Reed Smith Client Alerts

A Florida Circuit Court issued a recent decision allowing a taxpayer to use a costs-of-performance methodology to source its receipts from services. This decision calls into question the Department of Revenue’s policy favoring market-based sourcing for receipts from services. Because this issue remains open in Florida, taxpayers with receipts from sales other than tangible personal property should evaluate whether there are opportunities to reduce their Florida apportionment.

On November 28, 2022, the Circuit Court of Florida’s Second Judicial Circuit issued its final judgment in Target Enterprise, Inc. v. Fla. Dept. of Rev.,1 concluding that Target Enterprise, Inc. (“TEI”) correctly applied Florida’s costs-of-performance regulation to its receipts from services and correctly sourced those receipts outside Florida.

The Florida Department of Revenue (the “Department”) issued an income tax assessment to TEI, a Minnesota-based subsidiary of Target Corporation (“Target”), for the 2016 through 2018 tax years. This assessment resulted from the Department sourcing certain receipts that TEI received from Target for the provision of merchandising, marketing, and management services to Florida. TEI did not own any property in Florida, and had less than 1% of its payroll in Florida.

Under Florida's sales-factor regulation, the rule for sourcing “other sales” is often used for sourcing receipts from services.2 Under that rule, a receipt is sourced to Florida if (1) the income-producing activity is performed wholly within Florida, or (2) the income-producing activity is performed inside and outside Florida but a greater proportion is performed in Florida, based on costs of performance.3 In many instances, the Department has taken the position that this rule results in some variation of a market-based sourcing.4

The Department tried to follow a similar approach in Target Enterprise. At trial, the Department argued that TEI failed to provide sufficient documentation to support the use of the costs-of-performance apportionment under the regulations. Therefore, according to the Department, it should be entitled to use its equitable authority to construct a new methodology for TEI's sales factor. The Department argued that TEI should be required to attribute its service receipts to Florida based on the footprint of Target’s retail stores (i.e., using a fraction of retail square footage of stores in Florida over retail square footage of stores across the country).