st 21 Annual IL Statewide APA Conference Thursday, August 21, 2014 4:05 – 5:35 Boiling Over the Updates for Multi-State Taxation Vicki M. Lambert, CPP The Payroll Advisor www.thepayrolladvisor.com 21st Annual IL Statewide APA Conference – August 21-22, 2014 About the Speaker Vicki M. Lambert, CPP, is President and Academic Director of The Payroll Advisor, a firm specializing in payroll education and training. For more information about the firm go to www.thepayrolladvisor.com. As an adjunct faculty member at Brandman University, Ms. Lambert is the creator and instructor for the Practical Payroll Online payroll training program, which is approved by the APA for recertification credits. ©2014 The Payroll Advisor 3 What Is Our Focus For Today? List of all taxes required by states Income SUI SDI Local Following the IRS Code—where the states stand Supplemental Taxation Determining State Withholding Liability Resident Qualifications ©2014 The Payroll Advisor 4 What Is Our Focus For Today? Reciprocal Agreements Resident vs. Nonresident Withholding Allowance Certificates 4 Factor Test for SUI Handling SIT & SUI for Multistate employees ©2014 The Payroll Advisor 5 State Income Tax Most employers are required to withhold state income tax from employee’s wages Alaska, Florida, Nevada, New Hampshire, South Dakota, Texas, Washington & Wyoming have no state income tax Tennessee does not require income tax withholding ©2014 The Payroll Advisor 6 State Unemployment Insurance State Unemployment laws are largely dictated by the Federal Unemployment Tax Act requirements States do vary in their tax structure States vary on taxable wage bases Employer rates vary not only by state but by industry Some states have employee tax ©2014 The Payroll Advisor 7 States with Local Tax Requirements WA MT ME ND VT MN OR NH ID WI SD NY WY RI CT MI PA IA NE NV OH IL UT MD WV KS VA KY MO NC TN AZ OK NM AR SC MS AL GA TX LA FL Has local taxation AK HI NJ DE IN CO CA MA State Disability Insurance State program to provide income when an employee is unable to work due to illness or injury 5 states have mandatory SDI programs California, Hawaii, New Jersey, New York and Rhode Island (also Puerto Rico) Can be state plan or insurance plan ©2014 The Payroll Advisor 9 Types of Disability Programs California-State Plan Also allows self insured plans Employee funded—Percentage of taxable wage base Also has paid family leave included Hawaii State plan for unemployed workers or whose employers have gone bankrupt Private or self insurance plan otherwise Hawaii has workers paying ½ the cost up to 0.5% of employee’s weekly wages ©2014 The Payroll Advisor 10 Types of Programs New Jersey Private plans permitted if meet requirements Otherwise state plan Employer and employee funded Percentage of taxable wage base Has Family Leave Insurance New York Provided through state insurance fund, private insurance or self-insurance can deduct up to 60 cents per week for State Fund insurance premiums from employee’s wages Rhode Island State plan Employee funded Percentage of taxable wage base Paid Family Leave as of 1-1-14 ©2014 The Payroll Advisor 11 Are You an Employer In NY for TDI? An employer who has had in New York State employment one or more employees on each of at least 30 days in any calendar year shall be a "covered employer" subject to the Disability Benefits Law after the expiration of four weeks following the 30th day of such employment (WCL §202). These 30 days of employment need not be consecutive days but must be work days of employment in one calendar year. ©2014 The Payroll Advisor 12 Local Taxes Some are paid by the employee, some the employer and some are levied on both the employee and employer. However, not all are deducted from the employee’s wages but are still owed by the employer. Most are based on the payroll in some way. May require determination of coverage such as county the employee lives in ©2014 The Payroll Advisor 13 Could Include Employer Expense Tax Chicago, Illinois-recinded License Fee Louisville and/or Jefferson County, Kentucky Earned Income taxes Wilmington, Delaware Pennsylvania’s “Act 32” ©2014 The Payroll Advisor 14 Could Include Income Tax Maryland Counties and Baltimore City (Pennsylvania residents watch out too!) Detroit, Michigan New York, New York Ohio (can’t list them all—over 500!) County taxes Indiana—need I say more! ©2014 The Payroll Advisor 15 Could Include Payroll