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Comments on the Business Activity Tax Simplification Act Before the Senate Finance hearing titled: “Tax Reform: What it Means for State and Local Tax and Fiscal Policy”
Date: 5/2/2012

Comments of the National Foreign Trade Council
On the Business Activity Tax Simplification Act
Before the Senate Finance hearing titled: “Tax Reform: What it Means for State and Local Tax and Fiscal Policy.”
Held on April 25, 2012

The National Foreign Trade Council (NFTC), organized in 1914, is an association of some 250 U.S. business enterprises engaged in all aspects of international trade and investment. Our membership covers the full spectrum of industrial, commercial, financial, and service activities, and the NFTC therefore seeks to foster an environment in which U.S. businesses can be dynamic and effective competitors in the domestic an international business arena. The NFTC appreciates the Senate Finance Committee holding a hearing on state and local fiscal policy and strongly supports the Business Activity Tax Simplification Act of 2011, ("BATSA"), and respectfully asks that you consider the BATSA as you move forward in the tax reform discussion.

A bill has been introduced in the House by Representatives Bob Goodlatte (R-VA) and Bobby Scott (D-VA), (H.R. 1439) that has strong bipartisan support among members of the House Judiciary Committee. The bill would clarify the constitutional nexus standard governing state assessment of corporate income taxes and other direct taxes on a business (it would have no impact on sales and use or other non-income-based taxes). Specifically, the bill articulates a bright-line physical presence standard that would ensure that both states and businesses understand the tax rules under which they are operating, which is particularly important for businesses with customers in many states that all have separate business tax regimes and standards.

The NFTC has a particular interest in supporting the BATSA bill, as the state's actions in pursuing taxes where there is a lack of physical presence of the taxpayer has, and will, cause uncertainty and widespread litigation, so much so that it has, and will, create a chilling effect on not only inter-state but also international commerce. The physical presence standard is articulated as a "permanent establishment standard" in our bi-lateral tax treaties and under OECD guidelines. In other words, physical presence is the international norm. Adoption of a more nebulous standard by the States undermines these international treaties. Moreover, a violation of the international norms by the imposition of business activity taxes undermines the United States' negotiating position with foreign nations. A new tax structure is likely to invite reciprocal, aggressive tactics by foreign taxing authorities, seriously compromising the competitive leadership of U.S. businesses. Under the foreign tax credit system that has long been a cornerstone of our income tax system, this would in effect force the United States to cede to other nations' tax jurisdiction over U.S. activities that have no physical presence abroad.

BATSA would ensure fairness, minimize costly litigation and create the kind of legally certain and stable environment that encourages businesses to make investments, expand interstate commerce and create new jobs. At the same time, the bill would ensure that businesses continue to pay business activity taxes to states that provide them with direct benefits and protections.

Thank you once again for holding this hearing... We look forward to working with you, your staff and all members of the Senate Finance Committee on the Business Activity Tax Simplification Act.