What Is a Corporate Franchise Tax?

Corporate franchise tax is a tax imposed by a state to corporations, LLCs, and partnerships. This tax is assessed to these companies for the privilege of either doing business in the state or incorporating their business in that state. Like income taxes, typically franchise taxes are assessed annually. When a business fails to pay a franchise tax this may result in the business being disqualified from doing business in a particular state.

Corporate Franchise and Income Tax

There are two different types of taxes they can be assessed on businesses: corporate income taxes and franchise taxes. The difference is found in looking at what exactly is being taxed. Income taxes apply to profit. Franchise taxes do not apply to profit. Another difference between income tax and franchise tax is the entity that does the taxing.

Income tax

Companies pay income taxes on the company's profit, or the company's net income. Companies that don't make a profit do not have corporate income tax liability. As a general rule, only corporations are required to pay corporate income taxes. Sole proprietor ships, limited liability companies, and partnerships do not pay income taxes. Instead, profits of those types of companies pass on to the owners. The owners then pay income taxes. Small business corporations that operate as S corporations also don't pay federal income taxes. However, S corporations may be responsible to pay state taxes.

Corporate Franchise Tax

Corporate franchise taxes are essentially fees assessed to companies, paid for the privilege of doing business in a particular city or state. Franchise taxes are not based on profit. Even companies that make very little money, break even, or lose money may be required to pay franchise taxes. Franchise taxes come in many forms. For example, franchise taxes may be simply a flat fee. Alternatively, the franchise tax may be based on the net worth of the company. Still other jurisdictions base their franchise tax on the company's gross receipts, in other words the amount of business that a company performs in the jurisdiction. There are different types of companies that are subject to franchise taxes in different states. However, it is common for franchise taxes to be assessed not just to corporations but other companies as well.

Geography

In addition to federal corporate income tax, some states assess a corporate income tax.  Some cities also assess corporate income taxes. Frequently states assess a corporate income tax using a single rate for all corporations, regardless of the size of their income. Other states have a series of different tax brackets. Only about half the states impose a franchise tax. The federal government does not impose a franchise tax and they have no equivalent to the franchise tax. The way to determine whether a business is subject to the state corporate income tax or the state franchise tax depends on whether a business has a nexus in the state.

Nexus

As a general rule, businesses pay corporate franchise tax if they have annexes to the state seeking to assess the corporate franchise tax. When a business doesn't have a company that does business in a given state there is no nexus to that state, and there's no liability and no tax consequences. Federal law requires a physical presence within a state, either a business address or business location within the state for corporate tax. However, for franchise tax purposes a physical presence is not required. Generally, the rule is if you are required to collect sales tax based on sales to customers in a particular state, there is probably sufficient nexus to that state to be required to pay franchise tax. States, however, have different rules. Frequently, companies with a presence in many different states hire professionals to assist them in sorting out tax nexus issues.

Why Franchise Taxes May Not Be Good for Businesses

Franchise taxes are frequently referred to as "privilege taxes." This means that they are the taxes imposed on entities for "the privilege" of being able to do a business, provide a service, or sell products within a state. There are some states, such as Louisiana, that impose both income taxes and franchise taxes on companies doing business in the state. This results in the tax rate for the state being higher, and it can also result in driving businesses out of the state. Other states are choosing to eliminate franchise taxes. States like West Virginia have found that eliminating the franchise tax encourages business growth.

What States Have Franchise Taxes?

Currently, there are 14 states that have franchise taxes including:

  • Alabama
  • Arkansas
  • Delaware
  • Georgia
  • Illinois
  • Mississippi
  • Missouri
  • New York
  • North Carolina
  • Oklahoma
  • Pennsylvania
  • Tennessee
  • Texas

How Do States Determine Franchise Taxes?

Each individual state has their own individual criteria for determining the type of entities that are required to pay franchise tax, how they are going to taxes such entities, and the rate at which they're going to tax such entities.

States base franchise taxes on different criteria which can include the following: income, in which case the franchise tax acts functionally the same as an income tax; based on the number of shares of stock, the value of capital stock, where the par value of stock; or other methods.

Corporate Franchise Tax Applies to C Corporations

Corporations (and some partnerships) taxed under subchapter C of the internal Revenue Code, commonly referred to as “C Corps” are subject to the corporate franchise tax.

