Corporate Tax Base 7. For purposes of applying section 623(2)(e) of the CIT, does the phrase "subject to tax in another jurisdiction" refer only to taxation by another state, or does it also include taxation by a foreign country?
The phrase includes taxation by a foreign country. Pursuant to section 623(2)(e) of the CIT, a taxpayer must add back to its corporate income tax base “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.” MCL 206.623(2)(e). Such amounts need not be added back, however, if certain conditions are met:
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 other than avoidance of this tax, is conducted with arm’s-length pricing and rates and terms as applied in accordance with section 482 and 1274(d) of the internal revenue code, and
(ii) Results in double taxation. For purposes of this paragraph, double taxation exists if the transaction is subject to tax in another jurisdiction. MCL 206.623(2)(e)(ii).
The meaning of the phrase “subject to tax in another jurisdiction” is not specifically set forth in the statute. For purposes of applying this subsection, the Department interprets “another jurisdiction” to mean states other than Michigan and foreign taxing jurisdictions.