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2007 Minnesota Statutes

This is a historical version of this statute section. Also view the most recent published version.

290.17 GROSS INCOME, ALLOCATION TO STATE.
    Subdivision 1. Scope of allocation rules. (a) The income of resident individuals is not subject
to allocation outside this state. The allocation rules apply to nonresident individuals, estates,
trusts, nonresident partners of partnerships, nonresident shareholders of corporations treated as
"S" corporations under section 290.9725, and all corporations not having such an election in
effect. If a partnership or corporation would not otherwise be subject to the allocation rules, but
conducts a trade or business that is part of a unitary business involving another legal entity that is
subject to the allocation rules, the partnership or corporation is subject to the allocation rules.
(b) Expenses, losses, and other deductions (referred to collectively in this paragraph as
"deductions") must be allocated along with the item or class of gross income to which they are
definitely related for purposes of assignment under this section or apportionment under section
290.191, 290.20, or 290.36. Deductions definitely related to any item of gross income assigned
under subdivision 2, paragraph (e), are assigned to the taxpayer's domicile.
(c) In the case of an individual who is a resident for only part of a taxable year, the individual's
income, gains, losses, and deductions from the distributive share of a partnership, S corporation,
trust, or estate are not subject to allocation outside this state to the extent of the distributive share
multiplied by a ratio, the numerator of which is the number of days the individual was a resident of
this state during the tax year of the partnership, S corporation, trust, or estate, and the denominator
of which is the number of days in the taxable year of the partnership, S corporation, trust, or estate.
    Subd. 1a.[Repealed, 1987 c 268 art 1 s 127]
    Subd. 2. Income not derived from conduct of a trade or business. The income of a
taxpayer subject to the allocation rules that is not derived from the conduct of a trade or business
must be assigned in accordance with paragraphs (a) to (f):
(a)(1) Subject to paragraphs (a)(2), (a)(3), and (a)(4), income from wages as defined in
section 3401(a) and (f) of the Internal Revenue Code is assigned to this state if, and to the extent
that, the work of the employee is performed within it; all other income from such sources is
treated as income from sources without this state.
Severance pay shall be considered income from labor or personal or professional services.
(2) In the case of an individual who is a nonresident of Minnesota and who is an athlete or
entertainer, income from compensation for labor or personal services performed within this state
shall be determined in the following manner:
(i) The amount of income to be assigned to Minnesota for an individual who is a nonresident
salaried athletic team employee shall be determined by using a fraction in which the denominator
contains the total number of days in which the individual is under a duty to perform for the
employer, and the numerator is the total number of those days spent in Minnesota. For purposes
of this paragraph, off-season training activities, unless conducted at the team's facilities as part of
a team imposed program, are not included in the total number of duty days. Bonuses earned as a
result of play during the regular season or for participation in championship, play-off, or all-star
games must be allocated under the formula. Signing bonuses are not subject to allocation under
the formula if they are not conditional on playing any games for the team, are payable separately
from any other compensation, and are nonrefundable; and
(ii) The amount of income to be assigned to Minnesota for an individual who is a
nonresident, and who is an athlete or entertainer not listed in clause (i), for that person's athletic or
entertainment performance in Minnesota shall be determined by assigning to this state all income
from performances or athletic contests in this state.
(3) For purposes of this section, amounts received by a nonresident as "retirement income"
as defined in section (b)(1) of the State Income Taxation of Pension Income Act, Public Law
104-95, are not considered income derived from carrying on a trade or business or from wages or
other compensation for work an employee performed in Minnesota, and are not taxable under
this chapter.
(4) Wages, otherwise assigned to this state under clause (1) and not qualifying under clause
(3), are not taxable under this chapter if the following conditions are met:
(i) the recipient was not a resident of this state for any part of the taxable year in which the
wages were received; and
(ii) the wages are for work performed while the recipient was a resident of this state.
(b) Income or gains from tangible property located in this state that is not employed in the
business of the recipient of the income or gains must be assigned to this state.
(c) Income or gains from intangible personal property not employed in the business of the
recipient of the income or gains must be assigned to this state if the recipient of the income or
gains is a resident of this state or is a resident trust or estate.
Gain on the sale of a partnership interest is allocable to this state in the ratio of the original
cost of partnership tangible property in this state to the original cost of partnership tangible
property everywhere, determined at the time of the sale. If more than 50 percent of the value
of the partnership's assets consists of intangibles, gain or loss from the sale of the partnership
interest is allocated to this state in accordance with the sales factor of the partnership for its
first full tax period immediately preceding the tax period of the partnership during which the
partnership interest was sold.
