sales tax jumpstart september 20, 2018 2.4 cpe credits ... · webinar attendees can earn 2.4 hours...

Sales Tax Jumpstart

September 20, 2018

2.4 CPE Credits

Presented by the Sales Tax Institute

Speaker:

Diane L. Yetter, Sales Tax Institute

Sales Tax Jumpstart September 13 to November 8, 2018

Before the Class: Please join the webinar 7 minutes before the scheduled time of the call for a prompt start. If you have never used Go To Webinar before please take time today to test your connection before your session here: http://bit.ly/UKElWx . If you have trouble logging on to GoToWebinar, please view the System Requirements: http://support.citrixonline.com/s/G2W/Help/SystemRequirements. We are aware that some past users have had issues logging in using Internet Explorer or if they have an older version of Go To Webinar installed on their machine. If this is the case you can try uninstalling GoToWebinar and reinstalling or you might want to try an alternative browser. If you continue to have trouble logging on, please call in on the phone using the number and passcode provide in your log-in email from GoToWebinar. You can follow the PDF materials which can be accessed at https://www.salestaxinstitute.com/20jumpstart-course-18materials. Day of Class: You will have received a personalized link for each class session to use to log into the webinar. Use this link and do not share the link with anyone else. It helps us monitor attendance and gives us the ability to assist you if there are technical issues. You will be able to listen to the webinar either through your computer or via a telephone connection. This information will also be in your personalized email. If you have not received the dial in information, please contact us immediately at [email protected] for assistance. If you have technical difficulties during the webinar, you will be able to chat online with our technical support through the Go to Webinar application. If you cannot log into Go To Webinar, please call our office at 312-701-1800 x3 for immediate assistance or email [email protected]. Please be aware that it is a violation of our copyright to record the class sessions. CPE Information: Webinar attendees can earn 2.4 hours of CPE credit in the “Taxes” field of study for today’s session. During the webinar, we will use polling questions throughout the scheduled presentation time. In order to receive CPE credit, you will need to participate in the polling questions. After the webinar, you will receive an email from [email protected] containing a link to complete a webinar evaluation form. To receive CPE credit, you will need to complete the evaluation form online and have participated in the polling questions.

The Sales Tax Institute is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors. State boards of accountancy have final authority on the acceptance of individual courses for CPE credit. Complaints regarding registered sponsors may be submitted to the National Registry of CPE Sponsors through its website: www.learningmarket.org. Other Sales Tax Institute Courses and Webinars Please visit www.salestaxinstitute.com for more information on the Sales Tax Institute’s live and online course offerings and webinars. The following webinars and live courses are currently scheduled. Visit www.salestaxinstitute.com for additional details and registration and additional offerings. Live Webinars:

September 25, 2018 – Local Taxes – Where, What, How, and Why? October 22, 2018 – Sales Tax Issues for Retailers After Wayfair November 28, 2018 – Manufacturing Sales Tax Exemptions That'll Save December 20, 2018 - Construction & Real Property Sales Tax Deep-Dive

Webinars On-Demand - available anytime: Sales Tax 101 Basic Concepts of Drop Shipments Sales Tax for E-Commerce Effective Audit Defense Techniques Sales Tax Challenges with Services Save Time & Eliminate Guesswork with Effective Tax Research

