Arizona Proposition 208 – What Does It Mean?

Proposition 208, on the ballot in the 2020 general election, would add a new surcharge to Arizona income taxes that is set to take effect for tax years beginning from and after December 31, 2020—or, for most taxpayers, calendar year 2021 individual tax returns.[1]

As of the early morning following the election, the Proposition held a 135,856 vote lead with the Arizona Republic website showing 85.02% reporting (presumably election day votes in addition to the majority of the early voting ballots).  While not an insurmountable lead, it is very possible that Proposition 208 will pass and thus clients will be calling about its impact. 

So I’ve decided to take the risk and detail how the provision would work, assuming it actually does pass and become law. If that doesn’t happen, treat this as an analysis of a proposed law that never became law–but right now it looks like it will pass (we’ll see if we know more by later in the week).

The details of the provision are outlined below.

New ARS §43-1013.A.1 and 2 provide for the new tax.  The tax applies at a rate of 3.5% on taxable income in excess of

  • $250,000 for single individuals or those filing married filing separately[2] or
  • $500,000 for those filing as head of household or a married couple filing a joint return.[3]

The new section reads as follows:

43-1013. Income tax surcharge for public education

A. In addition to any other tax imposed by this chapter, for taxable years beginning from and after December 31, 2020, there shall be levied, collected and paid an income tax surcharge to advance public education in this state as follows:

1. In the case of a single person or a married person filing separately, a surcharge at the rate of three and one-half percent of taxable income in excess of $250,000.

2. In the case of a married couple filing a joint return or a single person who is a head of household, a surcharge at the rate of three and one-half percent of taxable income in excess of $500,000.

B. Notwithstanding sections 42-1116 and 43-206, the department shall separately account for revenues collected pursuant to the income tax surcharge imposed by this section, and shall deposit those revenues in the student support and safety fund established by section 15-1281.

C. The income tax surcharge levied by this section must be collected regardless of whether the income tax rate brackets in this chapter are changed, replaced or eliminated by an act of the legislature.[4]

EXAMPLE 1, MARRIED COUPLE FILING JOINT RETURN, BELOW EXEMPTION LEVEL

Wayne and Susan are a married couple filing a joint return.  Their Arizona taxable income for 2021 is $450,000.  Since their taxable income is less than $500,000 (the surtax level found at ARS §43-1013.A.2 for the married filing joint status), they will not face an addition to their Arizona income tax for 2021 under ARS §43-1013.

EXAMPLE 2, SINGLE INDIVIDUAL

Wilma, an unmarried individual who has a filing status of single, has Arizona taxable income of $600,000 for 2021.  In addition to the regular Arizona income tax due on Wilma’s 2021 Arizona income tax return, Wilma will owe an additional surcharge under ARS §43-1013 of $12,250 (3.5% of ($600,000 – $250,000)).

EXAMPLE 3, HEAD OF HOUSEHOLD

Assume the same facts as in Example 2, except that Wilma qualifies to file as head of household.  In that case, Wilma’s additional tax under ARS §43-1013 will be $3,500 (3.5% of ($600,000 – $500,000)).

EXAMPLE 4, MARRIAGE CREATING A TAX REDUCTION UNDER ARS §43-1013

Robert and Cynthia are considering getting married before the end of 2021.  Robert’s Arizona taxable income if he remains unmarried at year end and files as a single individual will be $400,000, while Cynthia’s Arizona taxable income as a single individual will be $75,000.  If they are married before year end their joint Arizona taxable income will be $475,000 (note, this would not have to be the case, but we will assume that for purposes of this illustration).  If they are married they plan to file a joint return.

If they do not marry before the end of 2021, Robert will face a §43-1013 surcharge of $5,250 while Cynthia will not have any surcharge applied to her return.

If the couple does marry before year end, there will be no surcharge on their joint return as their taxable income will be below the surcharge level.  Thus, in this case a marriage would reduce their combined surcharge.

EXAMPE 5, MARRIAGE CREATING A TAX INCREASE UNDER ARS §43-1013

The impact of marriage is a bit different in certain cases where one or both of the individuals considering marriage qualify for head of household filing status.

If we assume that Robert has a dependent that would qualify him for head of household filing status, and that Cynthia’s Arizona taxable income is $250,000 the results are a bit different.  We will again assume that the couple’s joint Arizona taxable income would the total of their individual filing status taxable incomes, or $725,000 in this case.