Tax Newark, New Jersey School District taxes State of Ohio Occupational Privilege tax Aurora, Colorado ©2014 The Payroll Advisor 16 Could Include… Transportation taxes Tri Metropolitan Transit District, Oregon Local Services Tax (Emergency and Municipal Services Tax) (Occupational and Privilege Tax) Pennsylvania Municipalities or school districts Workers Compensation Tax Washington State ©2014 The Payroll Advisor 17 Could Include New Jersey-New York Waterfront Payroll Tax Modified Business Tax for Nevada Metropolitan Commuter Transportation Mobility Tax (MCTMT)—NY Court Upheld ©2014 The Payroll Advisor 18 Following the IRS Code Majority of the states have adopted a policy that states the withholding requirements are the same as the federal income tax withholding CA, MS, NJ and NM have their own code Other states follow a version of the IRC The question is which version of the IRC ©2014 The Payroll Advisor 19 States vs. IRC The states can follow the current version of the IRC So if IRC changes, state changes automatically Some states follow the IRC but only as of a certain date. So changes made after that date are not valid in that state. State legislature must update the code while in session. Areas to watch: health insurance for nondependent children All states match federal but some exceed it—Watch NJ Domestic partners and health insurance: DOMA ruling changes everything! ©2014 The Payroll Advisor 20 States vs. IRC The states can follow the current version of the IRC. These include: Alabama, Connecticut, Delaware, DC, Illinois, Indiana, Kansas, Louisiana, Maryland, Michigan, Missouri, Montana, New York (with exceptions), North Dakota, Oklahoma, Rhode Island, and Utah So if IRC changes, state changes automatically ©2014 The Payroll Advisor 21 Some States Date the IRC (especially true due to recent legislative activities) Some states follow the IRC but only as of a certain date. So changes made after that date are not valid in that state. For Example: January 1, 2014: Georgia December 31, 2013: North Carolina—New January 2, 2013: Virginia January 1, 2013: Idaho and Iowa December 31, 2013: Hawaii, Oregon, Maine, and South Carolina January 1, 2012: Arizona ©2014 The Payroll Advisor 22 Some States Date the IRC (especially true due to recent legislative activities) March 7, 2011: Ohio January 2, 2013: Arkansas April 5, 2010: Nebraska Jan 1, 2005: Massachusetts—watch for transit passes! Jan 1, 1997: Pennsylvania (may have sections with different dates) Or they pick a specific time frame or date: Minnesota: April 14, 2014—New Vermont: Taxable year 2013—New ©2014 The Payroll Advisor 23 Supplemental Taxation Supplemental wages are wages paid in addition to the employee’s regular wages. These include bonuses, overtime, accumulated sick leave payouts, severance pay, awards, prizes, retro pay increases and back pay States will use a certain percentage to tax or require aggregate method http://www.payroll-taxes.com/state-tax ©2014 The Payroll Advisor 24 Supplemental Taxation Methods by State WA MT ME ND VT MN OR NH ID WI SD NY WY RI CT MI PA IA NE NV OH IL UT MD WV KS MO NJ DE IN CO CA MA VA KY NC TN AZ OK NM AR SC MS AL GA TX LA FL Aggregate method only Multiple percentages for income tax AK HI No state income tax Flat rate percentage Multiple percentages for supplemental wages Determining State Withholding Liability State laws vary somewhat in their definitions of “employer” subject to withholding requirements. Some follow federal definitions while others have their own. Some common definitions include: Does business within the state Pays wages for services to one or more persons whose services are rendered in the state Maintains an office or other place of business within the state Derives income from, or takes orders within the state ©2014 The Payroll Advisor 26 Definition of Resident Usually set forth in the state’s income tax laws Generally: someone who maintains a place of abode or live in the state for a certain period of time Oklahoma: A resident is anyone domiciled or who maintains a permanent place of abode in Oklahoma and spends more than a total of seven months of the taxable year in the state. ©2014 The Payroll Advisor 27 Reciprocal Agreements A number of states have entered into reciprocal agreements with other states to ensure that employees who work and reside in different states are not subject to multiple withholding or taxation The agreements