Friday, July 10, 2009

California FTB LLC Fee Refunds and Case Updates

Claims are due this summer for certain claims for refunds of LLC fees (above the $800 per year minimum franchise tax) paid to the California Franchise Tax Board (FTB) for tax years prior to January 1, 2007, for LLCs that had operations in multiple states. This is related to several lawsuits contending the LLC fee is unconstutional, two of which have been resolved, in favor of the limited liability company-taxpayers (Ventas Finance I, LLC v. Franchise Tax Board and Northwest Energetic Services, LLC v. Franchise Tax Board). In Ventas, the court found that Revenue & Taxation Code Section 17942 was unconstitutional as applied to an LLC which derived revenues from inside and outside of California, without apportioning the fee to account for in-state versus out-of-state source revenues. In Northwest, the court of appeals found unconstitutional California's LLC fee as applied to an LLC that registered with the state but never did any business in California (preumably, it had intended to, but circumstances changes, or it hadn't yet got around to doing business here).

The third case, Bakersfield Mall, LLC v. Franchise Tax Board, challenges the right of the FTB to levy the LLC fee on LLC's that do business entirely in California. Those with potential claims should review this notice and speak with their accountant about filing an appropriate and timely claim, or filing a protective claim:

FTB Notice 2009-04 dated 5/22/2009

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