HB-5008, As Passed House, February 13, 2014HB-5008, As Passed Senate, February 13, 2014

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 5008

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1967 PA 281, entitled

 

"Income tax act of 1967,"

 

by amending sections 623, 665, and 671 (MCL 206.623, 206.665, and

 

206.671), section 623 as amended by 2012 PA 414, section 665 as

 

added by 2011 PA 38, and section 671 as amended by 2011 PA 313.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 623. (1) Except as otherwise provided in this part, there

 

is levied and imposed a corporate income tax on every taxpayer with

 

business activity within this state or ownership interest or

 

beneficial interest in a flow-through entity that has business

 

activity in this state unless prohibited by 15 USC 381 to 384. The

 

corporate income tax is imposed on the corporate income tax base,

 

after allocation or apportionment to this state, at the rate of

 

6.0%.


 

     (2) The corporate income tax base means a taxpayer's business

 

income subject to the following adjustments, before allocation or

 

apportionment, and the adjustment in subsection (4) after

 

allocation or apportionment:

 

     (a) Add interest income and dividends derived from obligations

 

or securities of states other than this state, in the same amount

 

that was excluded from federal taxable income, less the related

 

portion of expenses not deducted in computing federal taxable

 

income because of sections 265 and 291 of the internal revenue

 

code.

 

     (b) Add all taxes on or measured by net income including the

 

tax imposed under this part to the extent that the taxes were

 

deducted in arriving at federal taxable income.

 

     (c) Add any carryback or carryover of a net operating loss to

 

the extent deducted in arriving at federal taxable income.

 

     (d) To the extent included in federal taxable income, deduct

 

dividends and royalties received from persons other than United

 

States persons and foreign operating entities, including, but not

 

limited to, amounts determined under section 78 of the internal

 

revenue code or sections 951 to 964 of the internal revenue code.

 

     (e) Except as otherwise provided under this subdivision, to

 

the extent deducted in arriving at federal taxable income, add any

 

royalty, interest, or other expense paid to a person related to the

 

taxpayer by ownership or control for the use of an intangible asset

 

if the person is not included in the taxpayer's unitary business

 

group. The addition of any royalty, interest, or other expense

 

described under this subdivision is not required to be added if the


 

taxpayer can demonstrate that the transaction has a nontax business

 

purpose, is conducted with arm's-length pricing and rates and terms

 

as applied in accordance with sections 482 and 1274(d) of the

 

internal revenue code, and 1 of the following is true:

 

     (i) The transaction is a pass through of another transaction

 

between a third party and the related person with comparable rates

 

and terms.

 

     (ii) An addition would result in double taxation. For purposes

 

of this subparagraph, double taxation exists if the transaction is

 

subject to tax in another jurisdiction.

 

     (iii) An addition would be unreasonable as determined by the

 

state treasurer.

 

     (iv) The related person recipient of the transaction is

 

organized under the laws of a foreign nation which has in force a

 

comprehensive income tax treaty with the United States.

 

     (f) To the extent included in federal taxable income, deduct

 

interest income derived from United States obligations.

 

     (g) For tax years beginning after December 31, 2011, eliminate

 

all of the following:

 

     (i) Income from producing oil and gas to the extent included in

 

federal taxable income.

 

     (ii) Expenses of producing oil and gas to the extent deducted

 

in arriving at federal taxable income.

 

     (h) For tax years beginning after December 31, 2012, for a

 

qualified taxpayer, eliminate all of the following:

 

     (i) Income derived from a mineral to the extent included in

 

federal taxable income.


 

     (ii) Expenses related to the income deductible under

 

subparagraph (i) to the extent deducted in arriving at federal

 

taxable income.

 

     (3) For purposes of subsection (2), the business income of a

 

unitary business group is the sum of the business income of each

 

person included in the unitary business group less any items of

 

income and related deductions arising from transactions including

 

dividends between persons included in the unitary business group.

