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Multistate taxes hit athletes the hardest

Part II: Visiting athletes get hit to play - Taxing nonresident athletes

Much has been said about having the home court advantage. There are many disadvantages to being the away team as an athlete, but paying the home jurisdiction's tax bill is probably not the first that comes to mind. Taxes for visiting athletes, or so called “jock taxes,” assess tax on income earned by nonresident athletes when they play or perform in another taxing jurisdiction. In general, these taxes are not all that different than the taxes assessed on all nonresident taxpayers. However, as was mentioned in Part I of this series, such nonresident taxes arguably impact athletes more heavily than taxpayers in other professions because athletes frequently travel to perform in numerous taxing jurisdictions, are highly compensated, and are easily identifiable when they perform in a particular taxing jurisdiction.

For example, the Ohio tax on athletes is authorized pursuant to O.R.C. § 5747.02. Such section of the O.R.C. makes every individual who earns or receives income in Ohio liable for income tax. It is well established that states have the authority to tax nonresidents. In one of the landmark cases on the subject, McCulloch v. Maryland, 17 U.S. 316 (1819), the U.S. Supreme Court stated that “[a]ll subjects over which the sovereign power of a state extends, are objects of taxation.”

There are two primary considerations when analyzing a nonresident athlete’s taxes:

  1. Apportionment of the nonresident athlete’s income to the appropriate taxing jurisdictions; and
  2. The state’s legal ability to tax such income

Methods of income apportionment

Taxing jurisdictions use various methods to apportion an athlete’s taxable income. Each method is designed to determine the amount of income to allocate to a state. Nonresident taxes on athletes are typically apportioned using one of two methods: “Duty Days” and “Games Played”.

Duty Days

In most states, including Ohio, a Duty Days method is utilized to apportion nonresident athlete’s income. The Duty Days method apportions a player’s income based on the number of Duty Days that occur in a particular jurisdiction compared to the total number of Duty Days. The exact definition of Duty Days varies by states, but in general it includes all the days when a player renders service from the beginning of the season through the last required game of the year, which may include the following: game days; practice days; team meetings; promotional events; and compensated days spent on the disabled list. The beginning of the season is typically measured from preseason, until either the end of the regular season or postseason. Some states, such as Arizona, do not include preseason days in total Duty Days, which increases the tax owed for regular season games. Duty Days typically do not include days that a player was not compensated, such as days when a player is suspended or on the disabled list. 

As an example, if LeBron James makes $21 million for the 2014 season, and spends 10 Duty Days out of a total 200 Duty Days in a Duty Day state (State 1) in which he is a nonresident, then LeBron will be taxed on $1,050,000 in income to that visiting state. Assuming that State 1 does not tax uncompensated days on the disabled list, if LeBron were to be injured and not be compensated while he is on the disabled list for three days while he is present in State 1, then he would have only spent seven Duty Days in State 1 and he would owe tax on $735,000 of income to State 1. However, if the visiting state (State 2) were to exclude 30 preseason days, and LeBron spends 10 Duty Days in State 2, then LeBron would owe tax on roughly $1,235,000 of income because the total number of Duty Days has been reduced to 170 days.

Games Played

The Games Played method apportions income based on the number of games played in a taxing jurisdiction divided by the total number of games played in a year. Michigan and Maine utilize the Games Played method. However, Michigan uses the Duty Day method for football. Ohio law also permits Ohio cities to tax visiting players. The City of Cleveland, for example, uses the Games Played method. Cleveland’s use of the Games Played method has been challenged by visiting football players and has resulted in two cases pending before the Ohio Supreme Court (Saturday v. City of Cleveland Bd. of Review, No. 14-0292 and Hillenmeyer v. City of Cleveland Bd. of Review, No. 14-0235), which was discussed in the Feb. 27, 2014 and the March 6, 2014 Multistate Tax Updates.

Apportionment of income

Athletes typically receive income from a variety of sources in addition to their salary under contract, including but not limited to, signing and performance bonuses and endorsements.


The taxation of bonuses varies considerably from state to state and is often unclear. For example, in New Jersey, performance bonuses are generally included as compensation for purposes of the Duty Days allocation and signing bonuses are included unless: (1) the payment for the signing bonus is not conditional upon the nonresident athlete playing in a specified number of games or performances, performing additional services, or making the team; (2) the signing bonus is payable separately from the salary and other compensation; and (3) the signing bonus is nonrefundable (N.J. Admin. Code Section 18:35-5.1(b)(4)(iv)). Therefore, in certain states, such as New Jersey, structuring an athlete’s signing bonus in a tax advantageous fashion creates opportunities to minimize apportionment to nonresident states.

Endorsement income

Endorsement income is not usually included in the apportionment calculation. In general, endorsement income is treated like royalties and is taxed by the athlete’s resident state. For example, assuming that LeBron qualifies as a resident of Ohio, advertising income from Nike to LeBron as part of a national advertising campaign would likely be taxable to Ohio because LeBron would be a resident of Ohio. However, endorsement income could be taxable to a state where that athlete does not reside if the endorsement requires an athlete to appear in an event located in a nonresident state. Therefore, when LeBron wears Nike apparel in a visiting game or appears at a Nike promotional event in a nonresident state, the income he earns from wearing the apparel or appearing at the event will likely be subject to tax in the nonresident state. 