specify that employers should withhold income taxes on a nonresident employee’s wages only for the worker’s home state and that such employee’s wages are not subject to the income tax rules of the state where the wages were earned Watch out for local taxes usually do not apply There can be “special” agreements as well ©2014 The Payroll Advisor 28 Status of Reciprocal Agreements WA MT ME ND VT MN OR NH ID WI SD NY WY RI CT MI PA IA NE NV OH IL UT MD WV KS MO NJ DE IN CO CA VA KY NC TN AZ OK NM AR SC MS AL GA TX LA FL AK Has reciprocal Agreements No reciprocal agreements No state income tax MA Allows or has special arrangements HI Reciprocal Agreement Chart State Reciprocal Agreements With: Illinois Iowa, Kentucky, Michigan & Wisconsin Indiana Kentucky, Michigan, Ohio, Pennsylvania & Wisconsin Iowa Illinois Illinois, Indiana, Michigan, Ohio, Virginia, West Virginia & Wisconsin Maryland D.C., Pennsylvania, Virginia & West Virginia Michigan Illinois, Indiana, Kentucky, Minnesota, Ohio, & Wisconsin Montana Michigan & North Dakota North Dakota New Jersey North Dakota Ohio Kentucky Minnesota State Pennsylvania Reciprocal Agreements With: Pennsylvania Minnesota & Montana Indiana, Kentucky, Michigan, Pennsylvania & West Virginia Indiana, Maryland, New Jersey, Ohio, Virginia & West Virginia Virginia Kentucky, District of Columbia, Maryland, West Virginia and Pennsylvania West Virginia Kentucky, Maryland, Ohio, Pennsylvania & Virginia Wisconsin District of Columbia ©2014 The Payroll Advisor Illinois, Indiana, Kentucky & Michigan Maryland and Virginia 30 For Example: IL has agreement with WI Resident of WI works in IL but does not want IL tax taken out— completes Form IL-W-5-NR—NO IL tax is withheld Employer may but IS NOT required to withhold for WI ©2014 The Payroll Advisor 31 For Example 2: WI has agreement with IL Resident of IL works in WI but does not want WI tax taken out— completes Form W-220—NO WI tax is withheld Employer may but IS NOT required to withhold for IL ©2014 The Payroll Advisor 32 Resident vs. Nonresident Resident: generally must have state income tax withheld from all payments not specifically exempted, including wages for services performed outside the state Nonresident: compensation is subject to withholding only to the extent it is earned within the state Sometimes states will allow residents to use credit for other state against tax liability Example: CA and AZ ©2014 The Payroll Advisor 33 Arizona Example An employer must withhold Arizona tax from wages paid for services performed within Arizona regardless of whether the employee is a resident or nonresident of Arizona. However, there are two exceptions to the general mandatory withholding requirements for nonresident employees temporarily performing services for their employer in Arizona. Although a nonresident employee may be exempt from Arizona income tax withholding, the employee may be required to file a nonresident Arizona income tax return if the employee meets the filing requirement. ©2014 The Payroll Advisor 34 Arizona… An employer may not have to withhold Arizona tax from wages paid to a nonresident performing services in Arizona if: The employee is physically present in Arizona for less than 60 days in a calendar year for the purpose of performing a service that will benefit the employer; AND The employer is an individual, fiduciary, partnership, corporation or limited liability company having property, payroll and sales in Arizona, or of a related entity having more than 50% direct or indirect common ownership. ©2014 The Payroll Advisor 35 Arizona… Additionally, an employer may not have to withhold Arizona tax from wages paid to a nonresident performing services in Arizona if the individual would be allowed an income tax credit for taxes paid to his or her state of residence under A.R.S. § 43-1096. This exemption applies to nonresident employees who are residents of, or domiciled in, California, Indiana, Oregon, or Virginia. ©2014 The Payroll Advisor 36 Arizona Example that Meets the Criteria for not Withholding AZ SIT Franks and Beans Inc. is based in CA. It is the common parent of Weiner Corporation. Franks and Beans does not have property, payroll and sales in AZ. Weiner does have property, payroll and sales in AZ. Larry, a nonresident of AZ is an employee of Franks and Beans. Larry performs services for Franks and Beans in Arizona for 55 days. ©2014 The Payroll Advisor 37 