 

     (4) Deduct any available business loss incurred after December

 

31, 2011. As used in this subsection, "business loss" means a

 

negative business income taxable amount after allocation or

 

apportionment. For purposes of this subsection, a taxpayer that

 

acquires the assets of another corporation in a transaction

 

described under section 381(a)(1) or (2) of the internal revenue

 

code may deduct any business loss attributable to that distributor

 

or transferor corporation. The business loss shall be carried

 

forward to the year immediately succeeding the loss year as an

 

offset to the allocated or apportioned corporate income tax base,

 

then successively to the next 9 taxable years following the loss

 

year or until the loss is used up, whichever occurs first.

 

     (5) As used in this section, "oil and gas" means oil and gas

 

that is subject to severance tax under 1929 PA 48, MCL 205.301 to

 

205.317.

 

     Sec. 665. (1) Sales of the taxpayer in this state are

 

determined as follows:

 

     (a) Sales of tangible personal property are in this state if

 

the property is shipped or delivered, or, in the case of


 

electricity and gas, the contract requires the property to be

 

shipped or delivered, to any purchaser within this state based on

 

the ultimate destination at the point that the property comes to

 

rest regardless of the free on board point or other conditions of

 

the sales. Property stored in transit for 60 days or more prior to

 

receipt by the purchaser or the purchaser's designee, or in the

 

case of a dock sale not picked up for 60 days or more, shall be

 

deemed to have come to rest at this ultimate destination. Property

 

stored in transit for fewer than 60 days prior to receipt by the

 

purchaser or the purchaser's designee, or in the case of a dock

 

sale picked up before 60 days, is not deemed to have come to rest

 

at this ultimate destination. For purposes of this subdivision:

 

     (i) "Dock sale" means a sale in which the purchaser uses its

 

own or rented vehicles, or makes arrangements with a carrier, to

 

pick up the property at the seller's location.

 

     (ii) "Stored in transit" means storing, staging, forwarding, or

 

consolidating activities undertaken for further shipment or

 

transfer of the property to the purchaser or purchaser's designee.

 

     (b) Receipts from the sale, lease, rental, or licensing of

 

real property are in this state if that property is located in this

 

state.

 

     (c) Receipts from the lease or rental of tangible personal

 

property are sales in this state to the extent that the property is

 

utilized in this state. The extent of utilization of tangible

 

personal property in this state is determined by multiplying the

 

receipts by a fraction, the numerator of which is the number of

 

days of physical location of the property in this state during the


 

lease or rental period in the tax year and the denominator of which

 

is the number of days of physical location of the property

 

everywhere during all lease or rental periods in the tax year. If

 

the physical location of the property during the lease or rental

 

period is unknown or cannot be determined, the tangible personal

 

property is utilized in the state in which the property was located

 

at the time the lease or rental payer obtained possession.

 

     (d) Receipts from the lease or rental of mobile transportation

 

property owned by the taxpayer are in this state to the extent that

 

the property is used in this state. The extent to which an aircraft

 

will be deemed to be used in this state and the amount of receipts

 

that is to be included in the numerator of this state's sales

 

factor are determined by multiplying all the receipts from the

 

lease or rental of the aircraft by a fraction, the numerator of

 

which is the number of landings of the aircraft in this state and

 

the denominator of which is the total number of landings of the

 

aircraft. If the extent of the use of any transportation property

 

within this state cannot be determined, then the receipts are in

 

this state if the property has its principal base of operations in

 

this state.

 

     (e) Royalties and other income received for the use of or for

 

the privilege of using intangible property, including patents,

 

know-how, formulas, designs, processes, patterns, copyrights, trade

 

names, service names, franchises, licenses, contracts, customer

 

lists, custom computer software, or similar items, are attributed

 

to the state in which the property is used by the purchaser. If the

 

property is used in more than 1 state, the royalties or other


 

income shall be apportioned to this state pro rata according to the

 

portion of use in this state. If the portion of use in this state

 

cannot be determined, the royalties or other income shall be

 

excluded from both the numerator and the denominator. Intangible

 

property is used in this state if the purchaser uses the intangible

 

property or the rights to the intangible property in the regular

 

course of its business operations in this state, regardless of the

 

location of the purchaser's customers.

