March 1, 1995
CHARLES A. AND DOLORES C. SABINO, PLAINTIFFS
DIRECTOR, DIVISION OF TAXATION, DEFENDANT
The opinion of the court was delivered by: Dougherty
The issue in the Complaint filed in this matter was whether Charles A. Sabino (Taxpayer) and Dolores C. Sabino (collectively, Taxpayers) were entitled to deduct certain items in the computation of their Gross Income Tax category "distributive share of partnership income". The term "distributive share of partnership income" is set out at N.J.S.A. 54A:5-1(k). *fn1
The items of deduction in question fall into two categories: the Direct Expenses, which consist of unreimbursed expenses of a partner; and the Contributions, which constitute a partner's share of payments characterized for Federal income tax purposes as deductible under the provisions of § 170 of the Internal Revenue Code of 1986 (IRC).
The facts underlying the original controversy were not complicated. During 1985, Charles A. Sabino was actively engaged in the business of accountancy as a partner of Peat Marwik Mitchell & Company (Peat Marwick). Peat Marwick was and continues to be a partnership formed and existing under the laws of the State of New York. Each of Peat Marwick's 1400 partners *fn2 was allocated a percentage share of partnership income and a percentage share of partnership expenses under the terms of the written agreement among them (Partnership Agreement).
Taxpayers have asserted that the Partnership Agreement also provided that certain expenses incurred individually by a partner in the conduct of partnership business would be paid directly by that partner and, in turn, that partner would be "allocated" any available income tax deduction for such direct expenditure. These expenses would not be reimbursed by Peat Marwick.
In 1985 Taxpayer incurred the following expenses, which it was claimed were incurred in the conduct of Peat Marwick's (i.e. the partners') business: (a) $3,513 of vehicle expenses; (b) $80 of parking expenses and tolls; (c) $600 of travel away from home expenses including meals, lodging, air travel, car rentals and taxi expenses; and (d) $8,509 for entertainment, gifts and other business expenses. Peat Marwick reimbursed a portion of these expenses, totalling $5,214. The balance of $7,488 (the Direct Expenses) were not reimbursed to Taxpayer.
For its 1985 tax year, Peat Marwick made payments (the Contributions) to a number of organizations which qualified as "charitable organizations" under the provisions of IRC § 501(c)(3), including various educational institutions and the Peat, Marwick, Mitchell Foundation. *fn3 Under the terms of the Partnership Agreement, Taxpayer's proportionate share of the Contributions was $3,315.
Taxpayers timely filed their 1985 NJ-1040 Resident Income Tax Return, and attached a copy of the Federal Schedule K-1 ("Partner's Share of Income, Credits, Deductions, etc.") Form 1065, issued by Peat Marwick (K-1), together with copies of various other State income tax returns filed by Taxpayers for tax year 1985, and their Schedule E ("Supplemental Income and Loss (From rental real estate, royalties, partnerships, estates, trusts, REMICs, etc)") to the Federal Form 1040 (the Individual income tax return).