Gain on the sale of goodwill or income from a covenant not to compete that is connected
with a business operating all or partially in Minnesota is allocated to this state to the extent that
the income from the business in the year preceding the year of sale was assignable to Minnesota
under subdivision 3.
When an employer pays an employee for a covenant not to compete, the income allocated to
this state is in the ratio of the employee's service in Minnesota in the calendar year preceding
leaving the employment of the employer over the total services performed by the employee for
the employer in that year.
(d) Income from winnings on a bet made by an individual while in Minnesota is assigned
to this state. In this paragraph, "bet" has the meaning given in section 609.75, subdivision 2, as
limited by section 609.75, subdivision 3, clauses (1), (2), and (3).
(e) All items of gross income not covered in paragraphs (a) to (d) and not part of the
taxpayer's income from a trade or business shall be assigned to the taxpayer's domicile.
(f) For the purposes of this section, working as an employee shall not be considered to
be conducting a trade or business.
    Subd. 3. Trade or business income; general rule. All income of a trade or business is
subject to apportionment except nonbusiness income. Income derived from carrying on a trade or
business must be assigned to this state if the trade or business is conducted wholly within this
state, assigned outside this state if conducted wholly without this state and apportioned between
this state and other states and countries under this subdivision if conducted partly within and
partly without this state. For purposes of determining whether a trade or business is carried
on exclusively within or without this state:
(a) A trade or business physically located exclusively within this state is nevertheless carried
on partly within and partly without this state if any of the principles set forth in section 290.191
for the allocation of sales or receipts within or without this state when applied to the taxpayer's
situation result in the allocation of any sales or receipts without this state.
(b) A trade or business physically located exclusively without this state is nevertheless
carried on partly within and partly without this state if any of the principles set forth in section
290.191 for the allocation of sales or receipts within or without this state when applied to
the taxpayer's situation result in the allocation of any sales or receipts within this state. The
jurisdiction to tax such a business under this chapter must be determined in accordance with
sections 290.014 and 290.015.
    Subd. 4. Unitary business principle. (a) If a trade or business conducted wholly within this
state or partly within and partly without this state is part of a unitary business, the entire income
of the unitary business is subject to apportionment pursuant to section 290.191. Notwithstanding
subdivision 2, paragraph (c), none of the income of a unitary business is considered to be derived
from any particular source and none may be allocated to a particular place except as provided by
the applicable apportionment formula. The provisions of this subdivision do not apply to business
income subject to subdivision 5, income of an insurance company, or income of an investment
company determined under section 290.36.
(b) The term "unitary business" means business activities or operations which result in a
flow of value between them. The term may be applied within a single legal entity or between
multiple entities and without regard to whether each entity is a sole proprietorship, a corporation,
a partnership or a trust.
(c) Unity is presumed whenever there is unity of ownership, operation, and use, evidenced
by centralized management or executive force, centralized purchasing, advertising, accounting, or
other controlled interaction, but the absence of these centralized activities will not necessarily
evidence a nonunitary business. Unity is also presumed when business activities or operations are
of mutual benefit, dependent upon or contributory to one another, either individually or as a group.
(d) Where a business operation conducted in Minnesota is owned by a business entity that
carries on business activity outside the state different in kind from that conducted within this
state, and the other business is conducted entirely outside the state, it is presumed that the two
business operations are unitary in nature, interrelated, connected, and interdependent unless it can
be shown to the contrary.
(e) Unity of ownership is not deemed to exist when a corporation is involved unless that
corporation is a member of a group of two or more business entities and more than 50 percent
of the voting stock of each member of the group is directly or indirectly owned by a common
owner or by common owners, either corporate or noncorporate, or by one or more of the member
corporations of the group. For this purpose, the term "voting stock" shall include membership
interests of mutual insurance holding companies formed under section 66A.40.
(f) The net income and apportionment factors under section 290.191 or 290.20 of foreign
corporations and other foreign entities which are part of a unitary business shall not be included
in the net income or the apportionment factors of the unitary business. A foreign corporation or
other foreign entity which is required to file a return under this chapter shall file on a separate
return basis. The net income and apportionment factors under section 290.191 or 290.20 of
foreign operating corporations shall not be included in the net income or the apportionment
factors of the unitary business except as provided in paragraph (g).
(g) The adjusted net income of a foreign operating corporation shall be deemed to be paid as
a dividend on the last day of its taxable year to each shareholder thereof, in proportion to each
shareholder's ownership, with which such corporation is engaged in a unitary business. Such
deemed dividend shall be treated as a dividend under section 290.21, subdivision 4.