Diane L. Yetter, CPA, MST Diane L. Yetter is a strategist, advisor, speaker and author in the field of sales and use tax. She is president and founder of YETTER, a sales tax consulting and tax technology firm in business since 1996. She is also the founder of The Sales Tax Institute, a premier think tank that offers live and online courses to educate business professionals about sales and use tax. Diane works with an extensive network of capable partners to deliver a variety of sales tax services ranging from tax technology to tax policy and planning and training. She works with clients of all sizes—from Fortune 10 to small, family-owned companies—in a variety of industries. She is a Certified Implementation Partner and Trainer with Thomson Reuters ONESOURCE Indirect Tax, a Certified Training and TDM Specialist for Vertex, Inc. and a Business Partner of Avalara and VertexCloud. As a speaker, Diane is frequently asked to present to industry groups concerning sales and use tax issues including the Council on State Taxation (COST), Chicago Tax Club, Diversified Communications (IOFM and Accountex), the Institute of Professionals in Taxation (IPT), National Association of Credit Managers (NACM), National Association for Retail Marketing Services (NARMS), Vertex User Conference, Thomson Reuters User Conference, and Avalara. As an author, Diane has written articles concerning sales and use tax issues; was editor for the 1995-1996 edition of the Information Technology Association of America Software & Services State Tax Report and authored Drop Shipments: Taxation, Compliance and Planning and Multistate Guide to Sales and Use Tax: Manufacturing, both published by CCH. She also is the author of the US Sales Tax Chapter for the IBFD VAT Worldwide Research Database. Diane provides answers to sales tax questions on the website www.salestaxsupport.com. She has also appeared as an expert witness. Diane is a member of the AICPA, Illinois CPA Society, Chicago Tax Club, Chicagoland Chamber of Commerce Taxation Committee, Taxpayers’ Federation of Illinois and the Institute of Professionals in Taxation. She is a member of the Practitioner Connection with the Council on State Taxation, and represents client concerns on a number of task forces. Diane was named in Accounting Today’s 100 Most Influential People in Accounting for 2011, 2012, 2017 and 2018. Diane serves on the KU Endowment Association’s Board of Trustees and serves as Immediate Past Chair of the Dean’s Board of Advisors, University of Kansas School of Business where she is also an adjunct professor, teaching topics on state and local taxation and entrepreneurship. Diane earned a BS in accounting and business administration from the University of Kansas in 1985 and an MS in taxation from DePaul University in 1994. Prior to founding the company, Diane was a state and local tax manager in the Chicago office of Arthur Andersen LLP, the sales and use tax director for the Quaker Oats Company, and a sales and use tax auditor for the Kansas Department of Revenue.

9/20/2018

Copyright © Sales Tax Institute 2018 1

Nexus & Constitutional Provisions | September 20, 2018

Copyright © Sales Tax Institute 2018

Administrative Announcements

• Digital Goodie Bag• CPE Credits/Evaluation Forms

• Linked In Group posted questions

Copyright © Sales Tax Institute 1997‐20182

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Nexus and Constitutional Provisions


Nexus

• Level of connection between a taxing jurisdiction and an entity

• Controlled by U.S. Constitution under the Due Process Clause and the Commerce Clause

• Supreme Court has shaped the definition

• “Substantial physical presence”• Activities of individuals or presence of property

• Economic Nexus• Sales or transaction level of activity


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Federal Limitations

• Provides constraints on taxing ability• State law can’t violate constitution

• Not federal law dictating state law• Focuses on commerce between the states


Equal Protection Clause

• 14th Amendment

• Permits states to impose tax on specific classes of persons, property, or services

• States free to create different classes if non‐discriminatory

• States cannot discriminate against out‐of‐state corporations


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Import/Export Clause

• No state to impose imposts or duties on imports or exports

• Prohibits states from laying taxes on imports and exports

• Tax sustained when:• Import is no longer in transit

• Export has not begun transit to foreign destination


Public Law 86‐272

• Federal Statute that impacts state’s ability to impose a state income tax on an out‐of‐state corporation

• No impact on sales, use, excise, franchise or other non‐income taxes

• This means just because you are registered for sales tax you might not need to be registered for income tax


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Public Law 86‐272 (cont.)

• To be protected:• Employee/representative’s activities limited to solicitation of sales of tangible personal property

• Orders for sales are accepted out‐of‐state• Orders filled by shipment or delivery from outside the state


Public Law 86‐272 (cont.)

• Business may be subject to sales tax, but not income tax depending of level of activity in state

• Franchise taxes and other similar taxes not based on net income are not protected• NJ – Franchise Tax• OH – CAT • TX – Margins Tax• WA – Business & Occupation Tax

• States’ efforts with economic nexus for income tax


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Commerce Clause

• U.S. Constitution grants Congress power to regulate commerce with foreign nations and among the states.

