A New Mexico resident cashed out 'phantom stock' he had earned over years of work in Illinois. Could he allocate most of that payment away from New Mexico?

Subject

Sharon & John Askwith (D&O 00-10)

Plain-English summary

John Askwith worked for years in Illinois as an employee of Outside Magazine (a division of Mariah Publications). In 1985 he signed a "phantom stock" agreement — a form of incentive compensation that promised him a cash payout, based on the growth in book value of hypothetical shares, whenever his employment ended. Phantom stock is not a retirement plan; the payout is taxed as ordinary income in the year it is received. In 1996 the Askwiths moved from Illinois to New Mexico, and in 1998 — when they were full-year New Mexico residents — John received the phantom-stock payment. His employer reported it as wages on a W-2.

On their 1998 New Mexico return, the Askwiths used the allocation schedule (form PIT-B) to assign only 32% of the payment to New Mexico — the appreciation that occurred after they moved — arguing the rest belonged to Illinois, where the work was done. That produced a large refund. The Department reallocated 100% of the payment to New Mexico, gave them a credit for the Illinois tax they had paid, and reduced the refund. After math corrections, the disputed amount was $6,344.

The Hearing Officer denied the protest. Under Section 7-2-11(A)(3) and Regulation 3 NMAC 3.11.11.1, a full-year resident's compensation is allocated entirely to New Mexico — "whether or not such compensation is earned from employment in this state." The phantom-stock payout was deferred compensation as the Income Tax Act defines it, so as a full-year resident John had to allocate all of it to New Mexico; where he earned it was irrelevant. Taxing a resident on out-of-state income is neither illegal nor unconstitutional — domicile alone is a basis for taxation (Shaffer v. Carter; Lawrence v. State Tax Commission of Mississippi). And New Mexico's credit for taxes paid to another state (Section 7-2-13) ensured the Askwiths were not taxed twice on the same income.

What this means for you

• If you are a full-year New Mexico resident, New Mexico taxes all of your compensation — no matter where you earned it. You cannot allocate wages, salary, or similar pay away from New Mexico based on the state where the work was performed. Section 7-2-11(A)(3) requires 100% allocation to New Mexico.
• Deferred compensation is taxed by the state where you live when you receive it, not where you worked. A phantom-stock payout, bonus, or other pay for past services counts as compensation in the year received. Moving to New Mexico before collecting deferred pay earned elsewhere can pull the whole payment into New Mexico tax.
• You will not be double-taxed — claim the other-state credit. If another state taxes the same income, Section 7-2-13 gives you a credit against your New Mexico tax for what you paid that state. Here the Askwiths got credit for their Illinois tax; the credit, not a source-based allocation, is the mechanism that prevents double taxation.
• Residents can't escape state tax on out-of-state income on constitutional grounds. Courts have long held that a state may tax its own residents on income from anywhere, because domicile itself justifies taxation. That argument will not win.

Key questions answered

Why couldn't the Askwiths allocate most of the payment to Illinois?
Because they were full-year New Mexico residents in 1998. Section 7-2-11(A)(3) and the regulation require a full-year resident's compensation to be allocated entirely to New Mexico, regardless of where the underlying work was performed.

Did it matter that the phantom stock was earned over years of Illinois employment?
No. The Hearing Officer held that the fact the payment was attributable to work performed outside New Mexico is irrelevant; what matters is that it was compensation received while they were New Mexico residents.

Isn't it unfair (or unconstitutional) for New Mexico to tax income earned in another state?
No. A state may tax its residents on all their income because domicile is itself a basis for taxation (Shaffer v. Carter; Lawrence v. State Tax Commission of Mississippi).

Were they taxed twice on the same money?
No. New Mexico gave them a credit under Section 7-2-13 for the tax they paid Illinois on the same income, so the income was effectively taxed only once.

Verbatim citations

Full-year residents allocate all compensation to New Mexico:

Subsection A(3) of Section 7-2-11 NMSA 1978 requires compensation of full-year residents to be allocated to New Mexico. Regulation 3 NMAC 3.11.11.1 states that "all compensation received while a resident of New Mexico shall be allocated to this state whether or not such compensation is earned from employment in this state."

The phantom-stock payout was compensation, and its source was irrelevant:

Because Mr. Askwith was a full-year resident of New Mexico in the year he received the payment, the Taxpayers were required to allocate the entire payment to New Mexico when calculating their New Mexico income tax liability. The fact that the payment was attributable to work performed outside New Mexico is irrelevant.

The credit that prevents double taxation:

Here, the Taxpayers were given credit against their 1998 New Mexico income tax for $6,191.00 of tax they were required to pay to the state of Illinois. The credit provided by Section 7-2-13 NMSA 1978 insures that New Mexico residents will not be taxed twice on the same income.

