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Revised Michigan Business Tax, New Michigan Excise Tax on Services and Targeted "Loophole" Closings

February 16, 2007

With the introduction of Governor Granholm's Tax Restructuring proposal, Michigan's historic restructuring of the state's tax levies is underway. The two principal elements of the proposal are the Michigan Business Tax, as well as a new sales tax on services, although dubbed an "excise" tax in an attempt to avoid a state Constitutional amendment. While final bills have not yet been introduced, clients should be immediately made aware of the substance of the proposals.

Revised Michigan Business Tax

The revised Michigan Business Tax ("MBT") is the three-part levy introduced by the Governor in the 2006 lame duck session, with a tax on net profit, a tax on gross receipts, and an asset tax based on a business's tangible and intangible property, regardless of location, and apportioned to the state based solely on sales. The main revision from the lame duck bill is a new headquarter credit for businesses located within the state that will provide approximately $450M in net tax relief to Michigan businesses from the prior overall Single Business Tax ("SBT") collection of $1.9M.

Taxes on financial organizations and insurance companies are expected to increase, as well as an anticipated $100M increase in the shifting of Michigan's business tax burden to out-of-state companies who do business in the state.


Excise Tax on Services

Reminiscent of the Florida services tax, is Michigan's broad based proposed excise tax on services, which would levy a 2% tax on almost all services, with the limited exemptions indicated as follows:

Services specifically taxed include legal services, accounting and bookkeeping and business-to-business services (the full list is available at http://www.michigan.gov/documents/budget/ TwoPennyPlan_Impacted_2007_186931_7.pdf). The Governor hopes to raise approximately $1.5 billion dollars, with just over $1 billion being paid on business-to-business services. While some relief is provided to manufacturers, that relief is limited to those services used directly in the manufacturing process, which would be a change in policy from Michigan's current sales and use tax manufacturing exemption for the purchase of tangible personal property which currently follows an integrated plant theory approach, and is not limited to "direct use."

The classification of the tax as an "excise" tax rather than a sales tax on services is to avoid the need for a state constitutional amendment, as the legislature is prohibited from levying any new sales taxes (or an increase in the current sales tax rate), without the approval of the majority of voters. It is also suspected that an excise tax label would avoid conflicting with the Streamlined Sales Tax Project ("SSTP"), of which Michigan is a full participating state member. Whether or not such labeling will avoid these problems will be the subject of a future alert.

The excise tax is a critical part of the Governor's overall restructuring, and collection processes must be in place by June 1, 2007 if the Governor is to be able to use revenue from the levy to meet current budget year deficits.


Other Tax Increases

The Governor has proposed a variety of other increases, such as:

Target "Corporate Tax Loopholes"

The Governor is again targeting certain "corporate tax loopholes" which she has been unsuccessful in changing in prior years by proposing the following:

Timing

As indicated, timing for introduction of the required bills is immediate, and the Democrat-controlled House is preparing to move quickly on the legislation. It is critical that the State gets its 2008 revenue stream in place, as well as address the budget deficit for the remainder of the 2007 year. The mood in Lansing is similar to that in 1983 when the Legislature passed an income tax increase, which resulted in the recall of two Democrat senators and the Senate going into 24 years of Republican control.

The Governor is targeting an early passage of all the tax bills, with the excise tax legislation first on the fast track, with a goal of a finalized bill as early as April 1, 2007. The Legislature is scheduled for a two-week spring break on March 31, 2007.

If you have any questions regarding this alert, please contact any of the SALT tax experts:


Samuel J. McKim, III at (313) 496-7546, mckim@millercanfield.com

Robert F. Rhoades at (313) 496-7608, rhoades@millercanfield.com

Joanne B. Faycurry at (313) 496-7678, faycurry@millercanfield.com, or

Jackie J. Cook at (313) 496-8468, cookjj@millercanfield.com.