• Limitation on state power

• Failure of Congress to act • Problems when a state imposes tax on privilege of engaging in interstate commerce

• Nexus created when business maintains a significant presence through a physical presence of people or property or economic activity


Due Process Clause

• Requires definite link or minimum connection

• Income connected to state related to values connected with the State

• Purposeful directed activities•Magnitude of contacts

• Tax is related to benefits received by business• In essence this is the new threshold after Wayfair


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Nexus Cases


Norton

• Norton Co. v. Department of Revenue, 340 U.S. 534 (1951)

• Norton was an out‐of‐state and in‐state business which were two legal entities. Within Illinois it maintained a sales office and employees.

• The court found that nexus existed on part of the business (one legal entity) and not on the other legal entity.

• Norton established nexus with its in‐state legal entity and was required to collect tax on over the counter sales in Illinois and also on orders shipped to Illinois or customer pick‐ups at the Illinois office.

• However, it was not required to collect tax on its mail order sales from the out of state legal entity where the customer had no contact with the in‐state office.


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National Geographic

• National Geographic v. California, 430 U.S. 551 (1977)• National Geographic is based in Washington D.C. It made mail order sales into California.

• Within California, National Geographic maintained an office to solicit sales of magazines but not the goods sold through mail order that California was attempting to tax.

• The court found that since the in‐state office was part of the same legal entity as the mail order business, National Geographic maintained an in‐state office which created nexus for all activities by the company.

• Therefore, sales tax was required to be collected on all its taxable sales into California.


Scripto

• Scripto, Inc. v. Carson, 362 U.S. 207 (1960)• Scripto made sales into Florida. • Scripto did not maintain any offices or facilities in Florida. Nor did it have any employees located in Florida or visiting Florida to solicit sales.

• Its only activity in Florida was sales solicitation by independent contractors.

• The court found that this activity by independent contractors provided enough presence for the out‐of‐state business that it was required to collect tax on sales into Florida.


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Complete Auto Transit

• Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S. Ct. 1076 (1976)

• Four Prong Test • Substantial Nexus with the State• Fair Apportionment

• Non‐Discrimination against Interstate Commerce

• Fair Relationship to Services Provided


Complete Auto Transit (cont.)

• Substantial Nexus• Activity concerning consumption of products & services• Nature of Activity• Doesn’t require physical presence

• Fair Apportionment• State can tax the entire transaction without apportionment• Must provide a credit mechanism• Absent credit mechanism, tax is unconstitutional• Internal and external consistency • No double taxation


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Complete Auto Transit (cont.)

• Non‐Discrimination against Interstate commerce• Rate discrimination• Exemption discrimination• Complimentary Use Tax is not discriminatory

• Fair Relationship to Services Provided by State• What benefit is business getting from the tax revenue it pays• Police & Fire Protection• Trained Work Force• Civilized Society


National Bellas Hess

• National Bellas Hess v. Department of Revenue, 386 U.S. 753 (1967)

• Illinois could not demonstrate nexus existed by a company whose sole activity was sales from outside the state

• Focused on physical presence• Deemed Commerce and Due Process Clauses to be equal

• Physical presence test became standard for determining nexus

• Dissenting Opinion focused on economic nexus theory


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Quill

• Quill Corporation v. North Dakota, 112 S.Ct. 1904 (1992)• Catalogues and software in the state• Is economic presence enough for nexus

• Two levels of nexus• Due Process Nexus• Commerce Clause Nexus


Quill (cont.)

• Due Process• Requires minimum contact

• Economic presence and purposeful direction of activities is enough

• Physical presence is not required• Is it reasonable to require it to defend a suit?• Overrules prior cases that require physical presence for Due Process

• Does not allow collection requirements, but does allow reporting requirements


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Quill (cont.)

• Commerce Clause• Requires substantial physical presence• Can have Due Process but not Commerce Clause Nexus

• Economic presence only can’t create collection responsibility

• Limits the reach of states taxing authority


South Dakota v. Wayfair

• 5/1/16 – South Dakota Economic Nexus effective date

• 3/6/17 – South Dakota v. Wayfair, Inc., S.D. Cir. Ct., No. 32 Civ. 16‐000092

• 8/29/17 – South Dakota Supreme Court heard oral arguments over South Dakota’s economic nexus legislation

• 9/13/17 – The Court struck down the state’s economic nexus legislation

• 10/2/17 – South Dakota filed a petition for certiorari with the U.S. Supreme Court to take up SD v. Wayfair

• 1/12/18 – U.S. Supreme Court agreed to hear SD v. Wayfair

• 4/17/18 ‐ U.S. Supreme Court heard oral arguments for SD v. Wayfair

• 6/21/18 – U.S. Supreme Court issues decision


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South Dakota v. Wayfair (cont.)