The 1985 K-1 requires a partnership to set out, for information purposes, each partner's "distributive share item(s)" *fn4 of the following categories of income and deduction: (i) "Income (Loss", which includes items of "net" ordinary income (loss) of the partnership and requires the partnership to set out separately: Guaranteed Payments to the individual partners; Dividends qualifying for the (then) allowable exclusion from Federal gross income; Net short-term (and long-term) capital gain (loss); Net gain (loss) under IRC § 1231; *fn5 and any " other" income; (ii) "Deductions", including Charitable Contributions set out in accordance with the applicable percentage limitation categories of IRC § 170(b); IRC § 179 expense deductions (i.e. whereby a taxpayer takes an immediate expense deduction rather than a depreciation deduction); *fn6 IRA payments; 401(k) and Simplified Employee Pension Plan payments; and "Other" Deductions; (iii) "Credits", including Jobs Credits, Credit for Alcohol Used as Fuel, Credit for Income Tax Withheld and "Other" credits; (iv) "Net Earnings From Self Employment", in conjunction with the computation of the self employment tax; (v) "Tax Preference Items"; (vi) "Investment Interest expense items"; (vii) "Foreign Taxes"; (viii) "Other items and amounts not [previously] included . . . that are required to be reported separately . . ."; and (ix) "Investment Credit and Investment Credit Recapture Items". In general, the Schedule accommodates the requirements of IRC § 703(a)(1) that "[t]he taxable income of a partnership . . . be computed in the same manner as in the case of an individual [i.e, the netting process whereby the partnership's "ordinary income (loss)" is determined], except that . . . (1) the items described in section 702(a) shall be separately stated. . . ." The items set out in IRC § 702(a) are items which, if separately earned or incurred by the individual partner (i.e. not in his capacity as a partner), would result in an income tax liability for that partner different from the income tax liability which would result if the item had been netted with other partnership items and passed out as part of the partner's distributive share of the partnership's "ordinary income(loss)". *fn7 For example, Taxpayers' itemized deduction available under IRC § 170 for its share of the Contributions paid by Peat Marwick was entered on the 1985 Federal K-1 as a separately stated item. IRC § 170(b) would require Taxpayers to aggregate all Contributions, whether made by them individually, or by allocation from Peat Marwick or any other "pass through" entity in which they may have had an interest, in the taxable year and apply the percentage limitations of IRC § 170(b) to this total in order to determine the deduction allowable for the 1985 taxable year. *fn8 The 1985 K-1 therefore directs a taxpayer to the Instructions to Federal Form 1040 Schedule A to complete the calculation. Lumping the Contributions together with the "ordinary" income and expense items of the partnership at the entity level might lead to the avoidance of the IRC § 170(b) percentage limitations at the partner level, with a resultant distortion of Federal taxable income. In similar fashion, the 1985 K-1 required that items of capital gain and loss be passed through separately to the individual partners in order that the netting process and the limitation on deductibility of capital loss apply at the partner level. See IRC § 1201 et seq.
In computing their New Jersey Gross Income Tax liability (N.J.S.A. 54A:5-1, et seq.) Taxpayers deducted the $3,315 in Contributions set out on the Peat Marwick K-1 and the $7,488 in the (unreimbursed) Direct Expenses, reported on Taxpayers' Schedule E from the sum of the Schedule K-1 distributive share items of income.
The Director's Final Determination of Taxpayers' 1985 tax, issued on December 15, 1992, disallowed the deductions for both the Contributions and the Direct Expenses.
The parties agree that the Final Determination included no explanation of denial of the deduction for the Direct Expenses. As to the Contributions, it provided "(n)o deduction is allowed for charitable contributions which are not deductible directly by the partnership against ordinary income."
In March, 1994, Taxpayers filed a motion for summary judgment. That motion was brought on two bases: (1) that Director's failure to identify any legal or factual basis for the disallowance of the deductions was violative of the principles of equity, fairness and due process; and (2) that notwithstanding the absence of any basis for disallowance, the New Jersey Gross Income Tax Act, N.J.S.A. 54A:1-1 et seq., mandates that such deductions be allowed. The Director filed a cross-motion for summary judgment contending that the expenditures in question were not properly deductible in determining Taxpayers' "distributive share of partnership income" under the New Jersey Gross Income Tax Act. While Taxpayers' motion was pending, the Director articulated the following bases for disallowance of the deductions:
As To The Contributions:
The Division disallowed the deduction claimed by Mr. and Mrs. Sabino in their Gross Income Tax category "net [sic] distributive share of partnership income" for $3,315 of Section 501(c)(3) Payments allocated to Mr. Sabino by Peat Marwick on Mr. Sabino's Schedule K-1 because (i) as a matter of law expenditures reported by Peat Marwick on its Partnership Return solely as charitable contributions are in all cases not deductible for purposes of determining the net distributive share of partnership income for New Jersey Gross Income Tax purposes of a partner therein, and (ii) even if the reason set forth in clause (i) does not provide a proper basis for the denial, Mr. and Mrs. Sabino have not established to the Division's satisfaction that the Section 501(c)(3) Payments were ordinary and necessary business expenses of Peat Marwick's business of accountancy. *fn9
As To The Direct Expenses:
The Division has disallowed the deduction claimed by Mr. and Mrs. Sabino in their Gross Income Tax category "net [sic] distributive share of partnership income" for the $7,488 of Direct Expenses because (i) Peat Marwick did not pay such expenditures in the course of its business of accountancy, did not claim a deduction for them in determining its taxable income from its business of accountancy, was not entitled to claim a deduction for them in determining its taxable income from its business of accountancy and did not specifically allocate such a deduction to Mr. Sabino, and (ii) even if the reasons set forth in clause (i) do not provide a proper basis for the denial, Mr. and Mrs. Sabino have not established to the Division's satisfaction that the Direct Expenses were ordinary and necessary expenses of Peat Marwick's business of accountancy.