 

     (2) Sales from the performance of services are in this state

 

and attributable to this state as follows:

 

     (a) Except as otherwise provided in this section, all receipts

 

from the performance of services are included in the numerator of

 

the apportionment factor if the recipient of the services receives

 

all of the benefit of the services in this state. If the recipient

 

of the services receives some of the benefit of the services in

 

this state, the receipts are included in the numerator of the

 

apportionment factor in proportion to the extent that the recipient

 

receives benefit of the services in this state.

 

     (b) Sales derived from securities brokerage services

 

attributable to this state are determined by multiplying the total

 

dollar amount of receipts from securities brokerage services by a

 

fraction, the numerator of which is the sales of securities

 

brokerage services to customers within this state, and the

 

denominator of which is the sales of securities brokerage services

 

to all customers. Receipts from securities brokerage services

 

include commissions on transactions, the spread earned on principal

 

transactions in which the broker buys or sells from its account,


 

total margin interest paid on behalf of brokerage accounts owned by

 

the broker's customers, and fees and receipts of all kinds from the

 

underwriting of securities. If receipts from brokerage services can

 

be associated with a particular customer, but it is impractical to

 

associate the receipts with the address of the customer, then the

 

address of the customer shall be presumed to be the address of the

 

branch office that generates the transactions for the customer.

 

     (c) Sales of services that are derived directly or indirectly

 

from the sale of management, distribution, administration, or

 

securities brokerage services to, or on behalf of, a regulated

 

investment company or its beneficial owners, including receipts

 

derived directly or indirectly from trustees, sponsors, or

 

participants of employee benefit plans that have accounts in a

 

regulated investment company, shall be attributable to this state

 

to the extent that the shareholders of the regulated investment

 

company are domiciled within this state. For purposes of this

 

subdivision, "domicile" means the shareholder's mailing address on

 

the records of the regulated investment company. If the regulated

 

investment company or the person providing management services to

 

the regulated investment company has actual knowledge that the

 

shareholder's primary residence or principal place of business is

 

different than the shareholder's mailing address, then the

 

shareholder's primary residence or principal place of business is

 

the shareholder's domicile. A separate computation shall be made

 

with respect to the receipts derived from each regulated investment

 

company. The total amount of sales attributable to this state shall

 

be equal to the total receipts received by each regulated


 

investment company multiplied by a fraction determined as follows:

 

     (i) The numerator of the fraction is the average of the sum of

 

the beginning-of-year and end-of-year number of shares owned by the

 

regulated investment company shareholders who have their domicile

 

in this state.

 

     (ii) The denominator of the fraction is the average of the sum

 

of the beginning-of-year and end-of-year number of shares owned by

 

all shareholders.

 

     (iii) For purposes of the fraction, the year shall be the tax

 

year of the regulated investment company that ends with or within

 

the tax year of the taxpayer.

 

     (3) Receipts from the origination of a loan or gains from the

 

sale of a loan secured by residential real property are deemed a

 

sale in this state only if 1 or more of the following apply:

 

     (a) The real property is located in this state.

 

     (b) The real property is located both within this state and 1

 

or more other states and more than 50% of the fair market value of

 

the real property is located within this state.

 

     (c) More than 50% of the real property is not located in any 1

 

state and the borrower is located in this state.

 

     (4) Interest from loans secured by real property is in this

 

state if the property is located within this state, if the property

 

is located both within this state and 1 or more other states and if

 

more than 50% of the fair market value of the real property is

 

located within this state, or if more than 50% of the fair market

 

value of the real property is not located within any 1 state but

 

the borrower is located in this state. The determination of whether


 

the real property securing a loan is located within this state

 

shall be made as of the time the original agreement was made and

 

any and all subsequent substitutions of collateral shall be

 

disregarded.

