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Michigan Business Tax
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N5. For purposes of apportionment, in determining whether a Michigan-based taxpayer has nexus with a state other than Michigan pursuant to section 301(3), must gross receipts in any "one" state or in all states equal or exceed $350,000 in order to satisfy the "actively solicits sales" nexus standard?
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Answer:
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A taxpayer whose business activities are subject to tax both within and
outside of Michigan is permitted to apportion its tax base to Michigan. MCL
208.1301(2). Section 301(3) describes the circumstances under which a taxpayer
will be considered to be subject to tax in another state. MCL 208.1301(3). For
purposes of apportionment, in determining whether a taxpayer is "subject to tax
in another state" within the meaning of section 301(3), the Department will
apply the same standard used to determine nexus for out-of-state taxpayers,
which is set forth in section 200(1). That standard requires that the taxpayer
have physical presence in this state, or that the taxpayer "actively solicits
sales" in this state and have gross receipts of at least $350,000 sourced to
Michigan. MCL 208.1200(1). Because the nexus standard references $350,000 in
gross receipts sourced to a single state (Michigan), in applying that standard
to determine whether a taxpayer is subject to tax in another state for purposes
of apportionment, the Department will require that the taxpayer meet the
$350,000 gross receipts threshold in a single non-Michigan state. Also, section
301(3) by its terms refers to "another state" (singular) having jurisdiction to
subject the taxpayer to tax. MCL 208.1301(3). Accordingly, a Michigan-based
taxpayer having gross receipts of $150,000 in one non-Michigan state and gross
receipts of $200,000 in another non-Michigan state would not meet the section
301(3) standard and would not be able to apportion its tax base.
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