Subsequent to oral argument on the cross motions for summary judgment and prior to this Court's issuance of its decision on the merits of those motions, the Director withdrew the 1985 Gross Income Tax assessment relating to the items at issue in this case. The Director then moved for dismissal of the Complaint for lack of standing and mootness. The Court denied that motion by oral opinion, concluding that an actual controversy, which was bona fide and adversarial in nature, persisted between the parties and was cognizable under the Declaratory Judgments Act, N.J.S.A. 2A:16-51. *fn10 It was further found that the Act's stated purpose, to "settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations", was met by treating Taxpayers' claim as one for declaratory relief. N.J.S.A. 2A:16-51. Hungerford & Terry, Inc. v. Geschwindt, 24 N.J. Super. 385, 393 (Ch. 1953) aff'd 27 N.J. Super. 515. "A declaratory Judgment may be rendered under N.J.S.A. 2A:16-53 where there is an actual controversy between the parties which involves differing views on the meaning of applicable statutory provisions." N.J. Ass'n for retarded Citizens v. Human Services, 89 N.J, 234, 242 (1982). See also Union County Bd. Of Chosen Freeholders v. Union County Park Comm'n, 41 N.J. 333, 336 (1964); Hammond v. Doan, 127 N.J. Super. 67, 72 (Law 1972).
At oral argument of the Director's motion to dismiss, it was represented that the Director would change his position with respect to the deductibility of the Direct Expenses in future taxable years. The Director's position was stated by counsel as follows:
What the revised reg. *fn11 [sic] will provide is that if an expense would have been deductible by the partnership if it had been incurred directly by the partnership rather than by a partner, then it will be deductible by the partner if the partner does one of two things. And [sic] the first thing the partner can do is attach a statement to his tax return . . . signed by the tax matters partner as defined for federal purposes, if there is any, in which the [tax matters] partner, under penalties of perjury, describes in detail what the particular costs or expenses to which the statement relates [consist of] and [that] these are costs and expenses [were] incurred directly by the partner,. . . [and] the tax matters partner states that he has reasonable grounds to believe that such costs and expenses were ordinary and necessary . . . costs and expenses of the partnership's business and also the tax matters partner states that the . . . partnership and the partners have agreed on three points: (1) that the economic burden of such costs and expenses be borne by the [individual] partner; (2) the partnership has not reimbursed and will not reimburse the partner for the expense; and (3) that the partnership has allocated to the partner who incurred the expense the deduction. . . . The second alternative is if the partner who is seeking the deductible expense on his gross income tax return attaches to this return other evidence to demonstrate the facts that would have been contained in the tax matters partner's statement and clearly and convincingly proves that such cost and expense was an ordinary and necessary cost and expense of the partnership's business.
