Oct 30, 2019
Last year, the U.S. Supreme Court found in favor of the State of South Dakota by expanding the definition of in-state nexus to include a “virtual presence” in South Dakota v. Wayfair, Inc. The Supreme Court approved the South Dakota law imposing filing requirements on businesses that have $100,000 of gross receipts or 200 transactions with customers in the state. Many states have adopted those thresholds, but others have altered them slightly.
Since the Supreme Court’s decision, many states have enacted legislation similar to South Dakota’s rule expanding sales tax conditions to require more businesses to register and file sales tax returns. Businesses can now be required to collect sales tax even if they do not have a physical presence in a state, so long as it meets some minimum thresholds.
Recently, Ohio and Pennsylvania adopted modified economic nexus provisions:
In response to the U.S. Supreme Court decision in Wayfair, Ohio has adopted an economic sales & use tax nexus standard. The new standard replaces the traditional physical presence nexus standard. Under House Bill 166, effective August 1, 2019, a seller is presumed to have sales & use tax nexus in Ohio if the seller has either gross receipts in excess of $100,000 from sales into Ohio or engages in 200 or more separate transactions in Ohio. The threshold under either test is measured during the current calendar year or the preceding taxable year. Taxpayers doing business in Ohio should review their sales data to determine if they are subject to the new nexus standards and are required to collect and remit sales tax from customers.
Beginning in the tax year 2020, the State of Pennsylvania will impose a new income tax nexus standard that is comparable to the sales & use tax economic nexus standard outlined in Wayfair. Historically, a taxpayer had income tax nexus in a state where it had a physical presence, i.e. carrying on activities beyond the solicitation of sales or having property located in the state. The Pennsylvania Department of Revenue is asserting that the physical presence is no longer required. Under the new standard, the state will impose an income tax filing obligation on remote taxpayers that are doing business and have an economic presence in the state. Economic presence under the Pennsylvania nexus standard is defined as having in excess of $500,000 of gross receipts sourced to Pennsylvania from the sale or lease of tangible personal property, sale of services or the sale or licensing of intangible property in the state. Taxpayers that have Pennsylvania sourced sales and are not filing an income tax return in the state should review their sales data to determine if they have an income tax filing obligation based on the new nexus standard for tax years beginning on or after January 1, 2020.
Click here to view an up-to-date state nexus guide.
Jun 20, 2018
April 17 was not only the end of tax season but also the day the Supreme Court heard South Dakota vs. Wayfair, Inc. This case will likely affect every business, no matter size or revenue. This case spotlights the collection and remittance of sales tax, specifically whether the responsibility should lie with the state or the business. Sales tax is considered a consummation or a value-added tax and is typically assessed to the end purchaser or user of a product. Most businesses are responsible for collecting and remitting these taxes. However, with any tax law, there are exemptions.
One of these exemptions comes from a previous Supreme Court Case from 1992 – Quill v. North Dakota. In this case, the Supreme Court ruled businesses only had to collect sales tax in states where they had a physical presence. Therefore, an out-of-state business whose only contact with a state was the sale of tangible personal property, did not need to collect and remit sales tax. If the sales tax wasn’t collected by the business the burden to remit to the State was then transferred to the resident of the State. Basically, if you don’t pay sales tax on a taxable purchase, YOU are now required to pay the tax on your individual tax return. And this is where the issue lies.
States governments argue the cost to enforce collections from an individual greatly outweigh any unpaid tax. As a result, state officials are pushing for the responsibility to lie with the business. Last year, South Dakota took action with the following economic threshold law: if your business has $100,000 in gross sales or over 200 varying transactions to consumers located within the state, then your business must collect and remit tax – no exceptions.
This brings us to South Dakota vs. Wayfair, Inc.
South Dakota wants to overturn the 1992 Quill ruling arguing the development of the internet and e-commerce establishes the physical presence of a business as outlined in Quill, therefore making businesses responsible for the tax collection. In addition, state officials maintained if an online business is doing substantial trade within their borders, then bricks-and-mortar businesses are at a disadvantage as consumers may opt to purchase a product online without paying sales tax.
Conversely, Wayfair argues the complexities of such transactions are too much for smaller businesses to overcome. Under current law, 45 states and thousands of local jurisdictions assess sales tax. Additionally, each state has varying laws on what is a taxable transaction and was is not. Lastly, Wayfair has contended any internet sales are at a disadvantage due to shipping and handling charges.
All eyes are now on the Supreme Court, who is set to rule by the end of this month on the “tax case of the millenium”. Stay tuned to see how this may impact you.
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