COST’s Role in the Tax Conversation, a Discussion With Nikki Dobay

COST’s Role in the Tax Conversation, a Discussion With Nikki Dobay

Intro Welcome to SALTovation. The SALTovation show is a podcast series featuring the leading voices in state and local tax, where we talk about the issues and strategies to help you make sense of state and local tax.

Meredith Hello, everyone, and welcome to another episode of the SALTovation podcast where we are joined by Niki Dobay today, who is a senior tax counsel for the Council on State Taxation (COST). Today, we are going to look into the nonprofit trade association and try to understand some of the inner workings of the state tax brain trust. Welcome, Nikki, and thank you for being here today.

Nikki Thank you, Meredith. Thank you, Judy. Happy to be here.

Meredith And of course, the great Judy Vorndran of SALTovation. Hello again, Judy.

Judy Hello, Meredith. Hello, Nikki.

Meredith It is our understanding that you have accepted a new position and going back to a law firm. So let us be one of the first to congratulate you on your new position.

Nikki Yes. Looking forward to continuing working together in this new role.

Meredith We'll just start there. You've had kind of a varied career beginning in law, moving to public accounting and then ending up at COST. So for those, that's the common nomenclature for the Council on State Taxation. So what? Well, and then going back to the law firm. So what path kind of took your career that way and how did you shift between industry buckets?

Nikki And one that I have been thinking about quite a bit over the past few months is I've been thinking about making a transition. And one of my early mentors started to ask me, what do I want to do when I grow up? And I had a very difficult time answering that. And so I think for me, when where I've been, I've just tried to master the things that I've been doing. And then at some point I want to master something new. And so I've made a jump. And looking back, I really can't think that I have that I would have been ready to be a partner in a law firm seven or eight years ago when I left. So I went to see at that time and I'm just so grateful for the experience I had working on tax compliance. And while definitely not my favorite thing and I think a lot of people have that experience, I don't think I'm alone there. It just taught me so much and has helped me so much in understanding how to interpret the words on the page and then how to explain that to legislators. And then obviously my time, because not only have I learned an amazing amount about the legislative process, just the world opens and the state and local tax world opens and you get to know the members and the practitioners and the who's who. And that's just been an incredible experience. And I so I'm so glad I didn't start this job during COVID, not being able to travel would have been challenging, but really looking forward to the next step and also really looking forward to continuing to work with folks like yourself.

Judy It's a great point because oftentimes, like when you read the law, you're like, OK, great, but I'm pretty sure the person who wrote this has never tried to put pen to paper. And you're just like that doesn't make sense, like, seriously and like as this is kind of off SALT. But like the CARES Act and tax reform, you're like, did you guys really think about, like, what that means? Clearly not. And so, you know, I think that's amazing that, you know, organizations such as COST can help bridge these matters and climb the learning curve.

Nikki When I started, I would march into the legislators, into the legislative hearings or committees, and I had all my notes on tax and I would sit down and I would just tell them about tax. I learned very quickly that when I looked up, they were all checking their phones, looking out the window, because they don't live in this world we live in. So no idea. So I, I very quickly changed my approach to make it so easy for them to understand how difficult what they were going to do would be for taxpayers to comply with and whether or not they thought it was the greatest policy in the world. It was just going to be an incredible challenge. And I think that did make me an effective advocate for our membership, because that's really where I saw the conversations needed to go. And somebody did tell me early on when I was very nervous because I had to testify about unclaimed property, which I know nothing about. And the person just that I guarantee you, even if you know almost nothing, you know more than they know. They're like, so just walk in there. You're the smartest person in the room on this and just say whatever you think will help. Yeah, well, it's true. Departments of Revenue don't really know how to deal with taxes either. And you find a lot of them have never even done a tax return except their own as an employee. That's a pretty easy return. It's a 1040. Right. So I have found that kind of astounding. Like they're administering the tax laws. I have had auditors not even know how to read a financial statement. They don’t know what accounts are. And you're thinking you're asking me about a partnership deduction for a guaranteed payment as if it's an expense of the partnership. OK, you don't get financial accounting effects. Many years ago, I thought about hiring auditors because we're getting audit right, left and middle of my clients. And then I go to meet some of these people who worked in accounting and they're not even CPAs half the time. Right? So they're not even in the same field that I'm in as an undergrad. I have a CPA myself. And so they don't understand financial accounting. So that’s why I can't hire them. They can never advance themselves at public accounting because you've got to be a CPA just to get beyond that and definitely change at the state and local tax world, must hire CPAs and attorneys qualified using other credentials to give credibility for advancement.

