LA Rev Stat § 47:287.95 (2021)
2021 Louisiana Laws|Revised Statutes|Title 47 - Revenue and Taxation|§287.95. Determination of Louisiana apportionment percent

RS 287.95 - Determination of Louisiana apportionment percent  A. Air transportation. (1) Except as provided for in Paragraph (2) of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of transportation by aircraft shall be the arithmetical average of two ratios, as follows:  (a) The ratio of the value of immovable and corporeal movable property, other than aircraft, owned by the taxpayer and located in Louisiana to the value of all immovable and corporeal movable property, other than aircraft, owned by the taxpayer and used in the production of apportionable income.  (b) The ratio of the amount of gross apportionable income derived from Louisiana sources to the total gross apportionable income of the taxpayer.  (2) For taxable periods beginning on or after January 1, 2016, and for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of transportation by aircraft shall be computed by means of a single ratio consisting of the ratio provided for in Subparagraph (1)(b) of this Subsection.  (3) For the purposes of this Subsection, gross apportionable income from Louisiana sources shall include all gross receipts derived from passenger journeys and cargo shipments originating in Louisiana and any other items of gross apportionable income or receipts derived entirely from sources in this state.  B. Pipeline transportation. The Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of transportation by pipeline shall be computed by means of the ratios provided in Subsection F of this Section.  C. Other transportation. (1)(a) Except as provided in Subparagraph (b) of this Paragraph, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of transportation, other than by aircraft or pipeline, shall be the arithmetical average of two ratios, as follows:  (i) The ratio of the value of immovable and corporeal movable property owned by the taxpayer and located in Louisiana to the value of all immovable and corporeal movable property owned by the taxpayer and used in the production of apportionable income.  (ii) The ratio of the amount of gross apportionable income from Louisiana sources to the total amount of gross apportionable income of the taxpayer.  (b) For taxable periods beginning on or after January 1, 2016, and for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of transportation, other than by aircraft or pipeline, shall be computed by means of a single ratio consisting of the ratio provided for in Item (a)(ii) of this Paragraph.  (c) For the purposes of this Subsection, the gross apportionable income from Louisiana sources shall include all such income that is derived entirely from sources within the state and a portion of revenue from transportation partly without and partly within this state, to be prorated subject to rules and regulations of the secretary, who shall give due consideration to the proportion of service performed in Louisiana.  (d) For the purposes of this Subsection, the value of immovable and corporeal movable property owned by the taxpayer and used in Louisiana shall include the value of all such property regularly situated in this state, plus a pro rata of the value of all rolling stock and other mobile equipment owned by the taxpayer and used in the production of apportionable income, whether within or without this state, said proration to be made subject to rules and regulations of the secretary, who shall give due consideration to the mileage operated and traffic density within and without this state.  (2)(a) Notwithstanding any other provisions of this Part to the contrary, this Subsection shall not require the apportionment of income to this state of any trucking company whose Louisiana net income is derived solely from the business of transportation by truck if during the course of the income tax year:  (i) It does not own or rent any real or personal property in this state, except mobile property.  (ii) It makes no pickups or deliveries within this state.  (iii) It makes no more than twelve trips into this state.  (b) As used in this Paragraph, the term "trucking company" means a motor carrier as defined by the provisions of R.S. 32:1(37) or R.S. 45:162(10), or an express carrier which primarily transports the tangible personal property of others by motor vehicle for compensation.  D. Service enterprises. (1) Except as provided in Paragraph (2) of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from a service business in which the use of property is not a substantial income-producing factor shall be the arithmetical average of two ratios, as follows:  (a) The ratio of the amount paid by the taxpayer for salaries, wages, and other compensation for personal services rendered in Louisiana to the total amount paid by the taxpayer for salaries, wages, and other compensation for personal services in connection with the production of the net apportionable income.  (b) The ratio of the gross apportionable income of the taxpayer from Louisiana sources to the total gross apportionable income of the taxpayer.  (2) For taxable periods beginning on or after January 1, 2016, and for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from a service business in which the use of property is not a substantial income-producing factor shall be computed by means of a single ratio consisting of the ratio provided for in Subparagraph (1)(b) of this Subsection.  (3) For the purposes of this Subsection, the gross apportionable income from Louisiana sources shall include the revenue from services sourced to this state, and any other gross income derived entirely from sources within this state.  E. Oil and gas.  (1) For taxable periods beginning on or after January 1, 2016, for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the exploration, production, refining, or marketing of oil and gas shall be the arithmetical average of four ratios, as follows:  (a) The ratio of the value of the immovable and corporeal movable property owned by the taxpayer and located in Louisiana to the value of all immovable and corporeal movable property owned by the taxpayer and used in the production of the net apportionable income.  (b) The ratio of the amount paid by the taxpayer for salaries, wages, and other compensation for personal services rendered in this state to the total amount paid by the taxpayer for salaries, wages, and other compensation for personal services in connection with the production of net apportionable income.  (c) The ratio of net sales made in the regular course of business and other gross apportionable income attributable to this state to the total net sales made in the regular course of business and other gross apportionable income of the taxpayer. The ratio of net sales as provided in this Subparagraph shall be double-weighted or counted twice.  (2) For purposes of this Subsection, "exploration, production, refining, or marketing of oil and gas" shall mean:  (a) Any taxpayer whose income is primarily derived from the production or sale of unrefined oil and gas.  (b) Any taxpayer defined as an integrated oil company per the United States Internal Revenue Code - 26 U.S.C. 291(b)(4), or integrated oil companies that refine, produce, and have marketing operations, whose income in Louisiana is principally derived from production and sale of unrefined oil and gas, and who also engage in significant marketing of refined petroleum products in Louisiana. Provided, any taxpayer, whose activities during the taxable year do not include any "gross receipts from retail sales of oil and/or natural gas", or any "refinery activities of oil and/or natural gas", will not be considered as an integrated oil company for Louisiana tax purposes, notwithstanding such taxpayer may be a "related party" or a "member of the federal consolidated group" under the United States Internal Revenue Code.  F. Manufacturing, merchandising, and other business. (1) Except as provided in this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of transportation by pipeline or from any business not included in Subsections A through E of this Section shall be the arithmetical average of three ratios, as follows:  (a) The ratio of the value of the immovable and corporeal movable property owned by the taxpayer and located in Louisiana to the value of all immovable and corporeal movable property owned by the taxpayer and used in the production of the net apportionable income.  (b) The ratio of the amount paid by the taxpayer for salaries, wages, and other compensation for personal services rendered in this state to the total amount paid by the taxpayer for salaries, wages, and other compensation for personal services in connection with the production of net apportionable income.  (c) The ratio of net sales made in the regular course of business and other gross apportionable income attributable to this state to the total net sales made in the regular course of business and other gross apportionable income of the taxpayer.  (2)(a) For taxable periods beginning on or after January 1, 1997, and ending on or before December 31, 2005, and for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of manufacturing or merchandising shall be computed by means of the ratios provided in Subparagraphs (1)(a) through (c) of this Subsection, except that the ratio of net sales as provided in Subparagraph (c) shall be double-weighted or counted twice, and the Louisiana apportionment percent shall be the arithmetical average of the four ratios.  (b)(i) For taxable periods beginning on or after January 1, 2006, and for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from the business of manufacturing or merchandising shall be computed by means of a single ratio consisting of the ratio provided for in Subparagraph (1)(c) of this Subsection.  (ii) For taxable periods beginning on or after January 1, 2016, and for the purpose of this Subsection, the Louisiana apportionment percent of any taxpayer whose net apportionable income is derived primarily from transportation by pipeline or from any business not included in Subsections A through E of this Section shall be computed by means of a single ratio consisting of the ratio provided for in Subparagraph (1)(c) of this Subsection.  (c) The term "business of manufacturing or merchandising" shall only include a taxpayer whose net apportionable income is derived primarily from the manufacture, production, or sale of tangible personal property. The term "business of manufacturing or merchandising" shall not include:  (i) A taxpayer subject to the tax imposed pursuant to Chapter 8 of Subtitle II of this Title.  (ii) Any taxpayer whose income is primarily derived from the production or sale of unrefined oil and gas.  (iii) Any taxpayer defined as an integrated oil company per the United States Internal Revenue Code - 26 U.S.C. 291(b)(4), or integrated oil companies that refine, produce, and have marketing operations, whose income in Louisiana is principally derived from production and sale of unrefined oil and gas, and who also engage in significant marketing of refined petroleum products in Louisiana. Provided, any taxpayer, whose activities during the taxable year do not include any "gross receipts from retail sales of oil and/or natural gas", or any "refinery activities of oil and/or natural gas", will not be considered as an integrated oil company for Louisiana tax purposes, not withstanding such taxpayer may be a "related party" or a "member of the federal consolidated group" under the United States Internal Revenue Code.  (3) For the purpose of this Subsection, sales attributable to this state shall be all sales where the goods, merchandise, or property is received in this state by the purchaser. In the case of delivery of goods by common carrier or by other means of transportation, including transportation by the purchaser, the place at which the goods are ultimately received after all transportation has been completed shall be considered as the place at which the goods are received by the purchaser. However, direct delivery into this state by the taxpayer to a person or firm designated by a purchaser from within or without the state shall constitute delivery to the purchaser in this state. For purposes of sales of aircraft manufactured or assembled in this state, the place at which the aircraft is ultimately received shall be the place the aircraft is to be primarily stored when not in use.  (4) For the purpose of this Subsection, salaries, wages, and other compensation for personal services paid by a taxpayer whose principal office is located in Louisiana to officers and employees responsible for the direction and supervision of operations of the taxpayer partly within and partly without Louisiana and salaries, wages, and other compensation for personal services paid to general office employees whose duties pertain to the operations of the taxpayer partly within and partly without Louisiana shall be allocated in part to this state on the basis of the ratio of the amount of direct operating salaries, wages, and other compensation for services rendered in Louisiana to the total of such direct operating salaries, wages, and other compensation paid in connection with the production of net apportionable income.  (5) For the purpose of this Subsection, gross apportionable income attributable to this state derived from the transportation of crude petroleum, natural gas, petroleum products, or other commodities for others through pipelines shall include all gross revenue derived from operations entirely within this state plus a portion of any revenue from operations partly within and partly without this state, based upon the ratio of the number of units of transportation service performed in Louisiana in connection with such revenue to the total of such units. A unit of transportation service shall be the transporting of any designated quantity of crude petroleum, natural gas, petroleum products, or other commodities for any designated distance. All other classes of gross apportionable income shall be prorated within or without this state on the basis of such ratio or ratios, prescribed by the secretary, as may be reasonably applicable to the type of business involved.  G. Value. For the purposes of this Section, the value at which immovable and corporeal movable property should be included in the apportionment factor is the average of the beginning and close of year values on a comparable basis within and without the state. If the average at the beginning and end of the year does not fairly represent the average of the property owned during the year, the average may be obtained by dividing the sum of the monthly balances by twelve. For the purposes of this Section, the value of property is deemed to be cost to the taxpayer less a reasonable reserve for depreciation, depletion, and obsolescence. Such reserves, reflected on the books of the taxpayer, shall be used in determining value, subject to the right of the secretary to adjust the reserves when in his opinion such action is necessary to reflect the fair value of the property.  H. Location. For purposes of this Section, corporeal movable property located in Louisiana in United States customs-bonded warehouses or foreign trade zones established under the Foreign Trade Zones Act shall be considered as located outside of Louisiana.  I. Repealed by Acts 2002, No. 16, §2, eff. June 7, 2002.  