The holding:

The Taxpayers were required to allocate the entire amount of Mr. Askwith's 1998 phantom stock payment to New Mexico when calculating their 1998 New Mexico income tax. For the foregoing reasons, the Taxpayers' protest is DENIED.

Source

• Listing: New Mexico Decisions & Orders
• Decision post: Sharon & John Askwith
• Decision PDF: D&O 00-10

Original ruling text

BEFORE THE HEARING OFFICER
OF THE TAXATION AND REVENUE DEPARTMENT
OF THE STATE OF NEW MEXICO

IN THE MATTER OF THE PROTEST OF
SHARON AND JOHN ASKWITH No. 00-10
PARTIAL DENIAL OF CLAIM FOR REFUND

DECISION AND ORDER

A formal hearing on the above-referenced protest was held February 24, 2000, before

Margaret B. Alcock, Hearing Officer. Sharon and John Askwith (“Taxpayers”) were represented by

Sharon Askwith. The Taxation and Revenue Department ("Department") was represented by Monica

M. Ontiveros, Special Assistant Attorney General. The record was left open to allow the parties time to

review the mathematical calculations in the Taxpayers’ 1998 New Mexico personal income tax return

and reach agreement on the amount of tax that is in dispute. On March 3, 2000, the parties submitted a

Stipulation of Facts setting out additional facts concerning the refund. Based on the evidence and

arguments presented, IT IS DECIDED AND ORDERED AS FOLLOWS:

FINDINGS OF FACT

1. Between 1985 and 1996, Taxpayers were residents of the state of Illinois.

2. During this period, John Askwith was a full-time employee of Outside Magazine, a

division of Mariah Publications Corporation (“Mariah Publications”).

3. In July 1985, Mr. Askwith entered into a “phantom stock” agreement with Mariah

Publications under which Mr. Askwith was credited with a specified number of hypothetical shares

of corporate stock. The agreement provided that upon termination of employment, Mr. Askwith

would be entitled to a cash payment equal to the increase in book value of the phantom stock

between the time of issuance and the time of termination.

4. Phantom stock plans are not retirement plans, but are incentive compensation plans

that allow key employees to participate in the corporation’s growth without having to assume the

cost and risk of stock ownership. If the incentive program meets IRS requirements, the employee is

not liable for income tax at the time the plan is implemented, but reports the phantom stock

payments as ordinary income in the year received, while the employer takes a corresponding

deduction for compensation paid.

5. In 1996, the Taxpayers sold their home in Illinois and established residence in New

Mexico.

6. In 1998, Mr. Askwith received a payment under his phantom stock agreement with

Mariah Publications. Mariah Publications issued Mr. Askwith a 1998 federal form W-2 reflecting

the payment as “wages, tips, other compensation” and showing income tax withholding payments to

both the federal government and New Mexico, which was the Taxpayers’ state of residence for all of

1998.

7. On March 30, 1999, the Taxpayers filed a joint New Mexico income tax return, form

PIT-1. On accompanying form PIT-B, New Mexico Allocation and Apportionment of Income

Schedule, the Taxpayers allocated 32 percent of the phantom stock payment to New Mexico. This

amount reflected the appreciation in the value of the phantom stock that occurred while the

Taxpayers were residents of New Mexico.

8. As a result of allocating most of the phantom stock payment outside New Mexico,

the Taxpayers’ return showed a refund due of $15,532.00. The filing of a New Mexico income tax

return showing a balance due the taxpayer constitutes the filing of a claim for refund under Section

7-1-26 NMSA 1978.

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9. On April 21, 1999 and May 17, 1999, the Department sent adjustment notices to the

Taxpayers reallocating the entire phantom stock payment to New Mexico and crediting the

Taxpayers with $6,191.00 of tax they paid on the same income to the state of Illinois. Based on the

adjustments, which served as a partial denial of the Taxpayer’s claim for refund, the Taxpayers

received a reduced refund of $8,484.00.

10. On June 25, 1999, pursuant to an extension of time granted by the Department, the

Taxpayers filed a protest to the Department’s partial denial of their claim for refund. After making

additional adjustments for mathematical errors discovered after the protest was filed, the parties

stipulated that the refund amount at issue is $6,344.00.

DISCUSSION

The issue in this case is whether New Mexico has the right to tax a full-year New Mexico

resident on compensation attributable to work the resident performed in another state. The

Taxpayers argue that only Illinois has the right to tax the deferred compensation Mr. Askwith

received for his work as an employee of Mariah Publications in the state of Illinois. The Department

maintains that New Mexico has the right to tax the entire income of its residents, without regard to

the source of that income.

