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Posted on Thu, 11/3/2011 - 09:01 AM by
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Franchisors now have two stark choices, follow the International Franchise Association's consistently losing argument that "physical presence" is required or work out a deal. In 2005 the IFA submitted an amicus brief to the U.S. Supreme Court in the A&F Trademark case saying "physical nexus" was required for income taxation of royalties because to rule otherwise would be a big surprise to franchisors. SCOTUS refused certiorari. A few months ago the IFA filed another amicus brief, in KFC v. Iowa, saying "physical nexus" was required for income taxation of royalties because to rule otherwise would be a big surprise to franchisors. Again SCOTUS refused certiorari. In fact, the IFA, as an organization, has been aware of this issue since 1979 when they sent their then counsel, Andrew A. Caffey, to New Mexico to argue against "economic nexus" as it was being asserted there with respect to the state's Gross Receipts Tax. That was 32 years ago. It should not be a surprise any longer. Shortly after the seminal case of Geoffrey v. South Carolina ruled that "economic nexus" was sufficient for the income taxation of royalties, the late Phil Rudnick (RIP), then a lead IFA attorney, wrote (in "South Carolina Extends the Reach of State Income Taxes to Franchisors," Franchise Legal Digest, Fall 1993) that such a decision was jeopardizing the license revenues of Walt Disney, Mickey Mouse and Michael Jordan. Another very smart and preeminent tax attorney has been representing the taxpayers on appeal - and consistently losing on this issue - for at least 17 years. It is time for franchisors to give up the ghost and realize that if they have not filed at all in a state, no statute of limitations starts to run and they are liable for any and all taxes going back to their first receipt of royalties, whenever that was. Generally, the result with interest and penalties can be a tripling (or more) of the tax liability - and the penalties may not be deductible for federal income tax purposes. One of Napoleon's maxims of war was "God fights on the side of the larger battalions." In this conflict, franchisors that are not in compliance and rely on the "physical presence" argument have basically no guns and no ammunition. That's not a good outlook for the outcome of a battle with the taxing authorities. The smart business decision is to make a deal before you get caught and it's too late. Call us if you want someone to negotiate a deal for you - someone with credibility who has been consistently right on this issue for more than 20 years - or go ahead and fight. It's your funeral! MORE NEWS FROM BLUEMAUMAUGoing Green Costs Franchisees Much GreenBeing forced to buy imaginary products is just one of the nonsensical results of government policy affecting franchisors and franchisees. Good News, U.S. Hotel Profit RecoveryAccording to the new PKF Trends survey, the U.S. lodging industry produced a 12.7% profit growth in 2011. 80.5% of participating hotels enjoyed an increase in total revenue while 72.3% achieved growth in profits. The recently released 2012 edition of Trends presents data from a sample of nearly 7000 financial statements of United States hotels. For the Trends report, hotel profits are defined as net operating income (NOI) before deductions for capital reserves, rent, interest, income taxes, depreciation and amortization. Federal Court Invalidates "Quickie" Union Election Rule, For NowOn May 14, 2012, the U.S. District Court for the District of Columbia set aside a controversial final rule of the National Labor Relations Board ("NLRB") that was designed to make it easier and faster for unions to hold organizing elections. Chamber of Commerce of the United States of America, et al. v. NLRB, Case No. 11-02262 (D.D.C. May 14, 2012). Business groups are hailing the decision, but the celebration may be short lived. Because the ruling was essentially decided on a procedural point, the NLRB may seek to resurrect the rule, which creates a very short window for union elections, and leaves employers with little time to react to an organized union campaign. Field Representatives Coach Franchisees to Victory
A good coach will make his players see what they can be rather than what they are. "Live For Now" Stars Dead IconPepsiCo announced aggressive marketing plans, boosting ad spending by 20% and bringing back deceased pop icon Michael Jackson as part of a worldwide campaign. RELATED SMALL BUSINESS NEWSHot Franchise Topic: Getting a LoanIt seems like the entire franchise industry is focused on funding, and with good reason; franchise loans are still a bit challenging to secure. Production Agreements of a Supply Chain; The Other End of the RainbowMany years ago I was pulled away from my usual assignments to do a major product production tolling agreement between two of America’s larger food companies. It was a stroke of luck for me because it provided something new for my interest in multivariate risks management. Since then I have prepared many multivariate high risk agreements, and it is always an enjoyable as well as remunerative adventure. When you think of every brand as a franchise in itself, it fits perfectly into my customary practice of managing franchise relationship disconnect issues. Know the Benefits of Application Protection in Any OrganizationIt is very important to ensure proper method of data availability on time. In that case, replication needs to be adopted in order to manage current backup information and system settings so that it can deliver fast restoration of data after any kind of disaster. As we know that it is not possible to avoid any kind of natural disaster or human error; but it is always mandatory to take proper measures for application protection, so that users do not face any kind of problem related to data loss. And, data replication is found to be the only way to remove or minimize the time lapse experienced in these situations. Pepsi Wants a New GenerationEverything the light touches this year is rapper Nicki Minaj’s kingdom. From the Billboard Top 100 to the Super Bowl half-time show, and her reign is about to expand to a major role in a new ad campaign for Pepsi. A Business Plan Should be a Requirement for Buying a FranchiseVisit any website that offers advice on starting a new business or expanding an existing one and you’ll find articles and advice on the importance of writing a business plan. There are tips ranging from how to write an effective business plan to the reasons why it’s so important. |
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