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MTC Three-Factor Election Falls Flat in Texas

By Zachary Atkins and Prentiss Willson

A Texas administrative law judge ruled that a taxpayer was not entitled to make an alternativ

May 28, 2013

By Zachary Atkins and Prentiss Willson

A Texas administrative law judge ruled that a taxpayer was not entitled to make an alternative three-factor apportionment election under Article IV of the Multistate Tax Compact (Compact) for Texas franchise tax purposes. The Texas Tax Code requires taxpayers to use a single gross receipts factor to apportion taxable margin to Texas. The taxpayer filed refund claims in which it asserted its right to use the alternative three-factor apportionment formula set forth in the Compact to determine its franchise tax liability. Despite being a full member of the Multistate Tax Commission established by the Compact, Texas has taken the position that the three-factor apportionment election is not available to taxpayers because the franchise tax is not an income tax. Without addressing that argument, the administrative law judge concluded that Texas law governs and requires taxpayers to use the single gross receipts factor formula, affirming the Comptroller’s denial of the taxpayer’s refund claims. The Comptroller adopted the administrative law judge’s decision as written. Docket Nos. 304-13-1314.13, 304-13-1315.13 (Tex. State Office of Admin. Hearings, Apr. 9, 2013).

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