39-22-303.6–4 Taxable in Another State. Basis and Purpose. The bases of this rule are §§ 39-21-112, and 39-22-303.6, C.R.S.

The purpose of this rule is to provide guidance for determining whether a taxpayer is taxable in another state. Consistent with the General Assembly’s adoption of § 39-22- 303.6, C.R.S., these rules are intended to conform the state’s income tax laws to the Multistate Tax Commission’s model statute and regulation except when those model provisions are inconsistent with Colorado statute. See 2018 Colo. Sess. Laws, ch. 369, § 1(2). (1) General Rule. A taxpayer is subject to the allocation and apportionment provisions of § 39-22-303.6, C.R.S., if it has income from business activity that is taxable both within and without Colorado. A taxpayer's income from business activity is taxable without Colorado if the taxpayer, by reason of such business activity (i.e., the transactions and activity occurring in the regular course of a particular trade or business), is taxable in another state within the meaning of § 39-22-303.6(3)(c), C.R.S. (2) Applicable Tests. A taxpayer’s income is taxable in another state if it meets either one of two tests: (a) by reason of business activity in another state, the taxpayer is subject to one of the types of taxes specified in § 39-22-303.6(3)(c)(I), C.R.S., or (b) by reason of such business activity, another state has jurisdiction to subject the taxpayer to a net income tax, regardless of whether or not the state imposes such a tax on the taxpayer. (3) Producing Nonapportionable Income. A taxpayer is not taxable in another state with respect to a particular trade or business merely because the taxpayer conducts activities in that other state pertaining to the production of nonapportionable income or business activities relating to a separate trade or business. (4) Subject to Tax in Another State. A taxpayer is “subject to” one of the taxes specified in § 39-22-303.6(3)(c)(I), C.R.S., if it carries on business activities in a state and the state imposes such a tax thereon. Any taxpayer that asserts that it is subject to one of the taxes specified in § 39-22-303.6(3)(c)(I), C.R.S., in another state shall furnish to the Department upon its request evidence to support such assertion. The Department may request that such evidence include proof that the taxpayer has filed the requisite tax return in the other state and has paid any taxes imposed under the law of the other state; the taxpayer's failure to produce such proof may be taken into account in determining whether the taxpayer in fact is subject to one of the taxes specified in § 39-22-303.6(3)(c)(I), C.R.S., in the other state. (a) Voluntary Tax Payment. If the taxpayer voluntarily files and pays one or more of the taxes specified in § 39-22-303.6(3)(c)(I), C.R.S., when not required to do so by the laws of that state, or pays a minimal fee for the qualification, organization, or privilege of doing business in that state, but: (i) does not actually engage in business activity in that state, or (ii) engages in some business activity not sufficient for nexus, and the minimum tax bears no relationship to the taxpayer's business activity within such state, the taxpayer is not “subject to” one of the taxes specified in § 39-22-303.6(3)(c)(I), C.R.S. (A) Example: State A has a corporation franchise tax measured by net income for the privilege of doing business in that state. Corporation X files a return and pays the $50 minimum tax, although it carries on no business activity in State A. Corporation X is not taxable in State A. (b) The concept of taxability in another state is based upon the premise that every state in which the taxpayer is engaged in business activity may impose an income tax even though every state does not do so. In states that do not, other types of taxes may be imposed as a substitute for an income tax. Therefore, only those taxes enumerated in § 39-22- 303.6(3)(c)(I), C.R.S., that may be considered as basically revenue raising rather than regulatory measures shall be considered in determining whether the taxpayer is “subject to” one of the taxes specified in § 39-22- 303.6(3)(c)(I), C.R.S., in another state. (i) Example (i): State A requires all nonresident corporations which qualify or register in State A to pay to the Secretary of State an annual license fee or tax for the privilege of doing business in the state regardless of whether the privilege is in fact exercised. The amount paid is determined according to the total authorized capital stock of the corporation; the rates are progressively higher by bracketed amounts. The statute sets a minimum fee of $50 and a maximum fee of $500. Failure to pay the tax bars a corporation from utilizing the state courts for enforcement of its rights. State A also imposes a corporation income tax. Nonresident Corporation X is qualified in State A and pays the required fee to the Secretary of State but does not carry on any business activity in State A (although it may utilize the courts of State A). Corporation X is not “taxable” in State A. (ii) Example (ii): Same facts as Example (i) except that Corporation X is subject to and pays the corporation income tax. Payment is prima facie evidence that Corporation X is “subject to” the net income tax of State A and is “taxable” in State A. (iii) Example (iii): State B requires all nonresident corporations qualified or registered in State B to pay to the Secretary of State an annual permit fee or tax for doing business in the state. The base of the fee or tax is the sum of (1) outstanding capital stock, and (2) surplus and undivided profits. The fee or tax base attributable to State B is determined by a three factor apportionment formula. Nonresident Corporation X, which operates a plant in State B, pays the required fee or tax to the Secretary of State. Corporation X is “taxable” in State B. (iv) Example (iv): State A has a corporation franchise tax measured by net income for the privilege of doing business in that state. Corporation X files a return based upon its business activity in the state but the amount of computed liability is less than the minimum tax. Corporation X pays the minimum tax. Corporation X is subject to State A's corporation franchise tax. (5) Another State has Jurisdiction to Subject Taxpayer to a Net Income Tax. The second test, that of § 39-22-303.6(3)(c), C.R.S., applies if the taxpayer's business activity is sufficient to give the state jurisdiction to impose a net income tax by reason of such business activity under the Constitution and statutes of the United States. Jurisdiction to tax is not present when the state is prohibited from imposing the tax by reason of the provision of Public Law 86-272, 15 U.S.C., §§ 381–385. In the case of any “state,” as defined in § 39-22-303.6(1)(e) C.R.S., other than a state of the United States or political subdivision thereof, the determination of whether the “state” has jurisdiction to subject the taxpayer to a net income tax shall be made as though the jurisdictional standards applicable to a state of the United States applied in that “state.” If jurisdiction is otherwise present, that “state” is not considered as without jurisdiction by reason of the provisions of a treaty between that state and the United States. (a) Example: Corporation X is actively engaged in manufacturing farm equipment in State A and in Foreign Country B. Both State A and Foreign Country B impose a net income tax but Foreign Country B exempts corporations engaged in manufacturing farm equipment. Corporation X is subject to the jurisdiction of State A and Foreign Country B.