Another Example: Nebraska Nonresidents whose wages are subject to federal withholding and who work in Nebraska are subject to the same withholding on their entire wages as that used for Nebraska residents. ©2014 The Payroll Advisor 38 Connecticut Example Dec, 2009: Employers are not required to withhold Connecticut income tax from wages/compensation paid to nonresident employees for services performed in Connecticut provided said employees are assigned to a primary work location outside of Connecticut and work in Connecticut 14 or fewer days during a calendar year. --Still report ©2014 The Payroll Advisor 39 Maine Example Compensation for personal services performed in Maine as an employee is Maine-source income subject to taxation if the nonresident taxpayer is present in the state performing personal services for more than 12 days during that tax year and directly earns or derives more than $3,000 in gross income during the year in Maine from all sources. ©2014 The Payroll Advisor 40 Maine Example Performance of the following personal services for 24 days during a calendar year is not counted toward the 12-day threshold: personal services performed in connection with presenting or receiving employment-related training or education; personal services performed in connection with a site inspection, review, analysis of management or any other supervision of a facility, affiliate or subsidiary based in Maine by a representative from a company, not headquartered in Maine, that owns that facility or is the parent company of the affiliate or subsidiary; personal services performed in connection with research and development at a facility based in Maine or in connection with the installation of new or upgraded equipment or systems at that facility; or personal services performed as part of a project team working on the attraction or implementation of new investment in a facility based in Maine. ©2014 The Payroll Advisor 41 Employee Withholding Certificates—The States Employers must verify if the state has an equivalent form to the IRS Form W-4 The States may: Not have their own form and use the Form W-4 Have their own form but allow Form W-4 to be used Require only the state form be used Best Practice Recommendation: If they have a form it should be used ©2014 The Payroll Advisor 42 Examples Arizona: Form A-4 is required California: DE4 required if withholding is different from federal withholding Idaho: No state form ©2014 The Payroll Advisor 43 Form W-4 Equivalents WA MT ME ND VT MN OR NH ID WI SD NY WY RI CT MI PA IA NE NV OH IL UT MD WV KS MO NJ DE IN CO CA MA VA KY NC TN AZ OK NM AR SC MS AL GA TX LA FL AK Must use state form May use federal Form W-4 No state form must use federal Form W-4 Restrictions on using Fed Form W-4 No state income tax HI States That Require/Recommend Use of Their Own Certificate Include… Alabama: Form A-4 Arizona: Form A-4 Arkansas: Recommends AR-4EC but allows modified Form W-4 California: Requires DE 4 if withholding is different than federal Connecticut: CT-W-4 District of Columbia: D-4 Georgia: Form G-4 Hawaii: Form HW-4 Illinois: IL-W4 Indiana: WH-4 ©2014 The Payroll Advisor 45 States That Require/Recommend Use of Their Own Certificate Include… Iowa: Iowa W-4 Kansas K-4 Kentucky: Form K-4 Louisiana: Form L-4 or L4E should be used but accepts (mutually agreed upon) modified Form W-4—employer responsible to determine number of correct allowances Maine: Form W-4ME Maryland: Form MW 507 Massachusetts: M-4 required if state exemptions differ from fed Michigan: MI-W4 Minnesota: W-4MN Mississippi: Form 89-350 Missouri: MO W-4 New Jersey: NJ-W-4 or Form W-4 may be used ©2014 The Payroll Advisor 46 States That Require/Recommend Use of Their Own Certificate Include… New York: Accepts W-4 recommends Form IT-2104 North Carolina: Form NC-4 or NC-4EZ Ohio: Form IT-4 Rhode Island: Form RI W-4 Vermont: Form W-4VT is recommended Virginia: Form VA-4 West Virginia: WV/IT 104 Wisconsin: WT-4 if state exemptions differ from fed ©2014 The Payroll Advisor 47 States That Have No Form Include… 48 Colorado Delaware: Has Form SD/W4 for calculating only use Fed W-4 “For Delaware Purposes Only” Idaho Montana ©2014 The Payroll Advisor Nebraska New Mexico North Dakota Oklahoma Oregon Pennsylvania South Carolina Utah Possible Other Forms on State Level Special forms for employee to claim exempt from state income tax Special form for military spouse to use