On December 10, 2019, the Nebraska Department of Revenue issued a General Information Letter (GIL 24-19-3) addressing the state tax treatment of GILTI and FDII. The guidance confirms that GILTI is included in Nebraska income and that the IRC section 250 deductions for GILTI and FDII are allowed. Further, the Department does not consider GILTI to be eligible for the state’s foreign dividend subtraction. The GIL also addresses how GILTI should be apportioned, providing that the denominator of the sales factor includes an entity’s share of the IRC section 951A income (GILTI) reported on the federal return. The GIL also notes that for apportionment purposes GILTI is characterized as investment income under the relevant Nebraska statutes and will be sourced to the location where the entity’s investment, management, and record keeping activities occur. The presumption is that these activities occur at the entity’s commercial domicile. If Nebraska is the entity’s commercial domicile, then GILTI must be included in the numerator of its sales factor unless the entity provides sufficient evidence to rebut the presumption that the relevant activities occur at its commercial domicile. If the entity’s commercial domicile is not Nebraska, GILTI should not be included in the numerator of the sales factor unless the company conducts the relevant activities (i.e., investment, management, and record keeping) in Nebraska. Please contact Brandon Boetel at 612-305-5474 with questions on GIL 24-19-3.
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