Many Franchisors Fail to Report Franchisees' Sales to New York State Tax Authority

This posting was written by John W. Arden.

Only 400 of the thousands of franchisors having franchisees within the State of New York have filed annual information returns with the New York Department of Tax and Finance as required by a 2009 statute, according to state officials speaking at a July 14 meeting of the New York State Bar Association Franchise Law Committee.

Last year, New York enacted legislation requiring all franchisors having franchisees within the state to file annual information returns, reporting the gross sales of each franchisee within the state, sales by the franchisor to the franchisee, and any franchisee income reported to the franchisor. The law also requires the franchisor to report such information to the relevant New York franchisees.

The first report was to be filed by September 20, 2009, with a 90-day automatic extension process making the filing deadline December 20, 2009.

The officials made it clear that the Department of Tax and Finance was using the information returns primarily as a means of auditing the sales tax returns of the franchisees, said Bruce S. Schaeffer of Franchise Valuations, Ltd.

“Franchisors should be aware that they are risking substantial audit fees, penalties, and the potential for offending the authorities with respect to back taxes that may be found to be due,” said Schaeffer.

Attendees suggested an amnesty program from franchisors determined to be “out of compliance” with the law. The suggestion was taken under advisement, according to Schaeffer.

Text of the New York statute (New York Tax Law, Article 28, Sections 1136(i) and 1145(i)) appears at CCH Business Franchise Guide ¶4321.

Further information regarding the CCH Business Franchise Guide appears here on the CCH Online Store.

Focus on Franchising

This posting was written by John W. Arden.

News and notes on franchising and distribution topics:

 The Franchise and Business Opportunity Project Group of the North American Securities Administrators Association (NASAA) has proposed that states amend their franchise disclosure laws to change the delivery rules for franchise disclosure documents. The group proposes that states (1) eliminate the requirement that franchisors provide a disclosure document at the “first personal meeting” with prospective franchisees and (2) revise statutory provisions requiring disclosure within “10 business dates” to require delivery “14 calendar days” prior to the signing of an agreement or payment of money. The proposal follows the franchise delivery requirements of the new FTC franchise disclosure rule, which was adopted in 2007. The NASAA project group has solicited internal and public comment on this proposal. The comment period, which began on July 29, extends through August 18, 2009. Further information on the proposal and the procedure for filing written comments appears here at the NASAA website.

 U.S. franchisors faced with a sluggish domestic economy are discovering “willing investors and growth opportunities overseas,” according to an article published August 11 in the Wall Street Journal. The article—by reporter Richard Gibson—says that the overseas push is fueled in large part by saturation of the U.S. market. However, in this challenging economy, the ability of overseas master franchisees to bankroll franchise operations has become even more important, as domestic franchisees find it more difficult to obtain bank loans to finance their businesses. The numbers are compelling. McDonald’s Corp. has opened 286 foreign units this year, compared with only 53 U.S. units. Subway has opened 1,432 units abroad and only about 1,230 here at home. Meanwhile, Curves International Inc. has experienced double-digit growth abroad, particularly in Brazil, Central Europe, and Eastern Europe. Japan is now its biggest overseas market, with 744 locations. It opened its first unit in China in May. Text of the story (“U.S. Franchises Find Opportunity to Grow Abroad”) appears here on the Wall Street Journal online.

 The New York State Department of Taxation and Finance is creating an automatic 90-day extension process for franchisors required by a new law to report gross sales of each franchisee within the state, sales by the franchisor to the franchisee, and any franchisee income reported to the franchisor, according to Troy Flanagan of the International Franchise Association. New legislation, effective on April 7, 2009, requires franchisors to file annual information returns with the State Department of Taxation and Finance on or before March 20. That return must cover the four quarterly sales tax periods immediately preceding. The law provides that the first returns must be filed on or before September 20, 2009, and cover the period of March 1, 2009 through August 1, 2009. Returns filed on or before March 20, 2010, must cover the period from September 1, 2009 through February 28, 2010. Prior to the initial September 20, 2009, deadline, the Department will post on its website instructions to request an automatic 90-day extension to December 20, 2009. All future annual deadlines will be given a similar treatment, according to Flanagan. Further information on the reporting requirement appears here at the Department website.

New York State Requires Franchisors to Report Franchisees’ Sales

This posting was written by Pete Reap, Editor of CCH Business Franchise Guide, and John W. Arden.

New York State has enacted legislation requiring all franchisors having franchisees within the state to file annual information returns with the State Department of Taxation and Finance, reporting the gross sales of each franchisee within the state, as well as the sales by the franchisor to the franchisee and any franchisee income reported to the franchisor. The franchisor must also report such information to the relevant New York franchisees.

The new requirements were contained in amendments to Section 1136 of the New York Tax Law. The legislation, one of the state’s voluminous budget bills (A. 157, Chapter No. 57), became effective on April 7, 2009.

Filing Requirement

The returns must be filed annually on or before March 20 and must cover the four sales tax quarterly periods immediately preceding that date. The returns must be filed electronically, in a manner prescribed by the Commissioner of the Department of Taxation and Finance.

However, the law provides that the first returns must be filed on or before September 20, 2009 and cover the period of March 1, 2009 through August 1, 2009. The returns filed on or before March 20, 2010 shall cover the period from September 1, 2009 to February 28, 2010.

A further amendment—Section 1145(i)—sets out penalties for failure to provide the required information.

In a May 27, 2009 letter to franchisors, the New York State Department of Taxation and Finance said that it was contacting franchisors to make them aware of the new requirement. The department stated that directions for filing the returns are being written and asked franchisors to provide lists of New York-based franchisees.

New York is the first jurisdiction to require such reporting by franchisors. Text of the provisions—New York Tax Law, Article 28, Sections 1136(i) and 1145(i)—appear at CCH Business Franchise Guide ¶4321.

Reaction of Franchise Bar

The enactment of these new requirements “is unprecedented, aberrant, anomalous and could prove deeply threatening to franchisees and franchising,” wrote New York franchise lawyer David J. Kaufmann in a column (“Many Unhappy Returns”) to be published in the New York Law Journal.

The new reporting requirement will allow the New York State Department of Taxation and Finance to compare the revenue figures from the franchisor with that reported by franchisees on their New York tax returns. If the franchisees are found to underreport revenues, the state will pursue them “through audits and resulting civil—or even criminal—actions."

Although New York is the first jurisdiction to impose such a reporting requirement, “we imagine many other states, and perhaps even the Internal Revenue Service, will follow New York’s lead by enacting similar franchisor reporting requirements,” wrote Kaufmann.

He further warned that franchisees may perceive franchisor reporting as interference in their businesses and that the reporting requirement may establish a new type of “tax nexus” between out-of-state franchisors and New York State.

In a June 9 Franchise & Distribution Bulletin, the law firm of Sonnenschein Nath & Rosenthal noted that reporting requirements “are similarly being considered in other states and are consistent with recent trends showing that states have been very aggressively pursuing all opportunities for additional tax revenue in order to relieve huge budget deficits.”