Clearly, while Taxpayers concurred in the Director's change in position with respect to the threshold requirement for deductibility being ". . . if the expense would have been deductible by the partnership . . . then it will be deductible by the partner . . .", the controversy continues over the standard for deductibility. That is, Taxpayers do not agree that the Director's "ordinary and necessary" standard is within the contemplation of N.J.S.A. 54A: 5-1b. That disagreement continues notwithstanding the Director's intention with respect to an amended regulation.
In like fashion, the controversy continues with respect to the Contributions. At oral argument of the motion to dismiss, the Director's position was explained as follows:
[t]he individual [sole proprietor] taxpayer's characterization of an item on his Federal tax return, or in the case of a partnership,. . . the partnership's characterization of an item on . . . [its] partnership tax return . . . for example, if a partnership characterizes a particular payment as [a] charitable contribution deductible under Section 170 for Federal income tax purposes, the Director can rely on that characterization . . . as indicating that the expense is not an ordinary and necessary expense of the partnership's business. . . . [Stated differently], [if a] sole proprietor on his Federal tax return characterized a payment to a charity as a charitable contribution deductible under 170 yet sought to deduct that payment as a business expense for Gross Income Tax purposes, . . . [the Division] could conclusively rely on his characterization of the item on his Federal return. . . . he taxpayer cannot rebut the presumption by providing evidence to the Director. The only way [to change the result would be by] . . . the taxpayer . . . in the sole proprietor's case, or the partnership, in the partnership's case,. . . filing an amended [Federal] return. . . . And changing it on the Federal return.
Taxpayers disagree with the Director's stated interpretation as to the standard for deductibility of the Contributions in two respects. First, Taxpayers do not agree that the character of the Contributions under the Gross Income Tax Act turns upon the character of the Contributions for Federal income tax purposes. Second, Taxpayers do not agree that the "ordinary and necessary" standard applies to determine the deductibility of the Contributions, any more than it applies with respect to the Direct Expenses.
The Taxpayers and the Director continue to have "genuine" disagreement regarding Taxpayers' reporting responsibilities under N.J.S.A. 54A:5-1 et seg. and the Director's regulations, as to both the Direct Expenses and as to the Contributions. Unquestionably, Taxpayers have the legal right to know the meaning of the law and its impact on their tax liability so that they may properly account to the State of New Jersey. The Director's withdrawal of the contested assessments has no binding effect upon the Division's future conduct and does not relate to the underlying issues in this matter; that is, to the meanings and proper interpretations of the statute and regulations. Accordingly, we turn now to the substantive issue which remains - the standard for deductibility under the Gross Income Tax Act of the Contributions and Direct Expenses.
Can charitable contributions made by a partnership and reported on a Federal return as being deductible pursuant to IRC § 170 be deducted by an individual partner under N.J.S.A. 54A:5-1(k)? Must Taxpayers demonstrate that the Contributions were "ordinary and necessary" expenses of the partnership's business, or merely that they were "incurred in the conduct of the partnership's business"?
While the Gross Income Tax Act includes "distributive share of partnership income" as a category of items falling within the definition of New Jersey "gross" income , nowhere does it define this term. *fn12 This lack of definition, when coupled with the significance of that term under Federal law, led, in the early years following the enactment of the Gross Income Tax, to confusion as to its meaning under the Act. Smith v. Director, Divisions of Taxation, 108 N.J. 19 (1987) (Smith) resolved the conflict by rejecting the Federal law definition.
A. The ordinary and necessary standard for deductibility set out in IRC § 162 does not apply under N.J.S.A. 54A:5-1b.
The parties agree that, ". . . insofar as income derived from a business conducted in proprietorship or partnership form . . . is concerned, [the Gross Income Tax Act] imposes a tax on net income." Smith, supra, 108 N.J. at 26-27. They agree that Taxpayers' net income from the Peat Marwick partnership interest should be determined "after provisions for all costs and expenses incurred in the conduct thereof", as provided under N.J.S.A. 54A:5-1b, and that the net income so derived will be subject to tax at the partner level, whether distributed or not. In general, Taxpayers contend that the phrase ". . . all costs and expenses" as it is used within N.J.S.A. 54A:5-1b, was held by the Supreme Court in Smith to mean just that; that is, that the "ordinary and necessary" standard for deductibility borrowed by the Director from the Federal law must be rejected in favor of the following - "was the expense incurred in the conduct of the partnership's business?"
