55 pm
===The opinion is on my “before the end of the day” reading list.===
I pity you. It’s a tough read.
Comment by Rich Miller Thursday, Nov 21, 13 @ 1:56 pm
Dirty Red ,
think more of it like a company with a sales and distribution warehouse in cook county, where you pull up, select and load your items, but your credit card is processed in a small office in kankakee.
Also missing from the story, just to add fun…
Kankakee not only applied there lower tax rate, but would give a portion of the tax money back as an incetive.
So if they collect 5%, they would turn around and give back say 3%… after all it free money to them.
If the court had required the money to be paid to Revenue, then Kankakee would have had to return what it collected, including the amounts they returned! they had to rule the way they did or it would have wipde out these small commnities who dont have the money, and gave chunks of it back.
Comment by Ghost Thursday, Nov 21, 13 @ 2:01 pm
Titan, if the companies think they can save money that way, fine. But I’m guessing the transportation cost would be higher than just paying the two dollars.
Comment by Soccermom Thursday, Nov 21, 13 @ 2:02 pm
“At least the Sup Ct didn’t bankrupt companies and towns today for employing tax avoidance strategies that were entirely legal under existing rules. DoR can’t just one day say, retroactively, that it decided to change its policies without changing the law or rules.”
Could this be a harbinger of things to come when pension reform gets decided by the SC?
Comment by Mr. B.A. Thursday, Nov 21, 13 @ 2:06 pm
Let’s not forget that most companies don’t pay the sales tax. They pass it on to their customers. Also, when they’ve entered into sales tax abatement deals with towns like Kankakee, they get a large share of the sales tax that they collect. Just another way to take advantage of their customers.
Comment by GA Watcher Thursday, Nov 21, 13 @ 2:49 pm
- Demoralized - Thursday, Nov 21, 13 @ 1:39 pm:
==I laugh out loud when people celebrate high taxes and a ruling from the Supreme court that backs up high taxes.==
I think the ruling backs up the proposition that companies can’t try and cheat the tax system. If they don’t like the taxes then they can move somewhere else.
———————–
Agreed, demoralized. I’m a bigger supporter of low taxes than most, but this type of set-up cheats and distorts the system. Pick your spot, then pay your due.
Comment by Liandro Thursday, Nov 21, 13 @ 3:02 pm
so the RTA spent over 2 million dollars to end up with nothing but an opinion that the regulation needs to be fixed. That’s a win?
Comment by anon Thursday, Nov 21, 13 @ 3:57 pm
I was just glad to see the Supreme Court tell the Department of Revenue that they can’t go back and retroactively assess tax against companies that were folloiwng the Department’s own 40-year old regulation. If the Department didn’t like the results of their own regulation, then they should have tried for a change in the law, or changed the regulation–not retroactively disregard it and assess taxpayers who were in compliance with the regulation millions.
Comment by Just Sayin' Thursday, Nov 21, 13 @ 3:58 pm
The court got it right.
They get the benefits of the infrastructure, labor pool, and name/location of Chicago — all of which are built and supported in some way by the local government, and help their businesses significantly — and don’t pay for them. Modern Chicago and Illinois were built by better business leaders than these.
Just because it makes more money for the corporation, doesn’t automatically make it legal or the right thing to do.
IMHO, the greatest deterioration in the cultural values, ethics, and citizenship in this country, has occurred not among the general public. It has taken place among the leaders and cultures of large American corporations, since 1980. It coincided with the growth of mythical economic thinking and justification.
Comment by walkinfool Thursday, Nov 21, 13 @ 4:01 pm
Looks like JCAR will be busy over the next couple of months. The ruling could set a major precedent, though. I would be nervous if I were State Farm and Allstate after this. I know State Farm does a lot of their policy billing in Dallas, Texas. Those checks doen’t go to Bloomington. Brighter legal minds than me may be able to counter that or know how other companies get around the issue, but the ruling will impact some of these smaller communities and counties too.
Comment by woodchuck Thursday, Nov 21, 13 @ 4:43 pm
===I would be nervous if I were State Farm and Allstate after this===
Why? There’s no state sales tax on insurance.
Comment by Rich Miller Thursday, Nov 21, 13 @ 4:44 pm
So I guess the next question is - how much money will the legislature hand out to these particular corporations when they inevitably threaten to leave Illinois?
Comment by Lester Holt's Mustache Thursday, Nov 21, 13 @ 4:50 pm
Thanks for the clarification, Rich. It’s been a number of years since I had to deal with DOR statutes and regs.
Comment by woodchuck Thursday, Nov 21, 13 @ 5:04 pm
Some of these companies might move their transaction site to Indiana.
Comment by DuPage Thursday, Nov 21, 13 @ 6:12 pm
“There’s no state sales tax on insurance.”
Not at the moment. But if a service tax ever gets serious consideration …
Comment by RNUG Thursday, Nov 21, 13 @ 10:48 pm