Tax 2.62(4)(b)5.5. Intercorporate use of proprietary materials, including trade names, trademarks, service marks, patents, copyrights, and trade secrets. Tax 2.62(4)(c)(c) Unity of use. Unity of use is evidenced generally by centralized management or use of centralized policies. Factors that indicate unity of use include: Tax 2.62(5)(5) Factors considered by u.s. supreme court. Since, as provided in s. 71.255 (1) (n), Stats., the definition of “unitary business” shall be construed to the broadest extent permitted by the U.S. Constitution, case law provides further guidance to determine whether a unitary business exists. Subsections (3) and (4) are reflective of that case law. Factors that have been considered by the U.S. Supreme Court to be determinative of a unitary business include: Tax 2.62(5)(b)(b) A concrete relationship between the out-of-state and the in-state activities that is established by the existence of the unitary business (Container Corp. of America v. Franchise Tax Bd. of California, 463 U.S. 159, 167, 103 S. Ct. 2983, 2941 (1983)). Tax 2.62(5)(e)(e) Some sharing or exchange of value not capable of precise identification or measurement — beyond the mere flow of funds arising out of a passive investment or a distinct business operation (Container, 463 U.S. at 166, 103 S. Ct. at 2940). Tax 2.62(6)(6) Presumptions. The presumptions in pars. (a) to (g) apply when determining whether participants in a commonly controlled economic enterprise are considered a unitary business. Any of these presumptions may be rebutted by the taxpayer or by the department. However, the noncontrolling factors in par. (h) may not be used to rebut these presumptions. Tax 2.62(6)(a)(a) Horizontal integration. An entity or commonly controlled group of entities is presumed to be engaged in a unitary business when all of its activities are in the same general line of business. Tax 2.62(6)(b)(b) Vertical integration. An entity or commonly controlled group of entities is presumed to be engaged in a unitary business when its various divisions, segments, branches, or affiliates are engaged in different steps in a vertically structured enterprise. Tax 2.62(6)(c)(c) Centralized management. An entity or commonly controlled group of entities that might otherwise be considered as engaged in more than one unitary business is presumed to be engaged in one unitary business when there is strong central management coupled with the existence of centralized departments or affiliates for such functions as financing, advertising, research and development, or purchasing. Tax 2.62(6)(d)(d) Different business segments. An entity operating different business segments within the organizational structure of the single business entity is presumed to be engaged in a single unitary business with respect to the business segments. Tax 2.62(6)(e)1.1. Except as provided in subd. 2., when a corporation acquires another corporation so that the acquired corporation is a member of a commonly controlled group for the first time, it shall be presumed that the acquiring and acquired corporations are not engaged in a unitary business for the purchaser’s taxable year that includes the acquisition. If the purchaser is already a combined group member, the taxable year that includes the acquisition is the taxable year of the combined group. Tax 2.62(6)(e)2.2. The presumption against unity in subd. 1. shall not apply if, immediately preceding the acquisition, the acquiring and acquired corporations were engaged in a unitary business apart from being in the same commonly controlled group, or if the designated agent of the combined group has properly made the controlled group election as provided in s. Tax 2.63. Tax 2.62(6)(e)3.3. If either the taxpayer or the department rebuts the presumption in subd. 1., the provisions of s. 71.255 (9), Stats., relating to part-year members of a combined group, shall apply. Tax 2.62(6)(f)(f) Newly formed corporations. Where a corporation or more than one corporation forms, or has formed, a new corporation, it shall be presumed that the formed corporation is engaged in a unitary business with the forming corporation or corporations from the date of its formation. Tax 2.62(6)(g)(g) Refusal to provide information. The department’s determination of whether an entity is engaged in a unitary business is presumed to be correct if the taxpayer unreasonably refuses to provide information pertinent to the determination of a unitary business. Tax 2.62(6)(h)(h) Noncontrolling factors. The following factors may not negate the presumptions in pars. (a) to (g): Tax 2.62(6)(h)1.1. The use of arms-length pricing for sales, exchanges, or transfers between entities (Exxon Corp. Tax 2.62(6)(h)2.2. The fact that a business uses a separate accounting system, including separate accounting by division, by entity, by geographical area, by business function, or by business segment. Tax 2.62(7)(a)(a) A passive holding company that is in a commonly controlled economic enterprise and holds intangible assets that are used by the