Entities Exempt From the Corporate Franchise Tax

There are a number of entities that are exempt from corporate franchise tax. These include so called “pass through entities.” Pass through entities include most partnerships, limited liability corporations, and S Corps. The types of businesses pay tax on their individual tax returns, rather than on the business entity’s income. These entities are subject to minimum fees, as discussed further below. C Corps work differently than S Corps. C Corps pay tax as individual income tax for the profits distributed by the corporation as dividends. They also pay tax as a corporate entity for profits that are earned.

Insurance companies are also exempt from corporate franchise taxes. Instead, insurers pay something referred to as a “premium tax.”

Credit unions are also not taxed under corporate franchise taxes. Federal law protects federally chartered credit unions from this type of taxation. State laws also extend an exemption to state chartered credit unions, exempting them from corporate franchise taxes.

Charitable organizations, and other business entities which are exempt from federal income taxes, similarly are not subject to federal corporate franchise taxes.

Tax Base as Profits

A company's tax base is considered taxable income. Put another way, the profits of C corporations, which are taxable income, is the tax base. State law defines the tax base by referencing the definition of taxable income using the definition provided for federal corporate income tax. By way of example, consider federal depreciation rules. Generally federal depreciation rules are followed in states such as Minnesota, with the exception that bonus depreciation and expensing are subject to special rules in the state of Minnesota. Minnesota deviates from the federal rules in a few other ways. For example, it taxes some income the federal law considers exempt from taxes. This includes state bond interest and local bond interest. It also does not allow for percentage depletion in their tax structure. Minnesota applies a flat tax rate of 9.8 percent to Minnesota-based taxable income.

Income Apportionment

In states like Minnesota, income is apportioned based on the percentage of sales a business makes to Minnesota buyers. Many corporations, particularly in the internet age, make numerous sales across state lines. Under the United States Constitution, states are only allowed to tax for the income of a business that is "fairly apportioned" to the activity the business performed within that state. All states use a formula apportionment considering the in-state percentage of one or more factors. Minnesota, for example, takes a multistate corporations’ income and considers the proportion of sales made to buyers within the state of Minnesota. When there is a unitary business which operates through several corporations, such as a parent subsidiary combination, all the income for the business is combined. This method is referred to as the combined reporting method.

Various Tech Tax Credits Apply

Corporate franchise taxes can be reduced by tax credits. There are several different tax credits that are available to businesses. These include tax credits for the following types of things:

  • Research and development
  • Jobs credit under the JOBZ program
  • Historic structure rehabilitation credit
  • Taxes paid to different state

Revenues Go to the General Fund

Revenues gained from corporate franchise tax collections go to the general fund. For example, the Minnesota Management and Budget office estimated that in February 2015, corporate franchise tax collections totaled approximately $1.32 billion for fiscal year 2015. The Minnesota Management and Budget office also estimated that 2016's corporate franchise tax collection would amount to approximately $1.3 billion.

Revenues for Federal Franchise Tax Are Volatile

With corporate franchise tax collection, these tax revenues are the most volatile. When the economy goes into a recession, corporate profits drop and franchise tax revenues also drop. For example, in 2007, which was considered an expansion year, revenues were 1.17 billion in the state of Minnesota. By 2010 during the recession, revenues had dropped to 663 million in the state of Minnesota. This is a reduction of 43 percent in just three years. Five years later, in 2012, revenues had recovered to 1.04 billion. This led to an increase in corporate franchise tax for the state of Minnesota of 57 percent.  Such volatility makes it difficult for states to rely on corporate franchise tax as a steady source of revenue.

A Minimum Tax Applies in Franchise Tax Law

An alternative minimum tax, also referred to as an AMT, applies under the franchise tax codes in some states. This state AMT tax closely follows a similarly situated federal AMT. It works like this: corporations compute the taxes owed under the alternative minimum tax using a broad tax base - in other words less generous depreciation rules - and calculates this rate against a similar calculation under a lower tax rate. If the alternative minimum tax, or AMT, results in a higher amount of tax to be paid, the corporation is obligated to pay the higher amount to the state as their share due.

A Minimum Fee Applies to Most Entities

All corporations, including S corporations and C corporations, as well as partnerships, and Limited Liability Corporations, must pay, in some states, a minimum fee in addition to the minimum tax. This minimum fee is based on their property owned within the state, their sales, and their payroll. This fee is considered an add on fee. In other words, it is “added on” to the taxes due and owing. This fee is paid in addition to the tax the corporation has computed under either their regular income tax or alternate minimum tax. In Minnesota, in 2013, the Minnesota Legislature increased these fee amounts. Additionally, the Minnesota Legislature provided for a rule which allows the state to adjust for inflation each year going into the future.

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