Oregon Income Tax Increases – Sales Tax in Disguise?

Recent articles in The Oregonian laid accolades on the Oregon legislature for all they have done for us during this last session–really important things like banning puppy mills, making it illegal to “top off gas tanks when filling,” requiring calorie counts on chain restaurant menus, and raising the cost of higher education, which, by the way, has increased tenfold in the last 15 years.  Don’t get me wrong, I have always been against the way pet stores have bred the poor puppies in rotten conditions, but I take exception to giving accolades to our government officials during a time of economic stress for spending so much time on trivial pursuits and for not delving into the real reasons behind our budget problems.

I won’t elaborate on the fact that raising taxes historically has produced less income to the government than when tax rates were lowered.  The fact is when more income is generated, more tax is paid.  When the incentive and ability to make money are lowered by raising taxes, less revenue is generated.  Instead I will explain with an actual example how the changes this legislature made during this economy will, in fact, make many businesses think harder about closing their doors and relocating across the river. I will also point out that many businesses this year with between two and twenty  million dollars in sales will possibly have losses, not income.  I will of course acknowledge that my view is somewhat skewed to an observation of only the 120 corporate clients I have firsthand experience with, but this is most likely a reasonable sample of small business in Oregon.

Currently in Oregon, all business entities established as C-corporations filing federal Form 1120, or set up as pass-thru entities such as multi-member LLCs filing federal Form 1065, and S-Corporations filing federal Form 1120S pay a minimum tax of $10 per year.  If the entity was a C-corporation, it would pay tax on its net taxable income at 6.6% but not less than $10, whereas the pass-thru entities only pay the $10, as their net taxable income is “passed through to the individual owners,” and the owners ADD it to their personal income tax returns and pay personal taxes on the combined amount.

Effective for tax years beginning on or after January 1, 2009, the minimum tax on  pass-thru entities goes to $150; however, for taxable C-corporation entities, the minimum tax will be based on the gross Oregon sales, regardless if the corporation has a net taxable income or not. I have long felt the $10 minimum was way too low. It takes much more than $10 to administrate the filing of these returns. I even feel that $150 is low. California, which has one of the nation’s highest minimums, is $800. However, to base the minimum on gross sales for a taxable C-corporation entity is nothing more than a disguised attempt to charge the entities a sales tax.

What the legislature and our governor do not understand is that small businesses provide much more in terms of long-term revenue to our State, regardless of whether they end up with a net taxable income. Let me give you the following example from an actual business that has operated in this state since 1971, employing between 50 and 100 people per year.

This company has an average of $19 million in sales per year and averages 60 employees, so the payroll is an average of $3.2 million per year. The company is a wholesale operation and purchases $12 million worth of products per year. The company provides health insurance and retirement benefits to its employees. It also pays rent to another Oregonian for $350,000. Sometimes we believe that the owner is taking a majority of the $3.2 million in wages.  However, in this example, the owner averages $200,000 or less. Now here is the kicker:  Because this company is generous to its work force, hiring, paying health insurance, retirement, and other expenses, its average annual net income is less than $200,000. And due to economic conditions, last year and this coming year, it will actually have zero net income.

Here is the problem with the current change to the C-corporation minimum tax:  This corporation, and many others like it, will provide jobs to Oregonians, will provide health insurance to Oregonians, will provide revenue to other entities from purchasing products, both in Oregon and across the country, will provide revenue to another entity for rent, will provide retirement to people who might not otherwise save, and for its efforts will pay Oregon $7,500 in minimum tax. In addition, Oregon will pick up revenue from the $3.2 million in wages, both in employment-related taxes and income taxes from those individuals, and from the $350,000 in rent. If you do the math, here is how it looks:  When the corporation makes a net of $113,636, it would pay 6.6%, or $7,500. But if it has a loss of, say, $100,000 and makes nothing, it would still pay $7,500.

Now, let’s examine this same company if it were a pass-thru entity meaning, again, that the net income or loss would be added to the individual’s return and taxed with the personal income. Let us further assume the owner received a salary of $200,000, owned a home with a mortgage and property taxes and, being generous, gave to various charities so that the owner had itemized deductions of $35,000, including a state income tax of $10,000. His state tax under these conditions would be approximately $15,000. Now, if the company had a loss of $100,000, which will be likely during these economic times, his Oregon tax, which would include the company, would go down to $6,000, plus the company’s minimum Oregon tax on a pass-thru entity of $150.

Here is the comparison:  Nothing else in the company is different other than whether it is a pass-thru entity or a C-corp. The owner’s salary is the same, the company expenses and operations are the same. But in one case, the loss saves the taxpayer $9,000 in Oregon taxes, and in the other case, because it is a C-Corporation, not only does the individual still pay $15,000 but the corporation is out another $7,350, for a total difference of $16,350. Even if there isn’t a loss and the company just breaks even, the difference is the minimum tax of $7,350. All this is only because of the type of entity the business chose years ago.

I do not believe the Oregon legislature understands the tax system, or they are more concerned with just showing they did something rather than developing a well thought out change that does not penalize the only source of revenue that they need to correct their budget problems. That source is the working America.


2 thoughts on “Oregon Income Tax Increases – Sales Tax in Disguise?

  1. And, don’t forget the 1% tax on the health insurance premiums that start this fall. Makes it harder to operate a business in Oregon!

  2. I have a Law Firm that wants some limited liability protection and was wondering what is the more common or required legal entity selection (Personal Service Corp, LLP or LLC). Also, they want to know whether Law Firms can elect to be taxed as S-Corp to avoid PSC flat tax of 35% if necessary.

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