If they do not marry before the end of 2021 there will be no §43-1013 surcharge imposed on either tax return. Robert’s taxable income of $475,000 is below the $500,000 level at which the surcharge begins to be imposed on head of household filing status taxpayers, while Cynthia’s taxable income is at the maximum level she could have as a single individual without triggering the tax.

But if the couple marries, they now will see their combined income tested against a single $500,000 Arizona taxable income level before they begin to pay a surcharge—that is, exactly the same amount as Robert was granted when filing head of household status.  The joint return would see a §43-1013 tax imposed on $225,000 ($725,000 – $500,000), for a surcharge of $7,875 (3.5% of $225,000).

Special rules apply to the Department of Revenue’s rulemaking for this provision, found in Section 7 of the Proposition:

Section 7. Exemption from rulemaking

For the purposes of adopting rules to implement this act, and for twenty-four months after the effective date of this act, the department of education, the state board of education and the department of revenue are exempt from both of the following:

1. Any executive order or other directive purporting to limit or restrict the ability of the department of education, the state board of education and the department of revenue to adopt new rules.

2. The rulemaking requirements of title 41, chapters 6 and 6.1, Arizona Revised Statutes, except that each department shall provide the public with a reasonable opportunity to comment on proposed rules and shall publish otherwise-exempted rules.[5]


[1] ARS §43-1013, Added by Proposition 208, 2020 General Election, November 3, 2020

[2] ARS §43-1013.A.2

[3] ARS §43-1013.A.3

[4] Proposition 208, 2020 General Election, Section 5, November 3, 2020

[5] Proposition 208, 2020 General Election, Section 7, November 3, 2020

Arizona Allows Partnership/Corporate Electronic Filing for 2019 Returns, Will Be Mandatory for 2020 Returns

The Arizona Department of Revenue announced that the agency is now accepting electronically filed corporate and partnership income tax returns.[1]  Arizona had been one of the few states, if not the only one, that could not accept electronically filed entity returns.

The news release on the website notes that while the program is voluntary for 2019 returns, beginning with 2020 returns these entities will be required to file return electronically.  The statement provides:

Legislation signed into law in 2017 gives companies an e-file option in 2020 for tax year 2019 and becomes mandatory for corporations starting in 2021 for tax year 2020 returns.
The 2017 legislation also initiated a multi-year phase-in period for businesses required to file and pay transaction privilege tax (TPT) electronically. In 2019, the e-filing threshold was $10,000 with 77 percent of the more than 2.1 million TPT returns filed electronically. For 2020, businesses with an annual transaction privilege tax and use tax liability of $5,000 or more during the prior calendar year, will be required to file and pay electronically. In 2021, the threshold is reduced to $500 or more during the prior calendar year.

Arizona Department of Revenue News Release – January 6, 2020

[1] “Electronic Filing Now Available for Corporate Taxpayers in 2020,” Arizona Department of Revenue website, January 6, 2020, (https://azdor.gov/news-events-notices/news/electronic-filing-now-available-corporate-taxpayers-2020  Retrieved January 7, 2020)

Screenwriter Subject to California Tax Even Though All Work Done in Arizona

Photo by Denise Jans on Unsplash

The California Office of Tax Appeals in the Matter of the Appeal of Blair S. Bindley, OTA Case No. 18032402[1] ruled that an Arizona individual who had a contract for screenwriting services for two California LLCs had California source income on which he had to pay tax, even though all services were performed in Arizona.

California, like many other states, has moved to pure market-based sourcing for apportioning sales in a business setting.  Under California Revenue & Taxation Code (RT&C) §25128.7, apportionment for the vast majority of businesses with California operations is based solely on the sales factor.  RT&C §25136(a)(1) assigns a sale to California to the extent that the purchaser of a service received the benefit of the service in California.