Payment of New Mexico personal income taxes is governed by the Income Tax Act, Sections

7-2-1, et seq., NMSA 1978. New Mexico is among the majority of states that "piggy-back" or use the

federal income tax system as the basis for calculating state income taxes. As reflected on the

Department’s 1998 form PIT-1, New Mexico taxable income is calculated by starting with the

taxpayer's federal adjusted gross income, deducting the taxpayer's federal personal exemption and

itemized deductions, and making certain adjustments reflected on Schedule A. The amount of tax is

then drawn from the tax rate table or tax schedule.

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When a taxpayer has income that is taxable both within and without New Mexico, Section 7-2-

11 NMSA 1978 allows the taxpayer to file a form PIT-B to allocate and apportion certain categories

of income between New Mexico and non-New Mexico sources. The percentage of total income

allocated or apportioned to New Mexico is then applied to the tax previously calculated to determine

the tax due. There are some categories of income that must be allocated 100 percent to New Mexico

on form PIT-B, regardless of the source of the income. Subsection A(3) of Section 7-2-11 NMSA

1978 requires compensation of full-year residents to be allocated to New Mexico. Regulation 3

NMAC 3.11.11.1 states that “all compensation received while a resident of New Mexico shall be

allocated to this state whether or not such compensation is earned from employment in this state.”

The term "compensation" is defined in Section 7-2-2(C) NMSA 1978 to include "wages, salaries,

commissions and any other form of remuneration paid to employees for personal services."

In this case, the 1998 payment Mr. Askwith received under the phantom stock agreement

was deferred compensation for services rendered while he was an employee of Mariah Publications.

The payment falls within the Income Tax Act’s definition of “compensation” and was reported as

such on the 1998 form W-2 issued to Mr. Askwith by his employer. Because Mr. Askwith was a

full-year resident of New Mexico in the year he received the payment, the Taxpayers were required

to allocate the entire payment to New Mexico when calculating their New Mexico income tax

liability. The fact that the payment was attributable to work performed outside New Mexico is

irrelevant.

There is nothing illegal or unconstitutional in requiring New Mexico residents to pay state

income tax on all income received during the taxable year, including income attributable to activities

in other states. More than 70 years ago, the United States Supreme Court recognized the rights of

the several states “to exercise the widest liberty with respect to the imposition of internal taxes”

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noting that “states have full power to tax their own people....” Shaffer v. Carter, 252 U.S. 37, 51

(1919). In Lawrence v. State Tax Commission of Mississippi, 286 U.S. 276 (1932), the Court

addressed the same issue raised in this protest, holding that Mississippi had the right to tax a

Mississippi resident on income earned from services performed on a construction project in the state

of Tennessee. As stated by the Court:

The obligation of one domiciled within a state to pay taxes there, arises from
the unilateral action of the state government in the exercise of the most
plenary of sovereign powers, that to raise revenue to defray the expenses of
government and to distribute its burdens equably among those who enjoy its
benefits. Hence, domicile in itself establishes a basis for taxation.

286 U.S. at 279.

In assessing the legality of New Mexico’s income tax scheme, it should be noted that New

Mexico provides a tax credit to residents required to pay tax to both New Mexico and another state

on the same income. Section 7-2-13 NMSA 1978 provides, in pertinent part:

When a resident individual is liable to another state for tax upon income
derived from sources outside this state but also included in net income under
the Income Tax Act as income allocated or apportioned to New Mexico
pursuant to Section 7-2-11 NMSA 1978, the individual...shall receive a credit
against the tax due this state in the amount of the tax paid the other state with
respect to income that is required to be either allocated or apportioned to
New Mexico.

Here, the Taxpayers were given credit against their 1998 New Mexico income tax for $6,191.00 of

tax they were required to pay to the state of Illinois. The credit provided by Section 7-2-13 NMSA

1978 insures that New Mexico residents will not be taxed twice on the same income. Given this

statutory tax scheme, there is neither a legal nor an equitable basis for the Taxpayers to challenge the

Department’s partial denial of their claim for refund of 1998 income taxes.

CONCLUSIONS OF LAW

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1. The Taxpayers filed a timely written protest to the Department’s partial denial of their

claim for refund of 1998 personal income taxes, and jurisdiction lies over the parties and the subject

matter of this protest.

2. There is nothing illegal or unconstitutional in requiring full-year New Mexico residents

to allocate all compensation received during the taxable year to New Mexico when calculating their

personal income tax liability to New Mexico.

3. The Taxpayers were required to allocate the entire amount of Mr. Askwith’s 1998

phantom stock payment to New Mexico when calculating their 1998 New Mexico income tax.

For the foregoing reasons, the Taxpayers’ protest is DENIED.

DATED March 20, 2000.

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