enterprise in a unitary business shall be deemed to be engaged in the unitary business, even if the holding company’s activities are primarily passive. Tax 2.62(7)(b)(b) A passive parent holding company that directly or indirectly controls one or more operating company subsidiaries engaged in a unitary business shall be deemed to be engaged in a unitary business with the subsidiary or subsidiaries, even if the holding company’s activities are primarily passive. Tax 2.62(8)(8) Pass-through entities. For purposes of pars. (a) and (b), “pass-through entity” includes a partnership, limited liability company treated as a partnership, tax-option corporation, estate, or trust, but does not include corporations treated as real estate investment trusts, regulated investment companies, real estate mortgage investment conduits, or financial asset securitization investment trusts. Tax 2.62(8)(a)(a) For purposes of determining the scope of the unitary business, any business conducted by a pass-through entity that is controlled directly or indirectly by a corporation shall be treated as conducted by the corporation to the extent of the corporation’s distributive share of the pass-through entity’s income, regardless of the percentage of the corporation’s ownership interest. Tax 2.62(8)(b)(b) Any business conducted directly or indirectly by one corporation is unitary with that portion of a business conducted by another corporation through its direct or indirect interest in a pass-through entity if the requirements of s. 71.255 (1) (n), Stats., are otherwise met with respect to the corporations’ interests in the pass-through entity and the corporations are members of the same commonly controlled group. Tax 2.62 HistoryHistory: EmR1001: emerg. cr. eff. 1-15-10; CR 09-064: cr. Register April 2010 No. 652, eff. 5-1-10; correction in (8) (intro.) and renumbering of (7) (a), (b), (8) (a) and (b) made under s. 13.92 (4) (b) 1. and 7., Stats., Register April 2010 No. 652; CR 13-078: am. (2) (d) 1. Register April 2014 No. 700, eff. 5-1-14; CR 19-141: am. (2) (d) 1. Register September 2020 No. 777, eff. 10-1-20. Tax 2.62 AnnotationCross References: See s. Tax 2.60 for definitions that relate to this section. See s. Tax 2.61 (2) for more information on determining whether corporations are required to use combined reporting. See s. Tax 2.63 for more information on the controlled group election.
Tax 2.63Tax 2.63 Controlled group election. Tax 2.63(1)(1) Scope. Section 71.255 (2m), Stats., allows a commonly controlled group of corporations to elect to include every member of the commonly controlled group in a single combined group for combined reporting purposes. This section provides rules relating to making the election, continuity of the election, and limitations of the election. Tax 2.63(2)(2) Making the election. Preapproval by the department is not required to make the election. The designated agent of the combined group shall make the election on behalf of the group as described in this subsection. Paragraph (c) provides rules relating to identifying the designated agent in cases where a commonly controlled group consists of corporations that previously filed as more than one combined group. Tax 2.63(2)(a)(a) Time period for making election. The designated agent shall make the election on an original, timely filed combined return which includes all members of the commonly controlled group. A return shall be considered timely if it is filed by the designated agent on or before the due date of the return, including applicable extensions. If the return is timely filed without an extension, the designated agent may make the election by filing an amended combined return on or before the end of the automatic 7-month extension period provided in s. 71.24 (7) or 71.44 (3), Stats. A return filed after the end of the automatic 7-month extension period, whether an original or amended return, may not constitute a valid controlled group election for the taxable year to which the return applies, although an election may be filed for a subsequent taxable year subject to the limitation in sub. (3) (c). Tax 2.63(2)(b)1.1. For the first year the designated agent makes the election, the designated agent shall check a designated line of the combined return to indicate that a controlled group election is in effect. Tax 2.63(2)(b)2.2. For the first year the designated agent makes the election, the designated agent shall include a statement with the combined return which lists every corporation that is a member of the commonly controlled group, and indicates that each corporation has agreed to be bound by the election and that the election shall apply to any member that subsequently enters the group. Tax 2.63(2)(c)1.1. If a commonly controlled group consists of corporations that previously filed as more than one combined group, the controlled group election creates a new combined group. For purposes of application of loss carryforwards and research credits under s. Tax 2.61, each former combined group included in the new