In this case the taxpayer argued that he had performed all of the services in California Arizona, so he did not have a sufficient connection with California to trigger a requirement to file a return and report the income to the Franchise Tax Board.[2]

California imposes its tax on any nonresident carrying on a business within the state of California (RTC §18501(a)).  The OTA opinion notes that nothing in the statute requires that the taxpayer be physically present in the state of California.[3]  The Court found that the taxpayer received income from California LLCs, with he and his sole proprietorship deemed to be conducting business in California, making the proprietorship’s income subject to apportionment under California’s apportionment rules.[4]

So now the question becomes where did the taxpayer’s buyer receive the benefit of the services provided, not where the taxpayer performed such services.  Under Reg. §25136-2(c)(2) provides that where a business is the taxpayer’s customers, the place where the customer receives the benefit of the services is determined under the following rules:

(A)The location of the benefit of the service shall be presumed to be received in this state to the extent the contract between the taxpayer [i.e., appellant] and the taxpayer’s customer[s] [i.e., Mindbender and Lakeshow] or the taxpayer’s books and records kept in the normal course of business, notwithstanding the billing address of the taxpayer’s customer, indicate the benefit of the service is in this state. This presumption may be overcome by the taxpayer or [FTB] by showing, based on a preponderance of the evidence, that the location (or locations) indicated by the contract or the taxpayer’s books and records was not the actual location where the benefit of the service was received.

(B) If neither the contract nor the taxpayer’s books and records provide the location where the benefit of the service is received, or the presumption in subparagraph (A)is overcome, then the location (or locations) where the benefit is received shall be reasonably approximated.

(C) If the location where the benefit of the service is received cannot be determined under subparagraph (A) or reasonably approximated under subparagraph (B), then the location where the benefit of the service is received shall be presumed to be in this state if the location from which the taxpayer’s customer placed the order for the service is in this state.

(D)If the location where the benefit of the service is received cannot be determined pursuant to subparagraphs (A), (B), or (C), then the benefit of the service shall be in this state if the taxpayer’s customer’s billing address is in this state.

The OTA opinion applies these rules, coming to the determination that since the LLCs are registered and located in California, the second test is met, with the benefit received in California:

Public records from the California Secretary of State provided by FTB show that both Mindbender and Lakeshow are registered and located in California. Moreover, appellant’s contracts with Mindbender and Lakeshow both list California addresses. Appellant also concedes that Mindbender and Lakeshow are California LLCs. Based on the evidence in the appeal record, we find that it was both reasonable and rational for FTB to conclude that both LLCs received the benefit of appellant’s services within California. Because we have determined that the LLCs received the benefit of appellant’s services in California under Regulation section 25136-2(b)(2)(B), there is no need to discuss the remaining cascading rules.[5]

The opinion summarized the findings as follows:

In sum, pursuant to the provisions of the UDITPA relating to the sale of services and the regulations thereunder, appellant’s physical presence does not determine whether he had income derived from California, but rather it is determined by where the benefits of appellant’s services were received.[6]


[1] https://ota.ca.gov/wp-content/uploads/sites/54/2019/08/18032402_Bindley_Decision_OTA_053019.pdf, May 30, 2019

[2] Ibid, p. 4

[3] Ibid, pp. 4-5

[4] Ibid, pp. 5-7

[5] Ibid, p. 9

[6] Ibid

Tax Analysts Reports That Conformity Bill Has Been Signed Into Law

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Not there was much question about the issue, but State Tax Notes (“Arizona Enacts Remote Seller, IRC Conformity Law,” State Tax Notes, June 4, 2019) reported this morning that Governor Ducey signed the income tax conformity/nexus tax bill (HB 2757) into law. The law, now designated as Chapter 273, Session Laws, 54th Legislature, First Regular Session, will go into effect absent the highly unlikely situation that a referendum petition is taken out and is successful regarding this law.

Arizona Legislature Passes IRC Conformity Bill, Awaits Governor’s Signature

person holding black pen
Photo by rawpixel.com on Pexels.com

Although it took much longer than normal, and there was much uncertainty about what the Legislature would ultimately do in the end, the Legislature managed to pass an IRC conformity bill as part of the budget process.

HB 2757 scraped through both chambers with the bare minimum number of votes to clear each chamber.  It is expected that the Governor will sign this bill.[1]

Continue reading “Arizona Legislature Passes IRC Conformity Bill, Awaits Governor’s Signature”

iPad As A PDF Device For Continuing Education

I wrote last year about using the Kindle DX in CPE presentations. The DX was the a device that allowed full page viewing of PDFs, which eliminated the need for me to carry around printed manuals. It also suggested that participants might eventually have devices available that would allow the elimination of printed manuals without requiring having electric outlets available for each class participant

Continue reading “iPad As A PDF Device For Continuing Education”

Kindles and CPE Presentations – Some Thoughts

A bit of a Twitter conversation got started on using the Kindle for continuing education materials for CPAs. As I’m a CPE instructor that is actually using a Kindle DX for the presentations I give, I thought a share a few additional thoughts in a forum that allowed more than 140 characters.