to claim exempt from state income tax Forms for nonresidents of the state Reciprocal agreement forms ©2014 The Payroll Advisor 49 Example of Exempt Form-NY Completes the form if the employee is claiming exempt from state income tax Also used by Military spouses ©2014 The Payroll Advisor 50 Example of Nonresident Form-CT Completes the form if the employee is a nonresident who performs services partly within and partly outside of Connecticut for same employer Must also complete Form CT-W4 ©2014 The Payroll Advisor 51 One Form Mostly Fits All Use the same form for most purposes Example is Georgia Use the G-4 to claim exempt from withholding if owing no tax and for military spouse exemption ©2014 The Payroll Advisor 52 States That Use Special Form Example: Pennsylvania Local Earned Income Tax Residency Certification Form: DCED-CLGS-06 For more info on tax go to http://www.newpa.com/node/6747 ©2014 The Payroll Advisor 53 Making the Determination on Taxation Based on all we have covered the employer then determines the income tax withholding Best and easiest way is to T-account it State Working Rules for this state for a nonresident working here including reciprocal agreements ©2014 The Payroll Advisor State Living Rules for when a resident from this state works in another state including any reciprocal agreements 54 Guidelines—Employees Working in 2 or More States Still using the rules just discussed as to resident and nonresident etc. Some states provide guidelines for computing the allocation of withholding liabilities when employees work in more than one state There are three commonly approved formulas Volume of business ratio Time Basis Mileage Basis ©2014 The Payroll Advisor 55 Volume of Business Ratio Where an employee’s compensation depends directly on the volume of business transacted by that employee tax withholding attaches to that portion of the wages determined by ratio of volume of business transacted within the jurisdiction to the total volume of business transacted by the employee Example: Traveling sales person paid by commission ©2014 The Payroll Advisor 56 Time Basis Where an employee is paid on a daily, weekly or monthly basis, tax withholding attaches to that portion of the employee’s pay determined by the ratio of working hours within the taxing jurisdiction to the total working time Example: Human Resources Manager paid on salary ©2014 The Payroll Advisor 57 Mileage Basis Where an employee is paid on a mileage basis, tax withholding attaches to that portion of the employee’s pay determined by the ratio of actual mileage within the taxing jurisdiction to the employee’s total mileage Example: Delivery driver just passing through ©2014 The Payroll Advisor 58 Form W-2 Reporting Example: Connecticut Gross wages means the sum of wages paid to all your employees regardless of where they work. The amount of gross wages you report on Form CT941 for a calendar quarter must correspond with the amount reported on Federal Form 941 for that quarter. ©2014 The Payroll Advisor 59 Connecticut Example Cont… Gross Connecticut wages means the sum of: All wages paid to resident employees. Connecticut wages paid to resident employees are wages paid to resident employees regardless or where their services are performed. The amount of Connecticut wages paid to a resident employee will generally equal the amount of the employee’s wages for federal income tax withholding purpose. ©2014 The Payroll Advisor 60 NY Example-Nonresident ©2014 The Payroll Advisor 61 Four Factor Test for SUI The states have adopted uniform rules to help them determine which state has the right to claim coverage of employees who work in two or more states for an employer. Employers consider the following four factors in successive order: Localization of services Base of operations The place of direction or control Place of residence ©2014 The Payroll Advisor 62 Localization of Services Services performed partly within and without the state will be covered by state law if the work performed outside the state is incidental to the work performed in the state. Incidental means transitory or temporary or isolated instances or transactions ©2014 The Payroll Advisor 63 Example Localization of Services: A payroll clerk normally works at the company’s headquarters in Georgia. Due to the acquisition of a firm in Alabama the payroll clerk is sent to that state for three months to change over the