• In a 5‐4 decision, the Court ruled in favor of South Dakota and overruled Quill and National Bellas Hess

• The Court concluded that “the physical presence rule of Quill is unsound and incorrect.”

• Although the decision found in favor of South Dakota, it was also remanded to the South Dakota Supreme Court to evaluate if the provision meets the other tests for constitutionality.

• Still awaiting SD Circuit Court decision


South Dakota v. Wayfair (cont.)

• South Dakota’s law, and its tax laws generally, minimizes the burden on interstate commerce. • SSTP Full Member state

• Limited rates and rate structure

• Simplistic taxability rules

• Nexus law is prospective from decision


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Remote Seller Nexus Legislation


Click Through Nexus

• Typical Attributes• Minimum sales threshold into state (typical is $10,000)• Commission payment to in‐state resident• Commission payments for successfully completed orders• Applies for online and offline activities

• Is NOT• Click advertising• Banner Ads

•Mimics Scripto decision for independent contractors• New York initiated in 2008


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Click Through Nexus: Enacted and Proposed Legislation

Affiliate Nexus

• Typical Requirements• Remote retailer holds a substantial interest in, or is owned by, an in‐state retailer and the retailer sells the same or a substantially similar line of products under the same or a similar business name, or

• In‐state facility/employee used to advertise, promote, or facilitate sales to an in‐state consumer

• May not require common ownership


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Affiliate Nexus (cont.)

• Typical Requirements• May include activities in the state on behalf of the out of state business to benefit the out of state business’ customers

• Shares management, business systems, business practices, or employees with the retailer, or engages in intercompany transactions with the retailer

• In essence overturns Norton



Affiliate Nexus: Enacted and Proposed Legislation

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Economic Nexus

• Typical Attributes• Does not require physical presence • Correlates with a set level of sales or gross receipts activity

• Prohibited under Quill and Commerce Clause

• Some states enacted in conjunction with Notice & Reporting as an option to not collect

• U.S. Supreme Court handed down decision in South Dakota v. Wayfair on June 21, 2018, paving the way for economic nexus to proliferate.


Economic Nexus

• States have reacted since the decision• Prior legislation with future or delayed effective dates• Prior legislation with litigation• New legislation• New regulations relying on old law• Policy announcements


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Economic Nexus: Enacted and Proposed Legislation

N/AProposed in 2018Enacted

X

States with Economic Nexus

•Most states’ threshold is $100,000 or 200 transactions

•Most states are using TOTAL sales not TAXABLE sales

• Exceptions:• Alabama ‐ $250,000• Connecticut ‐ $250,000 AND 200 transactions• Georgia ‐ $250,000 or 200 transactions• Massachusetts ‐ $500,000 and 100 transactions plus cookie• Minnesota ‐ $100,000 and 10 sales or 100 transactions• Mississippi ‐ $250,000• Ohio ‐ $500,000 plus cookie• Tennessee ‐ $500,000 Copyright © Sales Tax Institute 1997‐201836

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States with Economic Nexus (cont.)

• The following states do not specify gross sales in their threshold:


• Alabama (retail)• Illinois (retail)• Minnesota (retail)

• Vermont (non exempt sales)• Wisconsin (retail)


• Effective January 1, 2018• Ohio – litigation pending, no stay

• Effective July 1, 2018• Hawaii• Maine• Oklahoma (as alternative to notice and reporting)• Vermont

• Effective July 31, 2018• Rhode Island – notice and reporting effective August 17, 2017