 

     (5) Interest from a loan not secured by real property is in

 

this state if the borrower is located in this state.

 

     (6) Gains from the sale of a loan not secured by real

 

property, including income recorded under the coupon stripping

 

rules of section 1286 of the internal revenue code, are in this

 

state if the borrower is in this state.

 

     (7) Receipts from credit card receivables, including interest,

 

fees, and penalties from credit card receivables and receipts from

 

fees charged to cardholders, such as annual fees, are in this state

 

if the billing address of the cardholder is in this state.

 

     (8) Receipts from the sale of credit card or other receivables

 

are in this state if the billing address of the customer is in this

 

state. Credit card issuer's reimbursements fees are in this state

 

if the billing address of the cardholder is in this state. Receipts

 

from merchant discounts, computed net of any cardholder

 

chargebacks, but not reduced by any interchange transaction fees or

 

by any issuer's reimbursement fees paid to another for charges made

 

by its cardholders, are in this state if the commercial domicile of

 

the merchant is in this state.

 

     (9) Loan servicing fees derived from loans of another secured

 

by real property are in this state if the real property is located

 

in this state, if the real property is located both within and

 

outside of this state and 1 or more states if more than 50% of the


 

fair market value of the real property is located in this state, or

 

if more than 50% of the fair market value of the real property is

 

not located in any 1 state but the borrower is located in this

 

state. Loan servicing fees derived from loans of another not

 

secured by real property are in this state if the borrower is

 

located in this state. If the location of the security cannot be

 

determined, then loan servicing fees for servicing either the

 

secured or the unsecured loans of another are in this state if the

 

lender to whom the loan servicing service is provided is located in

 

this state.

 

     (10) Receipts from the sale of securities and other assets

 

from investment and trading activities, including, but not limited

 

to, interest, dividends, and gains are in this state in either of

 

the following circumstances:

 

     (a) The person's customer is in this state.

 

     (b) If the location of the person's customer cannot be

 

determined, both of the following apply:

 

     (i) Interest, dividends, and other income from investment

 

assets and activities and from trading assets and activities,

 

including, but not limited to, investment securities; trading

 

account assets; federal funds; securities purchased and sold under

 

agreements to resell or repurchase; options; futures contracts;

 

forward contracts; notional principal contracts such as swaps;

 

equities; and foreign currency transactions are in this state if

 

the average value of the assets is assigned to a regular place of

 

business of the taxpayer within this state. Interest from federal

 

funds sold and purchased and from securities purchased under resale


 

agreements and securities sold under repurchase agreements is in

 

this state if the average value of the assets is assigned to a

 

regular place of business of the taxpayer within this state. The

 

amount of receipts and other income from investment assets and

 

activities is in this state if assets are assigned to a regular

 

place of business of the taxpayer within this state.

 

     (ii) The amount of receipts from trading assets and activities,

 

including, but not limited to, assets and activities in the matched

 

book, in the arbitrage book, and foreign currency transactions, but

 

excluding amounts otherwise sourced in this section, is in this

 

state if the assets are assigned to a regular place of business of

 

the taxpayer within this state.

 

     (11) Receipts from transportation services rendered by a

 

person subject to tax in another state are in this state and shall

 

be attributable to this state as follows:

 

     (a) Except as otherwise provided in subdivisions (b) through

 

(e), receipts shall be proportioned based on the ratio of revenue

 

miles of the person in this state to the revenue miles of the

 

person everywhere.

 

     (b) Receipts from maritime transportation services shall be

 

attributable to this state as follows:

 

     (i) 50% of those receipts that either originate or terminate in

 

this state.

 

     (ii) 100% of those receipts that both originate and terminate

 

in this state.

