No. 27386 (Amendment): R865-6F-36. Taxation of Registered Securities or Commodities Broker or Dealer Pursuant to Utah Code Ann. Sections 59-7-302 through 59-7-321

DAR File No.: 27386
Filed: 09/01/2004, 01:55
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

Section 59-7-320 provides for adjustments to the three-factor apportionment formula if that formula does not fairly represent a taxpayer's business activity in the state.

 

Summary of the rule or change:

The proposed section modifies the three-factor apportionment formula for income reported by securities dealers to provide that securities (intangible property) shall be included in the property factor (which normally does not include intangible property), and to indicate when sale of securities take place in Utah.

 

State statutory or constitutional authorization for this rule:

Sections 59-7-302 through 59-7-321

 

Anticipated cost or savings to:

the state budget:

No overall impact--While the change in the property factor works in favor of the taxpayer, the change in the sales factor works in favor of the state.

 

local governments:

This rule deals with corporate franchise and income taxes, which are state taxes, and therefore there are no costs or savings to local government.

 

other persons:

No overall impact--See the response under State budget.

 

Compliance costs for affected persons:

None--The proposed changes of this rule have no overall impact on a securities dealer.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no fiscal impact on businesses.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Tax Commission
Auditing
210 N 1950 W
SALT LAKE CITY UT 84134

 

Direct questions regarding this rule to:

Cheryl Lee at the above address, by phone at 801-297-3900, by FAX at 801-297-3919, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/15/2004

 

This rule may become effective on:

10/16/2004

 

Authorized by:

Pam Hendrickson, Commissioner

 

 

RULE TEXT

R865. Tax Commission, Auditing.

R865-6F. Franchise Tax.

R865-6F-36. Taxation of Registered Securities or Commodities Broker or Dealer Pursuant to Utah Code Ann. Sections 59-7-302 through 59-7-321.

A. Definitions.

1. "Brokerage commission income" means income earned by a registered securities or commodities broker or dealer from the purchase and sale of securities or commodities by the broker or dealer:

a) for which the broker or dealer does not take title; and

b) as an agent for a customer's account.

2. "Commodity" is as defined in Section 475(e)(2), Internal Revenue Code.

3. "Principal transaction" means a transaction where the registered securities or commodities broker or dealer acts as a principal or underwriter for the broker or dealer's own account, rather than as an agent for the customer.

4. "Registered securities or commodities broker or dealer" means a corporation registered as a broker or dealer with the Securities and Exchange Commission or the Commodities Futures Trading Commission.

5. "Security" is as defined in Section 475(c)(2), Internal Revenue Code.

6. "Securities or commodities used to produce income" means securities or commodities that are purchased and held by a registered securities or commodities broker or dealer as a principal or underwriter for resale to its customers.

B. Apportionment and allocation.

1. A registered securities or commodities broker or dealer whose business activity is taxable both within and without this state shall allocate and apportion its net income as provided in this rule. All items of nonbusiness income shall be allocated pursuant to the provisions of Section 59-7-306.

2. All business income shall be apportioned to this state by multiplying that income by the apportionment percentage. The apportionment percentage is determined by adding the taxpayer's property factor, payroll factor, and sales factor, and dividing that sum by three. If one of the factors is missing, the remaining factors are added and that sum is divided by two. If two of the factors are missing, the remaining factor is the apportionment percentage. A factor is missing if both its numerator and denominator are zero.

3. Except as otherwise provided in this rule, the property factor shall be determined in accordance with R865-6F-8(G), the payroll factor in accordance with R865-6F-8(H), and the sales factor in accordance with R865-6F-8(I).

C. Property factor.

1. The property factor is a fraction, the numerator of which is the average value of the taxpayer's real and tangible personal property owned or rented and used, or available for use, within this state during the taxable year, plus the average value of securities or commodities used to produce income during the taxable year that are held for resale exclusively through a branch, office, or other place of business in this state. The denominator is the average value of the total of the taxpayer's real and tangible personal property owned or rented and used within and without this state during the taxable year, plus the average value of all securities or commodities used to produce income during the taxable year.

2. Securities or commodities used to produce income shall be valued at original cost.

D. Sales factor.

1. The sales factor is a fraction, the numerator of which is the total revenue that is derived from transactions and activities in the regular course of the taxpayer's trade or business within this state during the taxable year. The denominator is the total revenue that is derived from transactions and activities in the regular course of the taxpayer's trade or business within and without this state during the taxable year.

2. Brokerage commission income shall be included in the denominator of the sales factor. Brokerage commission income shall be included in the numerator of the sales factor if the customer that is paying the commission is located in Utah. A customer is located in Utah if the mailing address of the customer as it appears in the broker or dealer's records is in Utah.

3. Gross receipts from principal transactions shall be included in the denominator of the sales factor. Gross receipts from principal transactions shall be included in the numerator of the sales factor if the sale is made through a branch, office, or other place of business in Utah. Gross receipts from principal transactions shall be determined after the deduction of any cost incurred by the taxpayer to acquire the securities or commodities.

4. Other gross receipts such as margin interest on brokerage accounts and account maintenance fees shall be included in the denominator of the sales factor, and, if the customer that is paying the amounts or fees is located in Utah based on the customer address as it appears in the broker or dealer's records, in the numerator of the sales factor.

 

KEY: taxation, franchises, historic preservation, trucking industries

[November 1, 2002]2004

Notice of Continuation April 3, 2002

59-7-302 through 59-7-321