Md. State Comptroller of the Treasury v. Wynne
| Decision Date | 28 January 2013 |
| Docket Number | No. 107,107 |
| Parties | MARYLAND STATE COMPTROLLER OF THE TREASURY v. BRIAN WYNNE, ET UX. |
| Court | Court of Special Appeals of Maryland |
Maryland State Comptroller of the Treasury v. Brian Wynne, et ux.
No. 107, September Term 2011
Constitutional Law - Commerce Clause - State Income Taxation - County Income Tax - Credit for Income Taxes Paid by Maryland Residents to Other States Based on Out-of-State Income - Subchapter S Corporations. The Maryland income tax law imposes a tax, consisting of the and a "county income tax," on all of the income of a Maryland resident, whether that income is earned within the state or outside of the state. With respect to income earned outside of Maryland, the taxpayer may also owe income tax to other states on that income. The Maryland tax code allows a credit for income taxes paid to other states with respect to the state income tax, but not with respect to the county income tax. Under both federal and Maryland law, a Subchapter S corporation is deemed to "pass through" its income to its shareholders who are taxed on that income at the shareholder's level. The failure to allow a credit with respect to the county income tax for out-of-state income taxes paid to other states on "pass-through" income earned in those states discriminates against interstate commerce and violates the Commerce Clause of the federal Constitution.
Opinion by McDonald, J.
Federal and Maryland law allow for the attribution of corporate income to the corporation's shareholders - without being taxed at the corporate level - in defined circumstances. In particular, the income of a Subchapter S corporation is deemed to "pass through" to the shareholders who are then directly taxed on that income. Some or all of that income may be generated outside the state in which a shareholder resides.
The Maryland income tax law reaches all of the income of a Maryland resident. The State income tax law allows a credit against an individual's State tax liability for income taxes paid to other states based on the income earned in those states. However, that credit takes no account of, and cannot be taken against, the portion of the Maryland income tax known as the "county income tax."
This case poses the question whether the failure to allow a credit violates the federal Constitution when a portion of a Maryland resident taxpayer's income consists of significant "pass-through" income generated by a Subchapter S corporation in other states, apportioned to the taxpayer, and taxed by the states in which it was generated. The taxpayer has appealed an assessment by the State Comptroller that did not allow a credit against the county income tax portion of the Maryland income tax.
The Comptroller, as he should,1 defends the tax law as written by the Legislature2 and interpreted by this Court.3 The taxpayers accept that interpretation, but assert that it is wanting when measured against the federal Constitution. They rely on a multitude of cases - virtually all of which are subsequent to the 1975 amendment of the Maryland tax law that uncoupled the credit from the county income tax - that assess state taxes against what has come to be known as the "dormant Commerce Clause."
Although the Maryland Tax Court ruled in favor of the Comptroller, the Circuit Court for Howard County reversed that decision and held that the statute's failure to allow such a credit violated the dormant Commerce Clause. For the reasons that follow, we find merit in the taxpayers' contentions and affirm the judgment of the Circuit Court.
A state may tax the income of its residents, regardless of where that income is earned. A state may also tax a nonresident on income earned within the state. Both of these propositions are consistent with the Due Process Clause of the Fourteenth Amendment. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S.450, 462-63 & n. 11 (1995); New York ex rel. Cohn v. Graves, 300 U.S. 308, 312-13 (1937). However, they raise thepossibility of what might be termed "double taxation" when both the state of the taxpayer's residence and the state where the income was generated tax the same income. As explained below, the Commerce Clause of the federal Constitution sets certain constraints on this possibility, which the states recognize through the provision of credits for payments of out-of-state taxes.
State law imposes an income tax on individuals. Maryland Code, Tax-General Article ("TG") §10-101 et seq.4 It is composed of three parts:
Thus, all individual taxpayers are subject to the State tax and either the county tax or the SNRT. These taxes are all collected by the Comptroller; the proceeds of the county tax are distributed to the relevant county.