 

     (c) Receipts attributable to this state of a person whose

 

business activity consists of the transportation both of property


 

and of individuals shall be proportioned based on the total

 

receipts for passenger miles and ton mile fractions, separately

 

computed and individually weighted by the ratio of receipts from

 

passenger transportation to total receipts from all transportation,

 

and by the ratio of receipts from freight transportation to total

 

receipts from all transportation, respectively.

 

     (d) Receipts attributable to this state of a person whose

 

business activity consists of the transportation of oil by pipeline

 

shall be proportioned based on the ratio of the receipts for the

 

barrel miles transported in this state to the receipts for the

 

barrel miles transported by the person everywhere.

 

     (e) Receipts attributable to this state of a person whose

 

business activities consist of the transportation of gas by

 

pipeline shall be proportioned based on the ratio of the receipts

 

for the 1,000 cubic feet miles transported in this state to the

 

receipts for the 1,000 cubic feet miles transported by the person

 

everywhere.

 

     (12) For purposes of subsection (11), if a taxpayer can show

 

that revenue mile information is not available or cannot be

 

obtained without unreasonable expense to the taxpayer, receipts

 

attributable to this state shall be that portion of the revenue

 

derived from transportation services performed everywhere that the

 

miles of transportation services performed in this state bear to

 

the miles of transportation services performed everywhere. If the

 

department determines that the information required for the

 

calculations under subsection (11) are not available or cannot be

 

obtained without unreasonable expense to the taxpayer, the


 

department may use other available information that in the opinion

 

of the department will result in an equitable allocation of the

 

taxpayer's receipts to this state.

 

     (13) Except as provided in subsections (14) through (19),

 

receipts from the sale of telecommunications service or mobile

 

telecommunications service are in this state if the customer's

 

place of primary use of the service is in this state. As used in

 

this subsection, "place of primary use" means the customer's

 

residential street address or primary business street address where

 

the customer's use of the telecommunications service primarily

 

occurs. For mobile telecommunications service, the customer's

 

residential street address or primary business street address is

 

the place of primary use only if it is within the licensed service

 

area of the customer's home service provider.

 

     (14) Receipts from the sale of telecommunications service sold

 

on an individual call-by-call basis are in this state if either of

 

the following applies:

 

     (a) The call both originates and terminates in this state.

 

     (b) The call either originates or terminates in this state and

 

the service address is located in this state.

 

     (15) Receipts from the sale of postpaid telecommunications

 

service are in this state if the origination point of the

 

telecommunication signal, as first identified by the service

 

provider's telecommunication system or as identified by information

 

received by the seller from its service provider if the system used

 

to transport telecommunication signals is not the seller's, is

 

located in this state.


 

     (16) Receipts from the sale of prepaid telecommunications

 

service or prepaid mobile telecommunications service are in this

 

state if the purchaser obtains the prepaid card or similar means of

 

conveyance at a location in this state. Receipts from recharging a

 

prepaid telecommunications service or mobile telecommunications

 

service are in this state if the purchaser's billing information

 

indicates a location in this state.

 

     (17) Receipts from the sale of private communication services

 

are in this state as follows:

 

     (a) 100% of the receipts from the sale of each channel

 

termination point within this state.

 

     (b) 100% of the receipts from the sale of the total channel

 

mileage between each termination point within this state.

 

     (c) 50% of the receipts from the sale of service segments for

 

a channel between 2 customer channel termination points, 1 of which

 

is located in this state and the other is located outside of this

 

state, which segments are separately charged.

 

     (d) The receipts from the sale of service for segments with a

 

channel termination point located in this state and in 2 or more

 

other states or equivalent jurisdictions, and which segments are

 

not separately billed, are in this state based on a percentage

 

determined by dividing the number of customer channel termination

 

points in this state by the total number of customer channel

 

termination points.

 

     (18) Receipts from the sale of billing services and ancillary

 

services for telecommunications service are in this state based on

 

the location of the purchaser's customers. If the location of the


 

purchaser's customers is not known or cannot be determined, the

 

sale of billing services and ancillary services for

 

telecommunications service is in this state based on the location

 

of the purchaser.