Texas: Appellate court rules against oil and natural gas company in sales tax exemption case

On Aug. 21, 2014, the Multistate Tax Update addressed a Colorado case ruling in favor of a natural gas company in a sales tax exemption dispute. Here, we address a Texas case that dealt with a somewhat similar sales tax exemption statute, but held that equipment used in extracting oil and natural gas failed to qualify for the exemption.


In Southwest Royalties, Inc. v. Susan Combs, et al., No. 03-12-00511-CV (Tex. Ct. App. 2014), Southwest Royalties, Inc. (Southwest), filed a refund claim with the State of Texas Comptroller for taxes that it paid from Jan. 1, 1997 through April 30, 2001 on equipment used in the extraction of oil and natural gas. Southwest alleged that such equipment qualified for manufacturing exemptions in Tex. Tax Code § 151.318(a)(2), (5), and (10).

The pertinent Texas manufacturing exemptions are:

(2) tangible personal property directly used or consumed in or during the actual manufacturing, processing, or fabrication of tangible personal property for ultimate sale if the use or consumption of the property is necessary or essential to the manufacturing, processing, or fabrication operation and directly makes or causes a chemical or physical change to:
(A) the product being manufactured, processed, or fabricated for ultimate sale; or
(B) any intermediate or preliminary product that will become an ingredient or component part of the product being manufactured, processed, or fabricated for ultimate sale
(5), (10) tangible personal property used or consumed in the actual manufacturing, processing, or fabrication of tangible personal property for ultimate sale if the use or consumption of the property is necessary and essential to: (5) a pollution control process [and] (10) comply with federal, state, or local laws or rules that establish requirements related to public health.

The equipment Southwest sought exemptions for consisted of “casing, tubing, pumps, and related parts” in addition to services related to the equipment purchases. Southwest contended that “the equipment was used in or during the actual processing of product to extract and separate the mixture into its components of oil, gas, and water, and is necessary and essential to that process”, and caused a direct physical change to the products. Furthermore, Southwest contended that the equipment “was necessary and essential to a pollution control process and to comply with public health regulations” pursuant to the exemption statutes.

Southwest opinion

The court held that the extraction of oil and gas from the ground does not qualify as manufacturing. The fact that the term “extraction” was not specifically enumerated in the statute appeared to be the deciding factor for the court. The court in Southwest placed great emphasis on narrowly interpreting exemptions from taxation, and providing deference to the Comptroller’s interpretation. The court noted that “[s]tatutory exemptions are strictly construed because they undermine both uniformity and equality of taxation by imposing a heavier burden on some taxpayers instead of imposing the burden equally on all taxpayers.”

The court determined that the phrase “manufacturing, processing, or fabrication” in the exemption statutes does not include extraction. The court stated that the legislature’s distinguishing of manufacturing from extracting in other contexts lends support for their conclusion. The court agreed with the Comptroller that extraction is more like an act “in preparation for production” as opposed to an act of manufacturing. Furthermore, extracting was not processing because processing means “the physical application of the materials and labor necessary to modify or to change the characteristics of personal property” and to assemble or “make tangible personal property work in a new or different manner.” 34 Tex. Admin. Tax Code § 3.300(a) (5), (10).

Finally, the court agreed with the Comptroller that if it were to accept Southwest’s arguments that the manufacturing exemption includes equipment and services used in the extraction of oil and gas, then it would effectively make other provisions of Texas’ tax code unnecessary. For example, section 151.324 of the Texas Tax Code exempts certain equipment used for mineral exploration or production. In addition, one subsection of section 151.317 of the Texas Tax Code exempts gas and electricity sold for use in powering equipment exempted under the manufacturing exemption and used in a certain manner and another subsection exempts gas and electricity used “directly in exploring for, producing, or transporting, a material extracted from the earth.”

Pioneer v. Southwest

The Pioneer and Southwest cases deal with a somewhat similar set of facts and statutes, but the analysis and outcomes sharply contrast one another. While both cases claim to follow a plain meaning approach to analyzing the statutes, the Pioneer court was much more willing to stretch the meaning to exempt the property at issue. In that case, one of the manufacturing exemptions did include the term “extraction” but the equipment at issue was used for a gas gathering system, which the Pioneer court noted is not exactly the same as extraction. However, the Pioneer court determined that the gas gathering system was part of the manufacturing process and qualified for certain manufacturing exemptions.

The Southwest court, on the other hand, determined that when the boundaries of the manufacturing exemption were not clear from the statute, it was required to defer to the Comptroller’s interpretation of the statute unless it was plainly erroneous or inconsistent with the statutory language. Therefore, the Southwest court granted more deference to the taxing authority than the Pioneer court.

These two cases illustrate why a business should involve tax practitioners to assist them in determining whether certain activities of the business may qualify for exemptions from taxes when such activities do not clearly fall within or outside of such exemptions.

For additional information regarding these subjects or any other multistate tax issues, please contact:

David M. Kall

Susan Millradt McGlone

Jeremy J. Schirra

Multistate Tax Services

Businesses must be vigilant and careful in managing their state and local tax liabilities and exposures. We understand this can be a daunting task. McDonald Hopkins Multistate Tax Services provides a broad range of state and local tax services including tax controversy, tax evaluation, tax planning, and tax policy. With professionals who have worked both inside and outside government agencies, our multistate tax team leverages its knowledge and experience to help clients control their complex multistate taxes.