combined group is a subgroup as described in s. Tax 2.61 (9) (e) 1. and the corporations within each subgroup are eligible to share loss carryforwards and research credits from taxable years prior to the election with all the members of that subgroup, to the extent sharing would otherwise be allowed under s. Tax 2.61 (6) (c), (9), and (10). Tax 2.63(2)(c)2.2. A new combined group described in subd. 1. shall appoint the designated agent of one of the former combined groups to be the designated agent, and the provisions of s. Tax 2.65 apply to that designated agent. The corporation that files the first combined return under the election shall be deemed the appointed designated agent for the new combined group. Tax 2.63(3)(a)(a) Ten-year period. The controlled group election is binding for and applicable to all members of the commonly controlled group for the taxable year for which the election is made and for the next nine taxable years. The election is also binding on any corporations that join the commonly controlled group during the period the election is in effect. Any corporation that departs the commonly controlled group is not bound by the election for the taxable years after its departure from the group, except if par. (b) applies or if the corporation rejoins the commonly controlled group. Tax 2.63(3)(b)1.1. When a merger or acquisition occurs between two combined groups where the acquiring group has not made the controlled group election but the target group has made the controlled group election, the controlled group election of the target group terminates on the date of the transaction. However, the designated agent of either the acquiring group or the target group may make the controlled group election with respect to all corporations that are in its commonly controlled group as determined after considering the effect of the merger or acquisition, provided the requirements in sub. (2) are met and the election is not precluded by par. (c). Tax 2.63(3)(b)2.2. When a merger or acquisition occurs between two combined groups where the acquiring group has made the controlled group election but the target group has not made the controlled group election, all corporations in the commonly controlled group as determined after considering the effect of the merger or acquisition are bound by the acquirer’s controlled group election. Tax 2.63(3)(b)3.3. When a merger or acquisition occurs between two combined groups that have both made the controlled group election, the expiration date of the controlled group election for the entire commonly controlled group as determined after considering the effect of the merger or acquisition is the expiration date of the acquirer’s controlled group election. Tax 2.63(3)(b)4.4. When a commonly controlled group that has made the controlled group election divests stock of one or more subgroups of members so that the subgroups are no longer in the commonly controlled group, those subgroups are no longer bound by the controlled group election, except if both the book value of total assets of a subgroup and its total fair market value are greater than those of the divesting group, then the subgroup is bound by the controlled group election and the controlled group election of the divesting group terminates on the date of the transaction. Tax 2.63(3)(c)1.1. After the ten-year period described in par. (a), the designated agent may renew the election for another ten taxable years, without prior written approval from the department. The renewal shall be made on an original, timely filed return for the first taxable year after completion of the ten-year period. Except as provided in subd. 3., the requirements for a renewal of an election are the same as for making the original election as described in sub. (2). Tax 2.63(3)(c)2.2. If the election is not timely renewed as provided in subd. 1., the election is considered to be revoked by the designated agent. In the case of a controlled group election that is not timely renewed, a new election may not be permitted in any of the next three taxable years. Tax 2.63(3)(c)3.3. The designated agent may renew the election on an amended return filed after the end of the automatic 7-month extension period provided in s. 71.24 (7) or 71.44 (3), Stats., only if the original return was consistent with the controlled group election remaining in place and that the failure to comply with the requirements of sub. (2) was due to oversight or mistake. Tax 2.63 HistoryHistory: EmR1001: emerg. cr. eff. 1-15-10; CR 09-064: cr. Register April 2010 No. 652, eff. 5-1-10; CR 12-011: r. (4) Register July 2012 No. 679, eff. 8-1-12; correction in (3) (a), (b) 1. under s. 13.92 (4) (b) 7. Register July 2012 No. 679. Tax 2.63 AnnotationCross References: See s. Tax 2.60 for definitions that relate to this section. See s. Tax 2.61 (2) (b) for more information on the effect of the controlled group election. See s. Tax 2.65 for more information on the duties of the designated agent. See s. Tax 2.67 for more information on combined returns.