 

     (19) Receipts to access a carrier's network or from the sale

 

of telecommunications services for resale are in this state as

 

follows:

 

     (a) 100% of the receipts from access fees attributable to

 

intrastate telecommunications service that both originates and

 

terminates in this state.

 

     (b) 50% of the receipts from access fees attributable to

 

interstate telecommunications service if the interstate call either

 

originates or terminates in this state.

 

     (c) 100% of the receipts from interstate end user access line

 

charges, if the customer's service address is in this state. As

 

used in this subdivision, "interstate end user access line charges"

 

includes, but is not limited to, the surcharge approved by the

 

federal communications commission and levied pursuant to 47 CFR 69.

 

     (d) Gross receipts from sales of telecommunications services

 

to other telecommunication service providers for resale shall be

 

sourced to this state using the apportionment concepts used for

 

non-resale receipts of telecommunications services if the

 

information is readily available to make that determination. If the

 

information is not readily available, then the taxpayer may use any

 

other reasonable and consistent method.

 

     (20) Except as otherwise provided under this subsection, for a

 

taxpayer whose business activities include live radio or television


 

programming as described in subsector code 7922 of industry group

 

792 under the standard industrial classification code as compiled

 

by the United States department of labor or are included in

 

industry groups 483, 484, 781, or 782 under the standard industrial

 

classification code as compiled by the United States department of

 

labor, or any combination of the business activities included in

 

those groups, media receipts are in this state and attributable to

 

this state only if the commercial domicile of the customer is in

 

this state and the customer has a direct connection or relationship

 

with the taxpayer pursuant to a contract under which the media

 

receipts are derived. For media receipts from the sale of

 

advertising, if the customer of that advertising is commercially

 

domiciled in this state and receives some of the benefit of the

 

sale of that advertising in this state, the media receipts from the

 

advertising to that customer are included in the numerator of the

 

apportionment factor in proportion to the extent that the customer

 

receives the benefit of the advertising in this state. For purposes

 

of this subsection, if the taxpayer is a broadcaster and if the

 

customer receives some of the benefit of the advertising in this

 

state, the media receipts for that sale of advertising from that

 

customer shall be proportioned based on the ratio that the

 

broadcaster's viewing or listening audience in this state bears to

 

its total viewing or listening audience everywhere. As used in this

 

subsection:

 

     (a) "Media property" means motion pictures, television

 

programs, internet programs and websites, other audiovisual works,

 

and any other similar property embodying words, ideas, concepts,


 

images, or sound without regard to the means or methods of

 

distribution or the medium in which the property is embodied.

 

     (b) "Media receipts" means receipts from the sale, license,

 

broadcast, transmission, distribution, exhibition, or other use of

 

media property and receipts from the sale of media services. Media

 

receipts do not include receipts from the sale of media property

 

that is a consumer product that is ultimately sold at retail.

 

     (c) "Media services" means services in which the use of the

 

media property is integral to the performance of those services.

 

     (21) Terms used in subsections (13) through (20) have the same

 

meaning as those terms defined in the streamlined sales and use tax

 

agreement administered under the streamlined sales and use tax

 

administration act, 2004 PA 174, MCL 205.801 to 205.833.

 

     (22) For purposes of this section, a borrower is considered

 

located in this state if the borrower's billing address is in this

 

state.

 

     Sec. 671. (1) The credit provided in this section shall be

 

taken before any other credit under this part and is available to

 

any taxpayer, other than those taxpayers subject to the tax imposed

 

under chapter 12 or 13, with gross receipts that do not exceed

 

$20,000,000.00 and with adjusted business income minus the loss

 

adjustment that does not exceed $1,300,000.00 as adjusted annually

 

for inflation using the Detroit consumer price index, and subject

 

to the following:

 

     (a) A corporation or unitary business group is disqualified if

 

either of the following occurs for the respective tax year:

 

     (i) Compensation and directors' fees of a shareholder or


 

officer exceed $180,000.00.