Judy Here in Colorado with our home rules, legislators don't even get that all these home rules create a total complex mess for taxpayers. How the heck are they supposed to do? Seventy local jurisdictions. Great, right? Yeah, yeah, yeah, yeah. It's interesting. And then, of course, political things are so about the headline.

Meredith So then what role really does COST play in the greater multistate tax conversation?

Nikki So a little history. Going back to the 1950s when the states were going to try to figure out apportionment. We don't really know we're going to do it all sorts of different ways. There was the Willis Commission that came out and studied, I think it was Portland Cement case that said the states can apportion however the heck they want. I thought that was all great. But then the Willis commission came out. Congress put together this committee to study it and they were going to draft legislation, essentially imposing a three factor apportionment formula upon the states and said states, this is how you have to do it. From that sprang the multistate tax commission (MTC) because the states, of course, came roaring up and said, whoa, whoa, whoa. Tenth Amendment, Tenth Amendment, no, Congress didn’t act. So they came together, formed the MTC, formed the compact and started working towards getting the compact passed. And I think it had to pass in seven states before it would be a compact two years after the multi state tax commission was formed. So we are kind of the antithesis of the MTC. We are the taxpayer side that has worked closely with the MTC. We've been adversaries at other times, but really the two organizations kind of go hand in hand. So we have the states on one side marching forward with what they want to do. And then COST is the company membership organization that works for the membership to advocate for the taxpayer point of view in the corporate tax world so that nothing is ever equal. But in theory, you've got equal representation from like a business side and a government side. Because the MTC is a quasi governmental agency, it's paid for by the states, by taxpayers. COST is paid for by taxpayers.

COST has a tiered system with the lowest level being three thousand dollars a year, and that's a company wide membership. So very small companies can be a member of cost. They can get involved. Where I do think we run into some issues with the smaller companies, if they have a lot of their issues can be very different from the large companies which have been traditionally the cost members. So you think of the size of the world and the Wal-Mart, and we are often thought of I mean, in this role I have been seen as the corporate lobbyists got better when I walk in. A lot of people don't even know I'm a tax attorney. They just think, oh, here is another lobbyist for big, big companies. But cost is very open to smaller businesses. It just can be challenging even if they can do it monetarily. I think sometimes their advocacy positions could be different. And so we've always struggled there. And I think they tend to go to like the small business organizations or their local chambers for more of that advocacy work.

Judy I think that what I find I'm on the Coalition to Simplify Colorado sales tax and I've been on the Governor's task force for the last four plus years trying to make meaningful change to our overall sales tax set up. And what I have found in our membership is it's not that they can't afford to join, it's who's going to take it forward in the company and manage it. The controller might not be able to or maybe they don't even have a CFO help. The people that could run the issues up to the company don't have the time to actually spend what they need to spend to help do the advocacy work. So I think it's all fine and good to put your money in there. But if you don't follow the money with a person who's helping to give voice to the issues you need to represent, you're not going to get there. And people are busy with a job. And that's what I have found. It's like we have one hundred dollar membership for our coalition. Just joined. Put your name on the roster, be a part of us. Put your voice out there. Let us say you are here. And they struggle with that because they think, well, I don't know, am I going to get anything out of it? Because you're doing something and thank you. But I don't know that I can help advocate for myself. So that's the challenge. I think with people getting involved, how are you going to make that membership meaningful to you?

Nikki I also think just being in this role and seeing how things unfold in state. Goals to the project you're talking about, Judy, I've seen this time and time again, it's actually the small businesses that have a far greater voice when the large company I mean, I can walk in and testify on behalf of the membership sound tax policy, say all the buzzwords. But if you get a local company in there, either saying we love it or we hate it, that has so much more impact. And so it is unfortunate that there aren't more folks that have time within those companies to focus on the issues because they can be so impactful in this in this state and local area. And I that's just something I've learned at cost. Obviously, it's not something we are often engaged in. But, yeah, it's so important for them to use their voice if they have a powerful message, because they're the ones that get the legislators to stand up and say, oh yeah, these are the guys that vote for me or these little guys to talk to their neighbor. That's right. Both right. And that that's how you move the needle. But it's also a challenge.

Judy How does COST decide what they're going to get involved in? Like where are we going to focus our efforts, what's going to be the most meaningful for our taxpayers? What is just something that like you can't do that, like it's bad policy. It's like how do you how do you decide that?