Tax 2.64Tax 2.64 Alternative apportionment for combined groups including specialized industries. Tax 2.64(1)(1) Scope. Section 71.255 (5) (a), Stats., provides that a combined group is generally required to use the modified sales factor method to apportion its combined unitary income. However, s. 71.255 (5) (b), Stats., provides that a qualifying combined group may petition the department to use an alternative apportionment method. This section provides rules relating to the eligibility requirements, continuity, and limitations of this privilege. Tax 2.64(2)(a)(a) Qualifying combined group. A qualifying combined group is a combined group for which 30 percent or more of the combined unitary income would, in the absence of combined reporting, be required to be apportioned using more than one factor under a method described in ss. Tax 2.46, 2.465, 2.47, 2.475, 2.48, 2.50, or 2.502. Tax 2.64(2)(b)(b) Requirements for petition. The designated agent of the combined group requesting an alternative apportionment method shall file a petition no less than 60 days before filing the first original, timely filed return using the alternative method. If a return using the modified sales factor method has already been timely filed without an extension, the designated agent may file an amended return using the alternative method if it files a petition no less than 60 days before the end of the automatic 7-month extension period provided in ss. 71.24 (7) or 71.44 (3), Stats., as applicable, and the petition is approved by the department. The petition shall include the following: Tax 2.64(2)(b)1.1. The full name, address, and federal employer identification number of each member of the combined group. Tax 2.64(2)(b)2.2. The combined group’s taxable year for which the alternative apportionment method as requested would begin to be effective. Tax 2.64(2)(b)3.3. A description of the alternative apportionment method requested. Tax 2.64(2)(b)4.4. A complete and precise statement of the reasons for the modification requested, including why the modified sales factor method would result in an unfair representation of the degree of unitary business activity in this state. This statement shall provide clear and convincing evidence of its assertions. Tax 2.64(2)(b)5.5. A calculation of the combined group’s tax liability for the first taxable year to which the petition applies and for the previous taxable year, using the apportionment method prescribed in s. 71.255 (5) (a), Stats., for both years. For the previous taxable year’s computation, this amount shall be computed as if a combined report including those same corporations were required in the previous taxable year, even if it was before s. 71.255, Stats., was in effect. Tax 2.64(2)(b)6.6. A calculation of the combined group’s tax liability for the first taxable year to which the petition applies and for the previous taxable year, similar to the calculation in subd. 5., but using the requested apportionment method instead of the modified sales factor method. Tax 2.64(2)(b)7.7. A calculation of each combined group member’s tax liability for the first taxable year to which the petition applies and for the previous taxable year, similar to the calculations in subds. 5. and 6., computed as if each corporation were not a member of the combined group and using the method prescribed by ss. Tax 2.39, 2.45, 2.46, 2.465, 2.47, 2.475, 2.48, 2.49, 2.495, 2.50, or 2.502, as applicable to each corporation. Tax 2.64(2)(b)8.8. A statement as to whether any combined group member is being audited by the department at the time of the petition. Tax 2.64(2)(c)(c) Limitation. The department may not grant a taxpayer’s petition for an alternative apportionment method if the alternative method would result in a lower tax liability than the sum of the tax liabilities of the combined group members computed as if they were not members of a combined group and using the apportionment method prescribed by ss. Tax 2.39, 2.45, 2.46, 2.465, 2.47, 2.475, 2.48, 2.49, 2.495, 2.50, or 2.502, as applicable to each corporation. Tax 2.64(2)(d)1.1. The petition shall be approved by the department in writing. The department shall approve or reject the petition within 45 days after receiving it. However, failure of the department to act within 45 days or acceptance of a return using the alternative apportionment method does not constitute approval of the petition or method used. The department may, after receipt and review of the petition, require additional information necessary to determine whether the modified sales factor method does not fairly represent the degree of unitary business activity in this state. If the department does not have all the required information to approve the petition, the 45-day period described in this paragraph is suspended until the information is provided. Filing of a petition does not affect the accrual of interest on underpayment of estimated taxes. Tax 2.64(2)(d)2.2. If the designated agent timely files a petition as described in par. (b) but does not receive an order from the department approving or rejecting the petition before the due date of the return, the designated agent must file the return using the modified sales factor method. If the department subsequently approves the petition, the designated agent may amend the return using the approved method, in which case the amended return must contain the attachments described in par. (e). Tax 2.64(2)(e)(e) Attachments to return. For each combined return on which the alternative apportionment method is used, the designated agent shall include the following documentation with the return: Tax 2.64(2)(e)1.1. A copy of the department’s written approval for the alternative apportionment method. Tax 2.64(2)(e)2.2. A calculation of the combined group’s tax liability computed as if it used the modified sales factor method instead of the alternative apportionment method. Tax 2.64(2)(e)3.3. A calculation of each combined group member’s tax liability for the taxable year included in the combined return computed as if each corporation were not a member of the combined group and using the apportionment method prescribed by ss. Tax 2.39, 2.45, 2.46, 2.465, 2.47, 2.475, 2.48, 2.49, 2.495, 2.50, or 2.502, as applicable to each corporation. Tax 2.64(3)(a)1.1. If the department approves the alternative apportionment method, the combined group engaged in that unitary business shall continue to use the alternative apportionment method for six taxable years following the first year for which the alternative method was approved, except as provided in par. (b). Tax 2.64(3)(a)2.2. No later than 60 days before filing the first return for a period subsequent to the expiration of the seven-year period in subd. 1., the designated agent of the combined group shall file a new petition with the department in order to continue using the alternative apportionment method. The new petition is subject to the same requirements as the original petition except that the designated agent shall include the calculations described in sub. (2) (b) 5. to 7. for the first year to which the renewed election applies and each of the years to which the previous election applied.
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