As if the Internal Revenue Code, Treasury Regulations and various federal courts didn’t make taxes complicated and confusing enough, hedge fund and private equity managers must also contend with the varied, and often contradictory, state laws regarding sourcing of income. No unifying principle seems to translate from one jurisdiction to the next with one exception: all states seem to be saying we want more.
There are two key concepts that govern state income taxes. The first is nexus which is the legal or economic connection that permits a state to require a business like an investment advisor to file an income tax return. Once nexus is established, the second concept – sourcing comes into play. Sourcing rules determine the methods used by a business to assign income to the states in which it has taxable activities. Whether a business has nexus in a state depends on the amount and type of business activity present there. Physical presence in a state can be established through having employees, partners or other agents there (be sure to keep in mind telecommuters either in management or traders), owning or leasing property there, or investing in and actively managing a partnership or other pass-through type entity that has its own sourced income in that state.
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