State law allows for an individual subject to the Maryland income tax to take a credit against the State tax for similar taxes paid to other states.6 In particular:
a resident may claim a credit only against the State income tax for a taxable year in the amount determined under [TG §10-703(c)] for State tax on income paid to another state for the year.
TG §10-703(a). There are various exceptions to this credit, none of which are pertinent to this case.7 In general, the credit is designed to ensure that Maryland receives, at a minimum, the Maryland income tax due on the taxpayer's income that is attributable to Maryland,regardless of the another state's method or rate of taxation.8 Comptroller v. Hickey, 114 Md. App. 388, 391, 689 A.2d 1316 (1997).
No credit is given against the county tax for income taxes paid in other states. TG §10-703(a); Comptroller v. Blanton, 390 Md. 528, 890 A. 2d 279 (2006). As this Court outlined in Blanton, a credit had previously applied with respect to the county tax. See Sternv. Comptroller, 271 Md. 310, 316 A.2d 240 (1974). However, in 1975, the Legislature amended the tax code to eliminate that credit. Chapter 3, Laws of Maryland 1975.9 S Corporations and Income Taxes
A Subchapter S corporation or "S corporation" is a corporation - often a relatively small business - that meets certain requirements set forth in the Internal Revenue Code and makes an election to pass through its income and losses, for federal tax purposes, to its shareholders.10 Each shareholder reports his or her share of the S corporation's income and losses on their individual tax returns and is assessed federal income tax at the shareholder's individual rate. In that way, the income that the S corporation generates for its owners is taxed at one level - similar to the taxation of a partnership - rather than at two levels (corporate and shareholder) as is otherwise typically the case.11 To accomplish this, the character of any item of income or loss of an S corporation "passes through" to its owners "as if that item were realized directly from the source from which realized by the corporation, or incurred in the same manner as incurred by the corporation." 26 U.S.C. §1366(b).
Some states accord similar pass-through treatment to the income of an S corporation; other states do not and require an S corporation to pay income tax directly. The Maryland income tax law incorporates, for the most part, the definitions of income under the Internal Revenue Code. See TG §§10-101(l), 10-107, 10-201 et seq. Accordingly, the income of an S corporation "passes through" and is attributed to its shareholders for purposes of the Maryland income tax law. See TG §10-104(6); see also TG §§10-102.1, 10-304(3).
The underlying facts are undisputed. The taxpayers are Brian and Karen Wynne ("the Wynnes"), a married couple with five children residing in Howard County. During the 2006 tax year, Brian Wynne was one of seven owners of Maxim Healthcare Services, Inc. ("Maxim"), a company that does a national business providing health care services, and owned 2.4% of its stock. Maxim had made an election under the Internal Revenue Code to be treated as an S corporation. As a result of that election, Maxim's income was "passed through" to its owners for federal income tax purposes, and the Wynnes reported a portion of the corporation's income on their individual federal income tax return.
Because Maryland accords similar pass-through treatment to the income of S corporations, the Wynnes also reported pass-through income of Maxim on their 2006 Maryland tax return. A substantial portion of the pass-through income had been generated in other states and was taxed by those states for the 2006 tax year.
In particular, for the 2006 tax year, Maxim filed state income tax returns in 39 states. Maxim allocated to each shareholder a pro rata share of taxes paid to the various states. Thereturns did not indicate payments of income taxes to any county or local entity in other states. The Wynnes claimed their pro rata share of such income taxes paid to other states as a credit pursuant to TG §10-703(c) against their 2006 Maryland individual income tax, reflected on Maryland Form 502.
The Comptroller made a change in the computation of the local tax owed by the Wynnes and revised the credit for taxes paid to other states on the Wynnes' 2006 Maryland Form 502. The net result was a deficiency in the Maryland taxes paid by the Wynnes, and the Comptroller issued an assessment, which the Wynnes...
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