California Superior Court Judge Rules in Favor of Ryan Suit Against State Ban on Performance-Based Fees

Jan 08, 2016, 16:09 ET from Ryan, LLC

DALLAS, Jan. 8, 2016 /PRNewswire/ -- A California Superior Court judge has granted a request for declaratory judgment by Ryan that strikes down a state ban on the use of performance-based fees in connection with applications by businesses for participation in the California Competes Tax Credit Program ("Program"). 

In a ruling released on January 7, 2016, Superior Court Judge Timothy M. Frawley found that the state exceeded its statutory authority in a 2014 agency regulation which sought to restrict companies that apply for the Program from paying performance-based fees to the tax professionals that assist them. The judge stated that the "cost of a consultant's services is a matter between the taxpayer and the consultant" and found that the state had failed to show any link between these costs and the economic development goals of the Program.

Judge Frawley wrote that banning performance fee arrangements "does nothing to stimulate 'new employment' or 'economic growth,' and does nothing to encourage businesses to invest in California. The only thing the ban is likely to accomplish is [to] discourage businesses with contingent fee arrangements from participating in the California Competes tax credit program.  This is inconsistent with the statutory goal of encouraging applications so that California can choose the projects that provide the most 'bounce for the ounce.'" 

The Program was created in 2013 and is administered by the Governor's Office of Business and Economic Development, informally known as GO-Biz. The Program is a discretionary incentive awarded to businesses to attract new capital investment and create/retain jobs in the state of California. It is a non-refundable income tax credit, which can be carried forward up to six years. Program participants are awarded tax credits in exchange for meeting certain job creation and capital investment requirements. Participants are selected on a competitive basis based on GO-Biz's evaluation of their applications. From the Program's outset, GO-Biz has required businesses to disclose in their applications information about their use of consultants and attorneys, the fees that are paid to them, and whether the fees were success-based.

In 2014, GO-Biz promulgated a new rule that went further by purporting to give the agency the authority to disqualify an applicant entirely on the basis of its fee arrangements. The rule states that GO-Biz may evaluate "the reasonableness of the fee arrangement between the applicant and any consultant, attorney, tax practitioner, or other third party that prepared or submitted the application, or provided any services related to the credit. Any contingent fee arrangement must result in a fee that is less than or equal to the product of the number of hours of service provided to the applicant and a reasonable hourly rate."

Ryan filed suit in August 2014 challenging the provisions of the Regulation governing consultant fee arrangements, especially the limitation on contingent fee arrangements. By successfully challenging the State's position, California taxpayers will be able to participate in this economic incentive program utilizing the fee arrangement that makes the most business sense to them.  

About Ryan
Ryan is an award-winning global tax services firm, with the largest indirect and property tax practices in North America and the seventh largest corporate tax practice in the United States. With global headquarters in Dallas, Texas, the Firm provides a comprehensive range of state, local, federal, and international tax advisory and consulting services on a multi-jurisdictional basis, including audit defense, tax recovery, credits and incentives, tax process improvement and automation, tax appeals, tax compliance, and strategic planning. Ryan is a three-time recipient of the International Service Excellence Award from the Customer Service Institute of America (CSIA) for its commitment to world-class client service. Empowered by the dynamic myRyan work environment, which is widely recognized as the most innovative in the tax services industry, Ryan's multi-disciplinary team of more than 2,100 professionals and associates serves over 12,000 clients in more than 40 countries, including many of the world's most prominent Global 5000 companies. More information about Ryan can be found at

Logo -


Sharon Welhouse