The Director contends, relying upon N.J.A.C. 18:35-1.14(c) (adopted March 7, 1994, 26 N.J.R. 1241(b)), and in particular, upon Example 7, that only those expenses which are deductible under the provisions of IRC § 162 (that is as "ordinary and necessary" expenses) *fn13 may be used to compute a partner's "distributive share" of income for New Jersey Gross Income Tax purposes. The Director argues that if Contributions are reported by the Partnership as deductible by a partner under the authority of IRC § 170, they are conclusively presumed not to constitute ordinary and necessary expenses, with the result that they may not be used to reduce a partner's New Jersey distributive share.
The Supreme Court's analysis of N.J.S.A. 54A:5-1k in Smith, supra was clear and unambiguous.
We disagree that the Legislature patterned the . . . Gross Income Tax Act on the Internal Revenue Code. . . . No evidence has been presented that the Legislature intended to equate "distributive share" . . . or. . . "income" and "gain" with analogous terms used in the Internal Revenue Code. Moreover, when the Legislature intended to incorporate federal income tax concepts, it did so explicitly. . . . The Act's legislative history clearly indicates that the Legislature intended to and did reject the federal income tax model in favor of a gross income tax act in order to avoid tax loopholes under federal law.[citation omitted] Since the Legislature rejected the federal model of taxing income, other branches may not superimpose the Code upon the Gross Income Tax Act in the guise of statutory construction.
[Smith, supra, at 32-33].
The "ordinary and necessary" standard set out in IRC § 162, not being expressly incorporated into either of subsections N.J.S.A. 54A:5-1b or k, cannot be engrafted thereon by either the court or the Director. The Legislature simply did not manifest any intent to equate "all costs and expenses incurred in the conduct [of business]" in N.J.S.A. 54A:5-1b with IRC § 162's "ordinary and necessary expenses paid or incurred . . . in carrying on any trade or business." *fn14
As the Court in Smith, supra concluded that the Legislature did not intend to "exclude income that would clearly fall into other categories if it were not earned in the regular course of a business", from inclusion in a partner's distributive share of partnership income, Id. at 27, so we must conclude that the Legislature intended that partners, like sole proprietors, would deduct all costs and expenses incurred in the regular course of their business. The Court there articulated that the crucial inquiry for purposes of N.J.S.A. 54A:5-1b was whether the expense was incurred in the conduct of the ordinary (or regular) business, profession or other activity of the partnership.
We hold, under Smith and in accordance with the plain and unambiguous language of N.J.S.A. 54A:5-1b, that the standard for deductibility of an expense of a partnership is whether the expense was paid or incurred in the conduct of the business, profession or other activity of the partnership. This Conclusion is fully consistent with N.J.A.C. 18:35-1.25(c) and (d)(2), which provide, as to a business, profession or other activity conducted as a sole proprietorship:
(c) A taxpayer's net profits from business shall be determined by taking into account all costs and expenses incurred in the conduct thereof, except no deduction shall be allowed for taxes based on income. . . . No deduction shall be allowed for any expense or loss which is not incurred in the ordinary course of the conduct of the taxpayer's trade or business.
(d) . . . (2) A taxpayer's net profits from business shall be determined by taking into account expenses or losses incurred in the conduct of the taxpayer's trade or business which are properly deductible in accordance with the taxpayer's method of accounting, *fn15 even if such deductions relate to expenses incurred in earning business income exempt from taxation under the Gross Income Tax Act, or expense which are partly or wholly nondeductible for Federal income tax purposes or expenses under rules which limit the deductiblity of particular business expenses under the Internal Revenue Code.
