Doing Business in Multiple States -When Does Your Company have to Register? Part II

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Division of Tax Base
Now, that you understand nexus and the difference between soliciting business and promoting it, it is critical to understand the background of how the states divide up the tax base. The Commerce Clause requires that a state may tax only that part of a corporation’s income that is fairly attributable to its income-producing activities in the state. There are three general approaches in handling this division of tax base. There are:

  • Separate accounting
  • Specific allocation
  • Formulary apportionment

Separate accounting is based on the premise that it is both possible and practical to isolate the taxable income of portions of a business that a corporation carries on within a state. Based on practical and theoretical flaws, separate accounting is rarely used.

Specific allocation assigns certain types of income to particular states using nonformulary rules. It is generally applied to income not related to the operational or unitary business of the taxpayer.

Formulary apportionment divides a taxpayer’s business income among the states in which it does business. A formula is used to generate an apportionment percentage that is based on the relative amount of a taxpayer’s in-state activities.

So Which Approach do the States Use?
There is an act called the Uniform Division of Income for Tax Purposes Act (UDITPA). UDITPA is a state tax model for allocating and apportioning income among states. Nearly half of the states with a corporate income tax have adopted UDITPA.

UDITPA has created three tests for determining the allocation and apportionment of income among states. They are:

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