I use the Kindle DX to hold the manuals I use during a full day CPE presentation. The Kindle 2, which is a smaller form factor like the original Kindle, does not show PDF files in their native format. That poses a major problem for me, since participants often want a reference to the page in their printed copy. Since the participants are still using a paper manual, I need a device that will let me see exactly what the participants see.

As well, any fancy formatting (such as tables or government forms) won’t tend to survive the reformatting when sent to the smaller device. Considering that one of Amazon’s target markets for the larger Kindle DX is the textbook market, it seems clear that, at least today, it’s the more reasonable device from a features standpoint.

That said, the support for PDF is not as robust as the support for standard Kindle books. You cannot create notes to attach to PDF files, and the Kindle reader doesn’t pay attention to bookmarks in the PDF file for navigation. As well, there is no built in zoom function. The best that a user can do is turn the device sideways, when it will go from showing a full page to showing the page full width in landscape mode. The device is built to automatically sense when the device is turned sideways, but it only reacts to such turns very slowly-at times so slowly as to make a user believe the device won’t recognize the rotation.

For participants the device would pose a couple of problems. A key one is that the Kindle DX costs $489-a significant cost that someone would have to absorb. Aside from use for CPE style textbooks, most CPAs would not have a reason to acquire the DX rather than the smaller (and cheaper) device. The Kindle 2 sells for $190 less than the DX.

As well, it’s probably only reasonable to use the Kindle for distributing CPE materials if all participants are using a Kindle. I doubt it would be practical for some participants to be using a Kindle and others to use a paper manual, at least unless the Kindle was a DX showing PDFs.

Getting materials on the Kindle also would be a bit troublesome with the current structure. There’s no easy way to “push” materials to a Kindle-remember it was designed by Amazon as a way to buy books from them. Materials that don’t originate with Amazon have to be loaded manually onto the Kindle either by emailing them to the user’s special address (for which there will be a charge) or by copying the file to the device after hooking it to the computer.

Copying a file is simple, but I doubt it will be obvious how to do it for users that aren’t computer savvy. You have to mount the Kindle as a drive using a USB connection. On Windows that means it will end up being given a drive letter that can’t be easily predicted, making “pure” step by step instructions impossible to write (on a Mac it will show up as a drive named Kindle in the Finder). As well, the PDF or Amazon book formatted file has to be copied into the documents directory on that drive.

I suspect that CPE administrators would end up spending considerable time, with the current structure, supporting participants who could not get the manual loaded onto their Kindle (presuming we’ve somehow solved the problem of getting them a device). Hopefully Amazon will come up with a “simplified” method for pushing out such materials, but for now it won’t be easy.

That said, the Kindle is a far superior device for viewing texts than a laptop. First, and most important, it doesn’t run out of power five hours after a full charge. A Kindle, because it uses e-ink, only chews up power when you turn a page-keeping a page displayed burns no power. Thus you don’t need power outlets at each desk.

Second, the display is much easier on the eyes than staring at a backlit laptop display all day for reading. Eye fatigue is a major problem when reading from backlit displays for a long period of time.

Third, the display does not wash out in bright light. Rather, it is virtually like paper in how it reacts to light-and, of course, the rooms currently being used for courses have to be ones in which paper manuals are readable.

We also have to remember that not all CPAs have laptop computers, even today. So even if texts were provided in computer friendly formats, there would be some participants that would not be able to “bring along” their computer to the course. Even for those with laptops, some are clearly not very portable. A power outlet has to be provided to each participant.

In Phoenix, another side effect that would not necessarily be very positive, is that a room full of laptops is going to generate a bunch of extra heat in the room (just touch the bottom of your laptop to see what I mean). Kindles don’t do that.

I suspect some sort of ebook reader is likely the future of all training materials. But I’m not sure we’ve yet hit the point where we have a fully workable solution-but it is one that those of us involved in CPE probably need to keep our eyes on.

We may soon, however, be at the point where it might be possible to offer an ebook manual as an option for participants. That is, they could optionally get a PDF manual in lieu of paper. The advantage to participants is they could have the material before class. And, for the organizations presenting, the advantage would be eliminating the cost of printing a physical manual.

I’m certainly not going back to hauling paper manuals in suitcases for when I am traveling to give CPE presentations. But I doubt I’ll be staring at a room full of CPAs holding Kindles looking back at me anytime soon.