We specifically reject, as we must under Smith, the Federal standard for deductibility contained in IRC § 162 and the Regulations thereunder. While, it is now unnecessary for us to decide whether the Contributions would have been an allowable deduction under this standard, we note that, there being no dispute that the payment of the Contributions occurred in the conduct of the partnership's business, it would seem that Taxpayers have met the standard.
In Smith, supra, the Court explained the statute's foundation in what it termed the "sound economic practice" of matching income with the expenses to produce such income:
Here, business expenses incurred by a partnership in the ordinary course of its business are being applied against that partnership's income, also earned in the ordinary course of its business. No business expenses are being applied against income derived from an unrelated source.
We emphasize the limits of this decision. Items of income realized outside the scope of a business are to be allocated to the other categories of income listed in N.J.S.A. 54A:5-1. . . .
[Smith, supra, at 31.]
This decision merely applies that reasoning.
B. The characterization of a payment as deductible under IRC § 170 as opposed to under IRC § 162 is irrelevant for purposes of N.J.S.A. 54A:5-1b and k.
It follows from what we have determined above, that the character of a payment as deductible for Federal income tax purposes under IRC § 170, as opposed to § 162, is irrelevant to its deductibility for New Jersey Gross Income Tax purposes. There is no authority for the Director's Conclusion that items characterized as charitable contributions for Federal purposes be conclusively presumed to fall outside of the standard for deductibility under N.J.S.A. 54a:5-1b. *fn16 As indicated in our Discussion of the format of the K-1, Charitable Contributions are required to be separately stated from partnership net income (loss) for a very specific reason - that is, in order that the IRC § 170(b) limitations apply at the partner level. The standard for deductibility of a payment to an IRC § 501(c)(3) organization as a trade or business expense under IRC § 162 has no connection with the standard therefor under N.J.S.A. 54A:5-1b and k. Suffice it to say that the tension between IRC § 162 and § 170 has the objective of preventing avoidance of the percentage limitations under § 170 by classifying a payment as a § 162 expense; not disallowing a deduction in its entirety. *fn17 The attempted distinction between "business" and "non-business" Charitable Contributions made in N.J.S.C. 18:35-14, example 7, engrafts upon the Gross Income Tax Act's standard a mutated version of the Federal law character ("deductible under § 170 vs. deductible under § 162".) Example 7 must be disregarded as an impermissible extension of the statute. *fn18 GE Solid State, Inc. v. Director, Division of Taxation, 132 N.J. 298(1993).
Can unreimbursed expenses be deducted by an individual partner as business expenses incurred in the course of partnership business under the New Jersey Gross Income Tax Act?
In light of the Director's determination to amend N.J.A.C. 18:35-14(c)7, resolution of whether a partner's unreimbursed expenses may be deducted is accomplished simply by reference to the standard which we held above to be provided under N.J.S.A. 54A:5-1b - "paid or incurred in the conduct of the business, profession or other activity of the partnership." As with respect to the Contributions, it is unnecessary for us to decide whether the Direct Expenses would have been an allowable deduction under the standard articulated today. It would appear, however, that as the Director has abandoned N.J.A.C. 18:35-14.1(c)7, the only issue is whether the Expenses were incurred in the conduct of the partnership's business. Defendant did not oppose this characterization and, therefore, the Direct Expenses would have been deductible.
For all of the foregoing reasons, judgment will be entered reversing that portion of the Director's Final Determination as regarded the Contributions and the Direct Expenses and declaring that: (i) the standard for deductibility of a partnership expense is the standard set out in N.J.S.A. 54A:5-1b, that is whether the expense was paid or incurred in the conduct of the business, profession or other activity of the partnership; (ii) N.J.A.C. 18:35-1.14(c)7 (which the Director has abandoned) is void and of no further force or effect; and (iii) Example 7 of the Regulation is void as an impermissible extension of N.J.S.A. 54A:5-1b and k.