• Effective September 1, 2018• Mississippi


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• Effective October 1, 2018• Alabama• Illinois• Indiana• Kentucky• Maryland• Michigan• Minnesota• New Jersey• North Dakota• Washington ‐ for remote sellers exceeding $100,000/200 transactions

o July 1, 2017 – B&O tax; January 1, 2018 – Sales tax as alternative to Notice/Reporting

• WisconsinCopyright © Sales Tax Institute 1997‐201839


• Effective November 1, 2018• North Carolina• South Carolina• South Dakota

• Effective December 1, 2018• Colorado• Connecticut

• Effective January 1, 2019• Georgia• Iowa• Louisiana• Nebraska• Utah


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• Additional state effective dates• Massachusetts – October 1, 2017 ‐ litigation pending, no stay

• Pennsylvania – April 1, 2018 – TPP; April 1, 2019 – digital as alternative to Notice/Reporting

• Tennessee – July 1, 2017 – litigation pending, enforcement stayed

• Wyoming – July 1, 2017 – litigation pending, enforcement stayed



• Proposed• Nevada – regulation approved awaiting Legislative Commission to adopt the regulations – October 1, 2018 effective date

• Texas – proposed regulation for $500,000 effective January 1, 2019 with final requirement to register of October 1, 2019

• California – draft language of $500,000 threshold not included in any bill before session ended; expected in 2019 legislative session

• New Mexico – proposed legislation with $100,000 threshold. This bill was indefinitely postponed on January 24, 2018.


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Marketplace Nexus

• Requires online marketplace facilitator to collect tax on behalf of sellers operating through their systems

• Typical requirements include that the marketplace facilitator collects revenue from the customer and manages multiple activities related to the selling process

• Key provisions relation to collection of sales revenue from customer

•MTC Workgroup (https://bit.ly/2MHWsPb )



Marketplace Nexus: Enacted and Proposed Legislation

http://www.mtc.gov/getdoc/d3f9e214-6006-4f76-bca2-7287be89dd06/Wayfair-Implementation-Informational-Project.aspx

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States with Marketplace Nexus

• Effective January 1, 2018• Washington

• Effective April 1, 2018• Pennsylvania – April 1, 2018 for sales of TPP

• Effective July 1, 2018• Oklahoma – April 10, 2018 election

• Effective August 17, 2017• Rhode Island

• Effective October 1, 2018• Minnesota

• Effective December 1, 2018• Connecticut Copyright © Sales Tax Institute 1997‐201845

States with Marketplace Nexus (cont.)

• Effective January 1, 2019• Alabama• Iowa

• Effective March 1, 2019• South Dakota

• Effective April 1,2019• Pennsylvania – for digital goods

• Additional state effective dates• Arizona – Ruling issued September 20, 2016 but not enforced


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States with Marketplace Nexus (cont.)

• Proposed Marketplace• South Carolina – October 1, 2018 in proposed draft regulation• New Jersey – October 1, 2018 in vetoed legislation• Vermont – July 1, 2018 in proposed legislation

• California – in draft language that didn’t make into bill

• New York – in draft language that didn’t make into bill


Reporting Requirements

• Colorado enacted effective March 1, 2010 following QuillDue Process discussion• Challenged in state and federal courts• Case heard in U.S. Supreme Court on whether case could be heard in federal court and whether Tax Injunction Act applied

oFound Tax Injunction Act didn’t apply as law didn’t involved collection of tax

oJustice Kennedy statement leads to South Dakota legislation and Wayfair case

• 10th Circuit Court with Justice Gorsuch found constitional


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Reporting Requirements

• Typical Attributes• Prohibits advertising no tax applies• Retailer must notify customers of use tax obligation

• Retailer may be required to send purchasers an annual statement of their purchases

• Retailer may be required to send an annual report to state DOR

• Thresholds may apply

• Penalties may apply


Reporting Requirements (cont.)

