Indian Taxation

As sovereign governments, Indian tribes have the power to impose taxes on people and activities within their territories. At the same time, the Internal Revenue Service seeks to tax certain benefits that tribes provide to members, such as per capita payments. Further complicating matters, tribal governments must fight a relentless barrage of taxation efforts by state and local governments. U.S. Supreme Court decisions have only raised more questions and posed more challenges for tribal leaders and representatives.

With the intricacies of Indian taxation increasing, you need to arm yourself with the most up-to-date information about this complex area of Indian law, including recent IRS pronouncements on the General Welfare Exclusion and tax immunities reflected in the new Part 162 Leasing Regulation. During this class, we'll discuss your tribe’s taxing authority, tribal tax code development, the federal laws that formulate these policies and state authority to tax within Indian Country. You’ll learn about the treatment of tribes under the federal Internal Revenue Code (IRC) and examine the most recent Supreme Court decisions regarding taxation and the threat of congressional attempts to allow the taxation of tribes. We'll also examine the IRSí proposed guidance for the application of the General Welfare Exclusion (GWE) to Indian tribal government programs that benefit tribal members and what it will mean for your organization if itís adopted.

T O P I C S   I N C L U D E
General Principles and Definitions
  • The power to tax
  • Goals of taxation
  • Conflicts and goals
Federal Policy Periods
  • Federal policy periods
  • Definitions
Federal Taxes
  • Federal taxation of individual Indians
  • The general rule
  • Exceptions to the general rule
  • Federal taxation of Indian estates
  • IRS Doctrine of General Welfare
  • Federal income taxation and Indian tribes
  • Other federal taxes imposed on tribes:
    • Employment and/or withholding taxes
    • Federal excise tax
    • Native American handicrafts
  • Case studies (Revenue Ruling 67-284; Revenue Ruling 59-354)
State Taxes
  • Required program reports
  • Infringement
  • Federal preemption
  • Tribal preemption
  • Indian Commerce Clause
  • P.L. 83-280
  • The “geographical component”
  • Legal and economic incidence of taxes
  • State income tax case law
  • State sales and excise tax case law
  • Shifting legal incidence to the non-Indian
  • State authority to impose tax collection on reservation land
  • The dominance of federal preemption
  • State taxation of Indian property
  • Estate and inheritance taxes
  • Taxing tobacco purchased via the Internet
  • Real property taxes
  • Tax agreements
  • Tax-exempt bonds
Tribal Taxes
  • The need and the power to tax
  • Exercising the power to tax
  • Providing service to non-Indians
  • The preemptive power of tribal taxes
  • Attempts to limit tribal taxing power — the Commerce Clause and other arguments
  • Equal protection
  • Tribal tax considerations
  • Types of taxes
  • Tribal legal authority to enact specific taxes
  • Administration and payment
  • Tourism tax

Taxation of Tribal Fringe Benefits
  • Gifts of nominal value
  • Employee achievement awards
  • Fringe benefits
  • Vehicles for business and personal use
  • Insurance and health benefits
  • Sick pay plans and reporting
  • Cafeteria and dependent assistance plans
  • Adoption assistance plans
  • Employee meals and lodging
  • Educational assistance
  • Scholarships and fellowships
  • 401(k) plans
  • Per capita payments
  • Taxability of travel expenses
  • Non-vouchered travel expenses
Relevant Court Cases
  • Wagnon v. Prairie Band Potawatomi Nation
  • Sherrill v. Oneida Indian Nation of New York
  • Impact of cases on Indian taxation issues
  • Tobacco tax cases

*Topics subject to change.

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