payroll system. Georgia retains jurisdiction even during the period the payroll clerk is working in Alabama. ©2014 The Payroll Advisor 64 Base of Operations If a worker normally or regularly works in two or more states the employee’s services can’t be said to be localized in one state. The next best claim to jurisdiction is the state where the employee performs some services and in which the base of operations is located Base of operations means the place where employees report for work or customarily return to ©2014 The Payroll Advisor 65 Example Base of Operations: A New York based company employs a regional sales manager to cover the states of PA, NJ and MD. The sales manager works out of an office in PA and divides his time fairly evenly among the three states. His activities are directed and controlled from the New York office. Pennsylvania has jurisdiction since the sales manager’s services aren’t localized in any one state and the base of operations is in PA. ©2014 The Payroll Advisor 66 Place of Direction or Control If the prior two tests aren’t applicable then the employer goes to the next best claim of jurisdiction which is the state in which the employee performs some services and which is the place of direction or control The determinant is the place of immediate or potential control even if the control is exercised only rarely ©2014 The Payroll Advisor 67 Example Place of direction or control: A salesperson covers the DC metropolitan area including parts of DC, VA and MD. The salesperson has no primary base of operations and is under standing orders to call in at least daily to the company headquartered in DC. DC has jurisdiction in this instance since services aren’t localized, no primary base of operations and the salesperson receives direction and control from the DC office ©2014 The Payroll Advisor 68 Place of Residence If the prior three tests don’t establish jurisdiction the state of jurisdiction becomes the one in which the employee both performs some services and maintains a place of residence ©2014 The Payroll Advisor 69 Example Place of Residency: An equipment manufacturer in Detroit has an employee who supervises equipment installations and handles complaints from customers in IN and OH. The employee has no particular place of operations but lives in Ohio. The state of jurisdiction is Ohio. ©2014 The Payroll Advisor 70 Reciprocal Coverage Agreements Most states subscribe to the Interstate Reciprocal Coverage Arrangement Permits employers to cover services in a single state by election of the employer All services will be covered in any state either in which any part of the services are performed, the employee resides or where the employer maintains a place of business States accept and pay contributions on each other’s behalf to assure that services provided by multistate employees are not covered under more than one state ©2014 The Payroll Advisor 71 Example A construction engineer who works for a Texas firm on a job in New Mexico for four months and who then goes to CA for six months on a job might be covered under both New Mexico and California laws. Under the interstate reciprocal arrangement, the Texas firm could elect to cover all the services performed by the engineer under Texas law ©2014 The Payroll Advisor 72 Fringe Benefits Nothing changes in paying fringe benefits in terms of taxation Common mistake – taxing where the employee lives regardless of where money is earned It is the same as paying wages—State where “fringe benefit” is earned determines taxation Good example is domestic partnership health insurance—DOMA ruling changes everything ©2014 The Payroll Advisor 73 Useful Links payroll-taxes.com: lists each state for withholding, local taxes, reciprocal agreements, SUI and SDI http://www.payroll-taxes.com/state-tax.htm ©2014 The Payroll Advisor 74 What We Covered Today… List of all taxes required by states Income SUI SDI Local Following the IRS Code—where the states stand Supplemental Taxation Determining State Withholding Liability Resident Qualifications ©2014 The Payroll Advisor 75 What We Covered Today… Reciprocal Agreements Resident vs. Nonresident Withholding Allowance Certificates 4 Factor Test for SUI Handling SIT & SUI for Multistate employees ©2014 The Payroll Advisor 76 Are There Any Questions? ©2014 The Payroll Advisor 77 Thank You for Attending! 21st Annual IL Statewide APA Conference – August 21-22, 2014