Nikki So COST is a nonprofit organization. So we have a board. Our board of directors is made up. I want to say twenty two to twenty seven members of the board, all from companies that are cost members. So they'll bury the members very widely as to their types of business. We've got retailers, we've got oil and gas, we've got telecom satellites. And so a broad spectrum of what the membership is. And it's the advocacy team at cost puts together what we call policy positions or policy statements. These are all on our website. We've got about twenty six of those, I think. And so we take those to our board. For example, we have a policy position against mandatory unitary combined reporting against gross receipts, taxes just focused on their tax policy, the administration. So fairness and clarity, those sorts of things. So we take those positions on the board. The board votes on them. Those are the advocacy efforts that we will engage in kind of proactively. So if any of those issues come up within a state, we are going to just take charge and go act in accordance with our policy position. Other issues are more on an ad hoc basis and really how we decide there is. Is it an interest? Is this an issue that is of interest to the broad membership? And if so, can the membership agree on the position? So, for example, marketplace facilitator, the role model for the remote sellers and marketplace facilitators, we've kind of been engaged on the sidelines, but not all of our members see eye to eye on exactly everything. So in some situations, we aren't able to kind of actively engage. So those are kind of the criteria that we look to on the legislative advocacy side. We also do judicial advocacy. So we weigh in with amicus briefs in different state cases. And there we just have a bit of a formal process that we go through to. We have a legal committee that helps us decide whether or not we're going to take a case. And very similarly, if it's a kind of the guiding principle is it's an issue that's of importance to the membership and there's not going to be a split among our members. So an example of a split, like we don't take a position on single sales factor or market based sourcing because there's winners and losers. And that's going to impact our members in different ways. So we essentially remain neutral. But and if those issues come up, we can go and talk about the policy….(revert to podcast)

Judy ….There is zero voice at the MTC for small sellers, there was a time when they were talking about Wayfair and remote seller collections. They had some folks like any other and probably other practitioners that were working with Avalara. They were talking then. But I think it's a voice that really gets lost in the states. Don't hear about it, and they don't think about it. And they don't understand that these decisions are having significant impact on small businesses and midsize businesses that are really just trying to make it. And you're going to crush them with state tax compliance. And that's something when Colorado kind of went to destination sourcing. Small sellers didn’t know how to do that. And then that's when Colorado pushed back their enforcement date is because they had such a presence within from that small business community. It was heartbreaking for me, which is probably why we've taken up the mantle to be involved, because no one's paying me to be on this governor's task force. I'm doing out of my own sheer desire and will and also to inform because I can't speak on behalf of that. And honestly, from my perspective, I can't make money on that. Right. I can't make money. Just do a ten dollar tax return. No one's going to pay me to do that. So then I'm representing somebody that isn't fixing their problems and it worries me, too. So I'm like, I'm not going to get you out of it. You're actually wrong, but you don't want to comply. Does it make sense for you financially? And I totally get that. So I'm kind of pushing maybe a little bit for me, too, because if I could make it simpler, they will comply, you know, so I would like everybody to have a win. Right. The governments get a little something, the business gets a little something, and then everybody in the end, it's all better for all of us. But if it's so difficult, people won't comply. Only the largest companies. Well, and think about that. I mean, think about that in the context of when Wayfair came out, how quickly the states pivoted to the marketplace providers because. No, I think there was a light bulb moment for them where….Anyway, it's just interesting. Careful what you ask for, but I don't think I've ever seen a state in my entire career move that quickly to get all the way through laws. And then I was really, like you said, astounded that marketplace all the time. The court didn't say that's OK, but that they also somehow blessed marketplace facilitation collection. And, you know, and that's untested. We have no idea whether or not that's actually constitutional. I mean, everybody's rolling with it….(revert to podcast)

UNKNOWN ….What do you tell a company? If my clients have like five or six states and Kansas is one of them I like, what are we going to do? We're going to fight Kansas for five hundred bucks. You already have a system we've just turned Kansas on. It's just not worth the fight. You're not going to be the one taking it to court unless you want to get together and do a class action. Like, forget it. I've done I don't care that much about Kansas, so there's a challenge. And in the same text, it's so hard because it's somebody else's money. I mean, you have the compliance costs, but if you get it wrong or the a bad, bad answer. Very bad answer. Yes. Especially when you're selling to people like you or me, you're not going to come back to me and send me a bill for 14 cents for because you of thing….(revert to podcast)

Meredith Well Nikki, we're certainly glad that you didn't stay shushed today. You helped us take, you know, this podcast to a whole new level that I think my producers feel pretty good about that. We really appreciate your time today. Best of luck with your new position and we look forward to hearing more from you in a year or so about the transition, right? And then, of course, Judy, thank you again for your time. I'm Meredith Smith. And until next time.