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The battle over the ad valorem taxation of intangible property rages on in the western states. On June 3, 2011, 15 counties were dealt a heavy blow when the Utah Supreme Court ruled that accounting goodwill is not subject to property tax.
August 3, 2011
The battle over the ad valorem taxation of intangible property rages on in the western states. On June 3, 2011, 15 counties were dealt a heavy blow when the Utah Supreme Court ruled that accounting goodwill is not subject to property tax. T-Mobile USA, Inc. v. Utah State Tax Comm’n, Nos. 20090298, 20090308 (June 3, 2011). The accounting goodwill at issue was booked by T-Mobile after Deutsche Telekom AG (T-Mobile’s parent company) transferred common stock of another company to T-Mobile. Utah counties argued that this accounting goodwill should be included in T-Mobile’s assessed property value on the theory that it constituted taxable tangible property or, alternatively, that it constituted taxable tangible enhancement value.
The Utah Supreme Court disagreed with the counties’ position. Utah law exempts “intangible property” from property tax, but the court found that the statutory definition of intangible property does not include accounting goodwill because accounting goodwill is not capable of private ownership separate from tangible property. Likewise, FAS 141 provides that accounting goodwill is not an exchangeable asset that is separate from other assets of an entity. The court also considered whether Utah statutory law was consistent with the state constitution. The Utah Constitution provides that the legislature may determine whether to tax or exempt intangible property, but it precludes double taxation; if intangible property is made subject to property tax, the income from the intangible property cannot be taxed. In this case, the legislature chose to tax the income from intangible property, so the Utah Constitution would exempt intangible property from taxation. Relying on definitions found in case law and Black’s Law Dictionary, the court held that accounting goodwill was intangible property under the state constitution and was exempt from property tax.
Because intangible property is often valuable, it is little wonder why states and counties are aggressively pursuing taxing it.