How the Pandemic, Covid-19 Protocol and the bubble have affected how the Jock Tax is Calculated and Reported
Introduction
During the 2019-20 NHL season players visited thirteen states and seven cities that impose a personal income tax. Games in these states and cities generated over $136.8 million in personal income tax revenue from NHL players with $31.2 million of that amount coming from non-resident hockey players from visiting teams. During difficult economic times, states often increase scrutiny of jock taxes to increase tax revenue. Non-resident taxes on professional athletes are referred to as a jock tax and NHL players on visiting teams make easy targets. Since states can easily identify those who played in their state or city by the simple use of a team schedule, tax agencies are able to effectively enforce their non-resident tax on visiting teams and their players.
State and City Taxation (Jock Tax Explained)
Under the United States constitution, states have the freedom to invoke their own tax policy, separate from the federal government, and in doing so state taxation impacts professional athletes in two ways:
The first is each state have their own constitutional power to tax residents on all their personal income from wherever it was earned. Although the definition of state resident may vary amongst the states, there are generally two criteria which will cause residency: physical presence and domicile. Since athletes generally play in a different state then they are originally from, and play in multiple jurisdictions throughout a season, it is important to determine residency before the fact rather than trying to determine it when you file your tax returns, or worse years later in a state tax audit.
The second is the ability of states to tax non-residents on income earned in their state and this is often referred to as a jock tax on professional athletes. Although athletes receive the greatest amount of notoriety in their payment of jock tax due to their profile and salaries, all non-residents, regardless of profession, are subject to non-resident state tax.
California
The jock tax begins and ends with the state of California. California’s enforcement of non-resident taxation on professional athletes can be documented back to 1968 and through their policies and enforcement the state has influenced and dictated all other states’ non-resident tax policies.
The sheer volume of California’s tax on revenue from NHL players dwarfs all other states with $36.5 million in total tax collected representing 26.6% of the total state and city tax collected on all NHL players in all jurisdictions. Of the $31.2 million in non-resident tax generated by visiting NHL players to states and cities during the 2019-20 season, nearly $12 million of that was paid to California. As the table below indicates, other than New York no other state comes close to the amount of jock tax collected on NHL players than California.
Table 1
Double Taxation on Jock Tax
Since non-resident taxes are additional to the resident taxes paid to the home state, there is the possibility of taxes being paid in two jurisdictions. To alleviate this burden, home states provide a tax credit to their residents for taxes paid to other jurisdictions. Tax credits may be limited to the tax rate of the home state – however, in most cases double taxation is limited.
Once again, California benefits from this practice of double taxation. Since California’s tax rate (13.3%) is higher than all other states, the tax that California receives from visiting players is always greater than the credit they give to their resident’s jock tax paid to other states. In comparing California with Illinois, both generate additional revenue by taxing visiting players; however, as illustrated in the table below, California generates considerably more.
Table 2
To further Illustrate this point, we can directly compare Illinois and California. An NHL player who is a California resident, playing for one of the three California based teams, will likely play at least one game in Illinois. When they play in Illinois, the player will pay jock tax to Illinois and will receive a full tax credit from California for that tax paid. The result is no additional tax burden for this player. Unfortunately, this is not true for an NHL player who is a resident of Illinois and is a member of the Blackhawks. The credit they receive in Illinois for jock taxes paid in California is limited to their Illinois tax rate, therefore, providing relief but not fully eliminating the additional tax imposed by California.
Overall, California profits from double taxation. By taxing non-resident Blackhawk players for games played in California, while also providing credits for taxes paid in Illinois for games played by their residents, California generates $434,665.27. Illinois, generates only $49,786.76 in jock tax from visiting players from the Kings, Sharks and Ducks playing in the state but needs to credit Blackhawk players over five times that amount for the jock tax they pay to California, resulting in a loss of $151,054.24. Therefore, both Blackhawk players and the state of Illinois end up losing tax dollars to California.
Table 3
Constitutional Challenges to the Jock Tax
For a state or city to tax income as a non-resident, it needs to be apportioned fairly and there needs to be a connection between the jurisdiction and that individual. This generally means a physical presence in the jurisdiction, but it could potentially be an “economical” presence – such as owning rental property in the state or city.
Tennessee and Cleveland provide two recent examples of jurisdictions overstepping their constitutional rights in trying to implement a jock tax on professional athletes.
Tennessee’s tax was a $2,500 flat tax on all NHL players, which was limited to three games and $7,500. Under this tax, it was constructed so that those players earning the league minimum were paying the highest tax rate. After my article “Is Tennessee’s Version of the Jock Tax Unconstitutional” challenged the constitutionality of this tax, the state withdrew the law and refunded any taxes paid by NHL players.
Cleveland assessed a jock tax on a player who did not even set foot into the city. Former NFL player Jeff Saturday (Indianapolis Colts) was assessed tax even though he was rehabilitating in Indianapolis and did not travel with the team for their game in Cleveland. The Ohio Board of Appeals concluded that the city’s apportionment of qualified wages was illegal because it taxed income that was not earned for work done or service attributed to Cleveland.
Allocation of Income & Pandemic and Covid-19 protocol
The pandemic has created havoc on the NHL schedule over the past 21 months. Postponing some game, cancelling others, while moving the end of the 2019-20 season and the playoffs into a bubble in Canada while pushing the entire 2020-2021 season into 2021.
The ever-changing NHL schedule, along with players being placed in COVID-19 protocol, potentially causing them to miss road games, has hampered both the team and the away state & city efforts to record which players should or should not be taxed as nonresidents in each jurisdiction. If a team had a road trip through California, but a player missed it due to illness or injury – then there should be no income allocated to or taxed by that state. This is true even if the W-2 statement indicates income and tax withheld for those games played in the state.
Therefore, it is important for players to keep track of road trips and games they missed and/or when in protocol and didn’t travel. Consequently, since no income is earned in these jurisdictions, there will not be any taxes owed even if the income is mistakenly reported on the W-2s.
Conclusion
California is aggressive in their enforcement of non-resident tax and their policy dictates and drives the jock tax for other states. States and cities are only able to collect a jock tax on income earned in their jurisdictions if there is physical or economic presence. With the pandemic, it is more important than ever for players to keep track of road games missed to properly reflect the amount of jock tax you need to pay each state. Properly reflecting income and tax on each state tax returns makes it easier to justify the position taken if any state questions the return that was filed.