 

     (ii) The sum of the following amounts exceeds $180,000.00:

 

     (A) Compensation and directors' fees of a shareholder.

 

     (B) The product of the percentage of outstanding ownership or

 

of outstanding stock owned by that shareholder multiplied by the

 

difference between the following:

 

     (I) The sum of business income and, to the extent deducted in

 

determining federal taxable income, a carryback or a carryover of a

 

net operating loss or capital loss.

 

     (II) The loss adjustment.

 

     (b) Subject to the reduction percentage determined under

 

subsection (3), the credit determined under this subsection shall

 

be reduced by the following percentages in the following

 

circumstances:

 

     (i) If compensation and directors' fees of a shareholder or

 

officer are, or if the sum of the amounts in subdivision (a)(ii)(A)

 

and (B) is, more than $160,000.00 but less than $165,000.00, the

 

credit is reduced by 20%.

 

     (ii) If compensation and directors' fees of a shareholder or

 

officer are, or if the sum of the amounts in subdivision (a)(ii)(A)

 

and (B) is, $165,000.00 or more but less than $170,000.00, the

 

credit is reduced by 40%.

 

     (iii) If compensation and directors' fees of a shareholder or

 

officer are, or if the sum of the amounts in subdivision (a)(ii)(A)

 

and (B) is, $170,000.00 or more but less than $175,000.00, the

 

credit is reduced by 60%.

 

     (iv) If compensation and directors' fees of a shareholder or


 

officer are, or if the sum of the amounts in subdivision (a)(ii)(A)

 

and (B) is, $175,000.00 or more but not in excess of $180,000.00,

 

the credit is reduced by 80%.

 

     (2) For the purposes of determining disqualification under

 

subsection (1), both of the following apply:

 

     (a) An active shareholder's share of business income shall not

 

be attributed to another active shareholder.

 

     (b) If the taxpayer is a unitary business group, the amount of

 

all items paid or allocable by all persons included in the unitary

 

business group to any 1 individual who is a shareholder or officer

 

of a single person included in the unitary business group shall be

 

combined.

 

     (3) The reduction percentage is the greater of the following:

 

     (a) The reduction percentage based on the compensation and

 

directors' fees of the shareholder or officer with the greatest

 

amount of compensation and directors' fees.

 

     (b) The reduction percentage based on the sum of the amounts

 

in subsection (1)(a)(ii)(A) and (B) for the shareholder or officer

 

with the greatest sum of the amounts in subsection (1)(a)(ii)(A) and

 

(B).

 

     (4) A taxpayer that qualifies under subsection (1) is allowed

 

a credit against the tax imposed under this part. The credit under

 

this subsection is the amount by which the tax imposed under this

 

part exceeds 1.8% of adjusted business income.

 

     (5) If gross receipts exceed $19,000,000.00, the credit shall

 

be reduced by a fraction, the numerator of which is the amount of

 

gross receipts over $19,000,000.00 and the denominator of which is


 

$1,000,000.00. The credit shall not exceed 100% of the tax

 

liability imposed under this part.

 

     (6) For a taxpayer that reports for a tax year less than 12

 

months, the amounts specified in this section for gross receipts,

 

adjusted business income, and share of business income shall be

 

multiplied by a fraction, the numerator of which is the number of

 

months in the tax year and the denominator of which is 12.

 

     (7) Compensation paid by a professional employer organization

 

to the officers of the client and to employees of the professional

 

employer organization who are assigned or leased to and perform

 

services for the client shall be included in determining

 

eligibility of the client under this section.

 

     (8) A disqualifier or reduction under subsection (1) applies

 

to a taxpayer that is a unitary business group if a disqualifier or

 

reduction applies to any member of a unitary business group.