J. Corporations utilizing common paymaster. (1) For purposes of this Section, a parent corporation or any other member of the same affiliated group of corporations serving as common paymaster for payroll purposes shall eliminate all payrolls from the numerator and denominator of its salary, wages, and other compensation factor computation that represent the amounts paid on behalf of affiliated corporations for which it has charged such affiliate the cost and that does not meet the definition of salary, wages, and other compensation insofar as the common paymaster is concerned. A subsidiary or other member of an affiliated group that is a member of or participant in a common paymaster plan for payroll purposes shall include in its numerator and denominator of the salary, wages, and other compensation factor computation amounts paid to a common paymaster as reimbursement in whatever form and by whatever label for salary, wages, and other compensation as defined.  (2) For purposes of this Section, "salary, wages, and other compensation" means remuneration paid or caused to be paid to employees for personal services. Payments made to an independent contractor or any other person not properly classifiable as an employee are excluded.  (3) For purposes of this Section, "employee" means any officer of a corporation, or any individual who has the status of an employee in an employer-employee relationship. Generally, a person will be considered to be an employee if he is included by the taxpayer as an employee for purposes of the payroll taxes imposed by the Federal Insurance Contributions Act.  K. Attribution of revenue from television, radio, and other broadcasting.  (1) Definitions. For the purposes of this Subsection, the following terms have the following meanings unless the context clearly indicates otherwise:  (a) "Broadcast" means transmission by an electronic or other signal conducted by radio waves or microwaves or by wires, lines, coaxial cables, wave guides, fiber optics, satellite transmissions directly or indirectly to viewers and listeners, or by any other means of communications.  (b) "Commercial domicile" shall mean the state where management decisions are implemented, which is presumed to be the state where the taxpayer conducts its principal business and thereby benefits from public facilities provided by that state. The location of board of directors' meetings is not presumed to create a commercial domicile at that location.  (c) "Customer" shall mean a business or party, such as an advertiser or licensee, that has a contract or agreement directly with the taxpayer under which revenue is derived by such taxpayer.  (d) "Film" or "film programming" means all performances, events, or productions intended to be broadcast for visual perception, including but not limited to news, sporting events, plays, stories, or other literary, commercial, educational, or artistic works. Each episode of a series of films shall constitute a separate "film" even if the series relates to the same principal subject.  (e) "Radio" or "radio programming" means all performances, events, or productions intended to be broadcast for auditory perception, including but not limited to news, sporting events, plays, stories, or other literary, commercial, educational, or artistic works. Each episode of a series of radio programming shall constitute a separate "radio programming" even if the series relates to the same principal subject.  (f) "Subscriber" means the individual residence or other outlet that is the ultimate recipient of the transmission.  (2) Gross apportionable income, including license fees, from broadcasting film or radio programming, whether through the public airwaves, by cable, direct or indirect satellite transmission, or any other means of communication, either through a network, including owned and affiliated stations, or through an affiliated, unaffiliated, or independent television or radio broadcasting station, shall be attributed to this state as follows:  (a) Except as otherwise provided by this Subsection, for purposes of computing the apportionment percents provided by Subsections A through F of this Section, the amount of gross apportionable income, including advertising income, attributed to this state from broadcasting film or radio programming shall be determined by multiplying the total gross apportionable income from broadcasting film or radio programming, including advertising revenue, by the audience factor.  (b) For purposes of attributing the gross apportionable income earned by a local television or radio station, the audience factor shall be determined by the ratio of the taxpayer's Louisiana viewing or listening audience to their total viewing or listening audience. The audience factor shall be determined based on the books and records of the taxpayer or on published rating statistics. However, the method used to determine the audience factor must be used consistently from year to year and must fairly represent the taxpayer's activity in Louisiana.  (c)(i) For purposes of attributing the gross apportionable income earned by a cable television system, satellite television system, or other system, hereinafter referred to collectively in this Paragraph as "cable or satellite system", under which ultimate viewers or listeners must pay the cable or satellite system for the right to receive the broadcast, the audience factor shall be the ratio that the subscribers for that cable or satellite system located in Louisiana bears to the total subscribers of that cable or satellite system if the payment entitles the ultimate viewers or listeners to continuous reception of programming during a subscription period.  (ii) If the number of subscribers cannot be accurately determined from the taxpayer's books and records, the audience factor shall be determined based on the applicable year's subscription statistics located in published surveys. However, the source selected to determine the audience factor must be consistently used from year to year and must fairly represent the taxpayer's activity in Louisiana.  (iii) If the payment entitles the ultimate viewers or listeners to only discrete episodes or instances of film or radio programming, the audience factor shall be the ratio of the subscribers for such discrete programming located in Louisiana to the total subscribers for such discrete programming. If the number of subscribers for such discrete episodes or instances cannot be accurately determined from the taxpayer's books and records, the audience factor shall be determined based on statistics located in published surveys. However, the source selected to determine the audience factor must be consistently used from year to year and must fairly represent the taxpayer's activity in Louisiana.  (d)(i) For purposes of computing the apportionment percent provided in Subsections A through F of this Section, the amount of gross apportionable income attributed to this state from all other film and radio broadcasting shall be determined by multiplying the total gross apportionable income from such film and radio broadcasting by the ratio of income received from Louisiana customers to income received from customers everywhere; however, the gross apportionable income attributable to the state using this ratio shall not be less than twenty-five percent of the amount which would be attributable if calculated using an audience factor as defined in Subparagraph (b) of this Paragraph.  (ii) For purposes of this Subparagraph, gross apportionable income includes advertising income and income from cable or satellite systems and local television and radio stations. "Louisiana customers" includes cable or satellite systems, local television and radio stations, and advertisers with a commercial domicile in the state and a contract or agreement directly with the taxpayer under which revenue is derived by such taxpayer. Notwithstanding the provisions of Subparagraph (1)(b) of this Subsection, if the taxpayer's customer is a television or radio station operating in Louisiana, then the commercial domicile of the customer is deemed to be Louisiana. This provision shall have no impact on the tax filing position of the customer.  L. Sourcing of certain sales.  (1) Sales other than sales of tangible personal property are to be sourced to this state if the taxpayer's market for the sale is in this state. The taxpayer's market for a sale is in this state and the sale is assigned to the state for the purpose of this Section as follows:  (a) In the case of sale, rental, lease, or license of immovable property, if and to the extent the property is located in the state.  (b) In the case of rental, lease, or license of tangible personal property, if and to the extent the property is located in the state.  (c) In the case of sale of a service, if and to the extent the service is delivered to a location in the state. The delivery of a tangible medium representing the output of a service does not control the sourcing of receipts from the underlying service.  (d) In the case of lease or license of intangible property, including a sale or exchange of such property where the receipts from the sale or exchange derive from payments that are contingent on the productivity, use, or disposition of the property, if and to the extent the intangible property is used in the state.  (e) In the case of the sale of intangible property, other than as provided in Subparagraph (d) of this Paragraph, where the property sold is a contract right, government license, or similar intangible property that authorizes the holder to conduct a business activity in a specific geographic area, if and to the extent that the intangible property is used in or otherwise associated with the state; provided, however, that any sale of intangible property, not otherwise described in this Subparagraph and Subparagraph (d) of this Paragraph, shall be excluded from the numerator and the denominator of the sales factor.  (2) In the case where the taxpayer's customer is an individual, the taxpayer shall source receipts from the sale of a service as follows:  (a) In the case where a taxpayer's customer is a natural person and the service provided is a direct personal service, the sale shall be sourced to the state where the customer received the direct personal service.  (b) Services that are not direct personal services that are delivered to customers who are natural persons with a Louisiana billing address shall be sourced to this state.  (c) In the case where the sourcing methodology specified by Subparagraph (a) or (b) of this Paragraph fails to clearly reflect the taxpayer's market in this state, the taxpayer may utilize, or the department may require, the use of other criteria and methodologies that will reasonably approximate the taxpayer's market in this state. If an alternate approach is utilized, the taxpayer shall attach to the tax return a detailed explanation of why it was unreasonable to utilize the methodology specified by Subparagraph (a) or (b) of this Paragraph and an explanation of the methodology used. If the taxpayer fails to make such a disclosure on the return, the taxpayer shall be presumed to consent to the sourcing as detailed in Subparagraph (a) or (b) of this Paragraph as applicable.  (3) In the case where the taxpayer's customer is an entity that is unrelated to the taxpayer, the taxpayer shall source receipts from the sale of a service as follows:  (a) To the extent a service is provided to an unrelated entity and the service being provided has a substantial connection to a specific geographic location, the income shall be sourced to Louisiana if the geographic location is in this state. If the service receipts have a substantial connection to geographic locations in more than one state, the sales shall be reasonably sourced between those states.  (b) To the extent a service is provided to an unrelated entity and the service being provided does not have a substantial connection to a specific geographic location, sales from services delivered to unrelated entities shall be sourced to the commercial domicile of the taxpayer.  (c) In the case where the sourcing methodology specified by Subparagraph (a) or (b) of this Paragraph fails to clearly reflect the taxpayer's market in this state, the taxpayer may utilize, or the department may require, the use of other criteria and methodologies that will reasonably approximate the taxpayer's market in this state. If an alternate approach is utilized, the taxpayer shall attach to the tax return a detailed explanation of why it was unreasonable to utilize the methodology specified by Subparagraph (a) or (b) of this Paragraph and an explanation of the methodology used. If the taxpayer fails to make such a disclosure on the return, the taxpayer shall be presumed to consent to the sourcing as detailed in Subparagraph (a) or (b) of this Paragraph as applicable.  (d) The secretary shall promulgate rules pursuant to the Administrative Procedure Act concerning the sourcing of the sales of services between related entities.  (e) As used in this Subsection, a related entity shall include:  (i) A stockholder, or a stockholder's partnership, or juridical person, if the stockholder and the stockholder's partnerships, or juridical persons, own directly, indirectly, beneficially, or constructively, including as provided for under 26 U.S.C. 318, in the aggregate, at least fifty percent of the value of the taxpayer's outstanding stock.  (ii) A corporation, or a party related to the corporation in a manner that would require an attribution of stock from the corporation to the party or from the party to the corporation under the attribution rules of 26 U.S.C. 318, if the taxpayer owns, directly, indirectly, beneficially, or constructively, at least fifty percent of the value of the corporation's outstanding stock.  (iii) "Related party" means any member of a controlled group of corporations as defined in 26 U.S.C. 1563, or any other person that would be a member of a controlled group if rules similar to those in 26 U.S.C. 1563, were applied to that person.  (4) Whenever a taxpayer is subjected to different sourcing methodologies regarding intangibles or services by the department and one or more other state taxing authorities, the taxpayer may petition for, and the department shall participate in, and encourage the other state taxing authorities to participate in, non-binding mediation in accordance with rules promulgated in accordance with the Administrative Procedure Act.  M. If the taxpayer is not taxable in a state to which a sale is assigned or if the state of assignment cannot be determined or reasonably approximated pursuant to this Section and the regulations thereunder, the sale shall be excluded from the numerator and the denominator of the sales factor.  Acts 1986, 1st Ex. Sess., No. 16, §1, eff. Dec. 24, 1986; Acts 1988, No. 841, §1, eff. July 18, 1988; Acts 1993, No. 690, §1, eff. June 21, 1993; Acts 1996, No. 19, §1, eff. for taxable years beginning on or after Jan. 1, 1997; Acts 1998, No. 2, §1, eff. for taxable periods beginning after Dec. 31, 1998; Acts 1998, No. 26, §1, eff. June 24, 1998, applicable to taxable periods beginning on or after Jan. 1, 1998; Acts 2002, No. 16, §2, eff. June 7, 2002; Acts 2002, No. 65, §1, eff. for taxable periods beginning after Dec. 31, 2001; Acts 2005, No. 401, §§1, 2, eff. for all taxable periods beginning after Dec. 31, 2005; Acts 2011, No. 381, §1; Acts 2015, No. 112, §1, eff. June 19, 2015; Acts 2016, 2nd Ex. Sess., No. 8, §1, eff. June 28, 2016. NOTE: Acts 2011, No. 381, §3 provides that the Act is applicable for all corporate income tax periods beginning on or after Jan 1, 2012, and for all corporation franchise tax periods beginning on or after Jan. 1, 2013.  NOTE: See Acts 2016, 2nd Ex.Sess., No. 8, §2 regarding applicability.