Dividends actually paid by a foreign operating corporation to a corporate shareholder
which is a member of the same unitary business as the foreign operating corporation shall be
eliminated from the net income of the unitary business in preparing a combined report for the
unitary business. The adjusted net income of a foreign operating corporation shall be its net
income adjusted as follows:
(1) any taxes paid or accrued to a foreign country, the commonwealth of Puerto Rico, or a
United States possession or political subdivision of any of the foregoing shall be a deduction; and
(2) the subtraction from federal taxable income for payments received from foreign
corporations or foreign operating corporations under section 290.01, subdivision 19d, clause
(10), shall not be allowed.
If a foreign operating corporation incurs a net loss, neither income nor deduction from that
corporation shall be included in determining the net income of the unitary business.
(h) For purposes of determining the net income of a unitary business and the factors to be
used in the apportionment of net income pursuant to section 290.191 or 290.20, there must be
included only the income and apportionment factors of domestic corporations or other domestic
entities other than foreign operating corporations that are determined to be part of the unitary
business pursuant to this subdivision, notwithstanding that foreign corporations or other foreign
entities might be included in the unitary business.
(i) Deductions for expenses, interest, or taxes otherwise allowable under this chapter that
are connected with or allocable against dividends, deemed dividends described in paragraph
(g), or royalties, fees, or other like income described in section 290.01, subdivision 19d, clause
(10), shall not be disallowed.
(j) Each corporation or other entity, except a sole proprietorship, that is part of a unitary
business must file combined reports as the commissioner determines. On the reports, all
intercompany transactions between entities included pursuant to paragraph (h) must be
eliminated and the entire net income of the unitary business determined in accordance with
this subdivision is apportioned among the entities by using each entity's Minnesota factors for
apportionment purposes in the numerators of the apportionment formula and the total factors for
apportionment purposes of all entities included pursuant to paragraph (h) in the denominators of
the apportionment formula.
(k) If a corporation has been divested from a unitary business and is included in a combined
report for a fractional part of the common accounting period of the combined report:
(1) its income includable in the combined report is its income incurred for that part of the
year determined by proration or separate accounting; and
(2) its sales, property, and payroll included in the apportionment formula must be prorated
or accounted for separately.
    Subd. 5. Special rule. Notwithstanding subdivisions 3 and 4, all income from the operation
of an athletic team when the visiting team does not share in the gate receipts is assigned to the
state in which the team's operation is based.
    Subd. 6. Nonbusiness income. Nonbusiness income is income of the trade or business that
cannot be apportioned by this state because of the United States Constitution or the Constitution
of the state of Minnesota and includes income that cannot constitutionally be apportioned to this
state because it is derived from a capital transaction that solely serves an investment function.
Nonbusiness income must be allocated under subdivision 2.
    Subd. 7.[Repealed, 1991 c 291 art 7 s 26]
History: (2394-23) 1933 c 405 s 23; Ex1937 c 49 s 17; 1949 c 734 s 8; 1971 c 152 s 1; 1971
c 730 s 1; 1973 c 650 art 7 s 1; 1977 c 423 art 1 s 11; 1977 c 429 s 63; 1978 c 767 s 18; 1979 c
303 art 1 s 18,19; 1980 c 512 s 6; 1980 c 607 art 1 s 20,21,32; 1981 c 60 s 27; 1981 c 178 s 59;
1Sp1981 c 1 art 9 s 7; 1982 c 523 art 28 s 2; art 40 s 14; 3Sp1981 c 2 art 3 s 13; 1983 c 15 s 17;
1983 c 207 s 18,43; 1983 c 342 art 1 s 24,43; 1984 c 514 art 1 s 8; art 2 s 22-24; 1984 c 655 art 1
s 50; 1Sp1985 c 14 art 21 s 31; 1986 c 444; 1Sp1986 c 1 art 1 s 9; art 2 s 2; 1987 c 268 art 1 s
73; 1988 c 719 art 1 s 12; art 2 s 30; art 3 s 12; 1989 c 28 s 16,17,25; 1989 c 334 art 2 s 51;
1Sp1989 c 1 art 10 s 25,26; 1990 c 480 art 5 s 2,3; 1990 c 604 art 2 s 16; 1991 c 291 art 6 s
32,33,46; art 7 s 16; 1992 c 511 art 6 s 19; 1993 c 375 art 8 s 14; 1994 c 416 art 2 s 4; 1994 c
587 art 1 s 24; 1996 c 471 art 1 s 8; 1997 c 31 art 1 s 16; 1997 c 84 art 2 s 3; 1997 c 231 art 6 s
15; art 15 s 16; 1999 c 243 art 2 s 21-23; 2000 c 490 art 4 s 28; 1Sp2001 c 5 art 9 s 20,21; 2002 c
377 art 10 s 15,16; 2005 c 69 art 2 s 18; 2006 c 259 art 1 s 4

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