CCH and Browser Requirements

Had an interesting back and forth with CCH on the browser requirements with their new tax research software. Their system requirements page lists as required Windows 98/2000/XP/Vista and Internet Explorer 6/7. If those were truly the requirements I would have to cancel out my CCH subscription.

Why? I have a policy in my office of not allowing users generally to run Internet Explorer due to the huge security problem that has been (and to some extent continues to be) ActiveX. The concept is so fundamentally flawed that it simply, in my view, rules out the use of IE by anyone not highly technically skilled.

That is, my users can’t reliably make the call on whehter or not it’s OK to allow an ActiveX control to be installed. As well, the fact that virtually any DLL will be loaded up by IE as an ActiveX control is a big security hole–hackers discover problems in programs that were never meant to be run as an ActiveX control and then use IE to run those programs and exploit their weaknesses.

As well, I do tax research on my portable devices (iPod Touch and Blackberry)–and those don’t run Internet Explorer, but they are rather dominant business portable devices. Losing that access would frankly be totally unacceptable.

I wrote CCH about this requirement and discovered, as I suspected, this was just a “suggestion” and that, in fact, Firefox runs it just fine. That’s not suprising, since the current CCH research system requirements exclude Vista. But it is disquieting, since it means CCH has reserved the right to simply foist blame on Firefox for any of their glitches, rather than recognizing that a significant and growing component of the market uses Firefox.

Of course, given the history they can (and likely would) do the same thing with Windows 7 and Internet Explorer 8, even though those will likley be the standard Microsoft shipping setup shortly after they’ve rolled out the new software.

Producing a Weekly Church Podcast

I’ve been involved impossible assembling up the weekly podcast at Prince of Peace Lutheran Church in Phoenix for the last couple of years and I thought it might be useful for others thinking of doing this to see what we do.

We look to publish only the sermon since that avoids all the issues involved with rights for music. As well, it’s a lot tougher to properly record music as opposed to spoken words.

The sermon is recorded off the church’s standard audio output. We now have a dedicated digital audio recorder but until recently we were just taking a plain audio out line to a laptop computer with Audacity handling the recording itself. The old method actually worked surprisingly well though the unshielded output does pick up buzzes from time to time. But that problem is relatively easily fixed in final production.

The first step in final production is to clean up the audio. I use a combination of the open source Audacity editor, the Conversations Network’s Levelator and the commercial program SoundSoap 2 for noise removal. Audacity actually can handle noise removal on its own and while I have a slight preference for Sound Soap’s quality, if I didn’t need it for other nonchurch work I’d likely stick with Audacity alone.

The raw recording is first cut to include only the sermon using Audacity. I then export to a WAV file and give it to the Levelator. That program helps assure we get a more consistent volume throughout the sermon, even if the speaker doesn’t keep a constant distance from the mike.

Once the levels are set, I think run the file through SoundSource to eliminate relatively constant background noise. It gives a bit of “cleaner” sound to the resulting audio.

We have a standard intro and closing that we have already recorded for each podcast, and those exist as an Audacity “project” file we use as the starting point for each Sunday’s podcast. We have the intro and closings as separate tracks in Audacity and they can be moved independently–useful since no two sermons are exactly the same length.

I then use the import function in Audacity to bring the sermon into the week’s project file. At that point it’s simply a matter of moving the segments into proper position. Once that is done we are ready to export to MP3.

One additional piece of software has to be obtained to export to MP3 from Audacity–but it’s free. You need to get the Lame MP3 encoder and then tell Audacity in its preferences where the file is located (it’s a licensing issue, which is why Audacity can’t ship with it). We export our MP3 at 64Kbps mono, which will give the same sound quality as 128K stereo (what became the defacto standard for music until recently).

The completed file is brought into iTunes to add a graphic that appears on iPods, and you can insert the other information (name of the week’s podcast, name of the podcast, the speaker’s name, etc.) in iTunes as well. You do that by simply starting to play the file in iTunes, stop the play and then hit either Control-i (Windows) or Command-i (OSX). You can then add the appropriate “extra” information.

We use Liberated Syndication to host our podcast. They offer relatively low cost plans that don’t have a bandwidth cap (a key advantage if one podcast episode suddenly get linked to by a popular site). Their $5 per month plan is more than sufficient for a weekly sermon. The cap they do impose is on data stored for the current month–outside one month, even the storage is unlimited.