• 3 different categories of legislation • Retailers aren’t allowed to advertise that no sales tax is due

• Retailers must notify purchasers of their use tax obligation, but no penalties for non‐compliance

• Retailers must notify purchasers of their use tax obligation, send annual summaries of customer purchases to customers, and file customer information reports with the DOR and penalties apply for noncompliance


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Reporting Requirements: Enacted and Proposed Legislation

States with Reporting Requirements

• Effective July 1, 2017• Alabama – never really enforced• Colorado• Louisiana – no penalties• Vermont (also May 24, 2011 with no penalties) – with penalties

• Effective August 17, 2017• Rhode Island

• Effective January 1, 2018• Washington

• Effective April 1, 2018• Pennsylvania – for sales of TPP

• Effective July 1, 2018• Oklahoma – June 9, 2010; November 11, 2016; April 10, 2018 with penalties


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States with Reporting Requirements (cont.)

• Effective December 1, 2018• Connecticut

• Effective January 1, 2019• Georgia• Iowa

• Effective April 1, 2019• Pennsylvania – for digital goods


States with Reporting Requirements (cont.)

• Additional state effective dates – only web notices and not penalties• Kentucky – July 1, 2013• South Dakota – July 1, 2011• Tennessee – March 26, 2012

• Proposed• Kansas – bill died on May 4, 2018

• Nebraska – indefinitely postponed on April 18, 2018


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Sales Tax Institute Resources

• Remote Seller Nexus Chart: https://www.salestaxinstitute.com/resources/remote‐seller‐nexus‐chart

• Remote Seller Resources Page: https://www.salestaxinstitute.com/resources/remote‐seller‐resources


Federal Activity

•Marketplace Fairness Act (MFA) of 2017

• Remote Transaction Parity Act (RTPA) of 2017

• No Regulation Without Representation Act of 2017

• Stop Taxing Our Potential Act of 2018• Protecting Businesses from Burdensome Compliance Cost Act of 2018

• Online Sales Simplicity and Small Business Relief Act of 2018


https://www.salestaxinstitute.com/resources/remote-seller-nexus-chart

https://www.salestaxinstitute.com/resources/remote-seller-resources

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Practical Applications of Nexus


Practical Applications of Nexus

• Evaluate your activities ‐ people and property• Evaluate remote seller legislation

• Determinate level of activity and visibility

• Evaluate economic impact


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Practical Applications of Nexus (cont.)

• Have nexus and are not registered• Nexus requires collection• Statute of Limitation issues

• Registration process evaluation• Customer Inquiries

oExemption Certificates for exempt sales

oAudits

oUse Tax Paid



• Have nexus and are not registered• Voluntary Disclosure• MTC ‐ National Nexus Program

• Amnesty Programs ‐ For updated list of current amnesty programs visit https://www.salestaxinstitute.com/resources/sales‐tax‐amnesty

• Illegal to collect taxes before registering


https://www.salestaxinstitute.com/resources/sales-tax-amnesty

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• No Nexus?• Cancel registration• Voluntary Filer

• Not registered?• Notice & Reporting requirements

• Use Tax alerts to customers


Determining Whether You Need to Collect Sales Tax – Next Steps

• Gather your data ($ amount of sales, # of sales into a state)

• Figure out where you have collection responsibility• Compare it against the state legislation

• Determine the taxability of what you’re selling

• Register in the state(s) if needed•Make sure you have some sort of calculation system and compliance process


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Questions?Complete Evaluation Survey


Homework and Tools


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Homework

• Complete Nexus Questionnaire for your company• https://www.salestaxinstitute.com/20jumpstart‐course‐18materials

• Using information from today’s class and the data from your company identify where you are required to be registered

• Compare results against where you are registered

• Bring your questions to next week’s class for debrief or post in Linked In group for classmate’s input


Tools

• Remote Seller Nexus Chart ‐https://www.salestaxinstitute.com/resources/remote‐seller‐nexus‐chart

• Amnesty Chart ‐https://www.salestaxinstitute.com/resources/sales‐tax‐amnesty

• Nexus Questionnaire• Nexus White Paper (coming early next week)


https://www.salestaxinstitute.com/20jumpstart-course-18materials

https://www.salestaxinstitute.com/resources/remote-seller-nexus-chart

https://www.salestaxinstitute.com/resources/sales-tax-amnesty

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Next Week

• Nexus Homework Debrief

• Registration• Streamlined Sales Tax


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sales tax jumpstart september 20, 2018 2.4 cpe credits ... · webinar attendees can earn 2.4 hours...

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