 

     (9) As used in this section:

 

     (a) "Active shareholder" means a shareholder who receives at

 

least $10,000.00 in compensation, directors' fees, or dividends

 

from the business, and who owns at least 5% of the outstanding

 

stock or other ownership interest.

 

     (b) "Adjusted business income" means business income as

 

defined in section 603 with all of the following adjustments:

 

     (i) Add compensation and directors' fees of active shareholders

 

of a corporation.

 

     (ii) Add, to the extent deducted in determining federal taxable

 

income, a carryback or carryover of a net operating loss.

 

     (iii) Add, to the extent deducted in determining federal taxable


 

income, a carryback or carryover capital loss.

 

     (iv) Add compensation and directors' fees of officers of a

 

corporation.

 

     (c) "Client" means an entity whose employment operations are

 

managed by a professional employer organization.

 

     (d) "Compensation" means all wages, salaries, fees, bonuses,

 

commissions, and other payments made in the tax year on behalf of

 

or for the benefit of employees, officers, or directors of the

 

taxpayers. Compensation includes, but is not limited to, payments

 

that are subject to or specifically exempt or excepted from

 

withholding under sections 3401 to 3406 of the internal revenue

 

code. Compensation also includes, on a cash or accrual basis

 

consistent with the taxpayer's method of accounting for federal

 

income tax purposes, payments to a pension, retirement, or profit

 

sharing plan other than those payments attributable to unfunded

 

accrued actuarial liabilities, and payments for insurance for which

 

employees are the beneficiaries, including payments under health

 

and welfare and noninsured benefit plans and payment of fees for

 

the administration of health and welfare and noninsured benefit

 

plans. Compensation does not include any of the following:

 

     (i) Discounts on the price of the taxpayer's merchandise or

 

services sold to the taxpayer's employees, officers, or directors

 

that are not available to other customers.

 

     (ii) Except as otherwise provided in this subdivision, payments

 

to an independent contractor.

 

     (iii) Payments to state and federal unemployment compensation

 

funds.


 

     (iv) The employer's portion of payments under the federal

 

insurance contributions act, chapter 21 of subtitle C of the

 

internal revenue code, 26 USC 3101 to 3128, the railroad retirement

 

tax act, chapter 22 of subtitle C of the internal revenue code, 26

 

USC 3201 to 3233, and similar social insurance programs.

 

     (v) Payments, including self-insurance payments, for worker's

 

compensation insurance or federal employers' liability act

 

insurance pursuant to 45 USC 51 to 60.

 

     (e) "Detroit consumer price index" means the most

 

comprehensive index of consumer prices available for the Detroit

 

area from the United States department of labor, bureau of labor

 

statistics.

 

     (f) "Loss adjustment" means the amount by which adjusted

 

business income was less than zero in any of the 5 tax years

 

immediately preceding the tax year for which eligibility for the

 

credit under this section is being determined. In determining the

 

loss adjustment for a tax year, a corporation is not required to

 

use more of the taxpayer's total negative adjusted business income

 

than the amount needed to qualify the corporation for the credit

 

under this section. A corporation shall not be considered to have

 

used any portion of the taxpayer's negative adjusted business

 

income amount unless the portion used is necessary to qualify for

 

the credit under this section. A corporation shall not reuse a

 

negative adjusted business income amount used as a loss adjustment

 

in a previous tax year or use a negative adjusted business income

 

amount from a year in which the corporation did not receive the

 

credit under this section.


 

     (g) "Officer" means an officer of a corporation including all

 

of the following:

 

     (i) The chairperson of the board.

 

     (ii) The president, vice president, secretary, or treasurer of

 

the corporation or board.

 

     (iii) Persons performing similar duties and responsibilities to

 

persons described in subparagraphs (i) and (ii), that include, at a

 

minimum, major decision making.

 

     Enacting section 1. This amendatory act is retroactive and

 

effective for tax years that begin after December 31, 2011.