SB 153 and 97 were signed into law today by Governor Mike Parson making Missouri the final sales tax collecting state to implement an economic nexus law after the South Dakota v. Wayfair Supreme Court decision in 2018. The new economic nexus legislation will become effective on January 1, 2023 and will require vendors selling over $100,000 annually to Missouri customers to register and collect use tax.
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Executive Orders 20-03 through 21-13 (regarding personal income and sales and use taxes) that were enacted in Indiana during the COVID-19 pandemic will be rescinded as of June 30, 2021.
An employee working from home in Indiana due to the result of a federal, state, or local governmental work from home declaration will again create Nexus in the state beginning on July 1, 2021. The only accommodation that will allow an employee to work in Indiana without creating nexus is a physician’s order stating that the employee is unable to work in an office environment. The order must be put in place prior to June 30, 2021 and must not yet have expired.
Additionally, manufacturers making donations of medicine, medical supplies, or other eligible items to fight the COVID-19 pandemic in Indiana will no longer be granted waivers for use tax obligations.
Florida was one of last states which did not have a collection requirement for out-of-state sellers. This has now changed. Effective July 1, 2021, businesses making at least $100,000 of remote sales into Florida during the previous calendar year must register and collect sales and use tax, including any applicable discretionary sales surtax. Businesses are given a 90 day grace period and must register by September 30, 2021 to avoid penalties on previous remote sales and use taxes due.
The Pennsylvania Department of Revenue is currently administering a voluntary compliance program that is open until May 8, 2021. Unlike the Department’s standard Voluntary Disclosure Program which has a lookback period of the current year plus the previous 3 years for sales and use taxes, the lookback period for this program will not extend earlier than January 1, 2019. Any business that has inventory or stores property in Pennsylvania, and who is not already registered to collect and pay Pennsylvania taxes, may complete the online business activities questionnaire to determine eligibility. Once submitted, the Pennsylvania Department of Revenue will complete a review of the business and will respond with details on how to proceed.
- Non-compliance penalties, past-due returns, and unpaid sales and use taxes owed prior to January 1, 2019 for eligible (or qualifying) businesses with be waived once in compliance
- Any abatements received are conditional upon maintaining compliance
California Tax Returns due between December 15, 2020, and April 30, 2021, for taxpayers reporting less than $1 million in tax on a return, will be extended three months from the original due date. If you have a return that was originally due during this time frame, relief will be provided automatically and you are not required to seek an extension from the CDTFA.
The City of Chicago’s economic nexus threshold, includes a Safe Harbor provision for small businesses. The Safe Harbor Provision, as it relates to the economic threshold, protects entities from creating nexus provided that they have no significant contacts within the City such as:
- Employees within the City of Chicago or any activities being performed by employees or agents within Chicago on the entity’s behalf
- Agreements with other businesses in Chicago
- A physical presence in Chicago
- Advertising directed at Chicago customers
If an out-of-state entity has no contact with Chicago other than sales, which when combined over the last four quarters have not exceeded the City’s economic nexus threshold of at least $100,000 in sales or more than 200 sales transactions, it is protected by the Safe Harbor provision and will not be expected to collect Chicago’s Home Rule personal property lease transaction tax (as applied to nonpossessory computer leases) or the Chicago amusement tax (as applied to amusements that are delivered electronically) e.g. online gaming and streaming.
Effective July 1, 2021, Safe Harbor rules will be applied on a prospective basis. No refunds or credits will be granted for taxes paid or remitted before that date. Please note: The Safe Harbor Provision does not affect the issue of whether a customer must pay taxes, only whether an entity has the duty to collect.
If an out-of-state entity qualified in the past, but no longer qualifies under Safe Harbor provision, it must:
- Register with the City’s Department of Finance within 60 days
- Begin collecting taxes within 90 days
- Continue collecting taxes for at least twelve months
If your business was affected by the December 7, 2020 Health and Human Services order prohibiting gatherings, then the Michigan Department of Treasury is waiving penalty and interest for any sales, use, or withholding tax paid after the January 20th due date. Eligible taxpayers must report and pay the tax due no later than February 2, 2021 to take advantage of the waiver.
Waiver applies to:
- 2020 4th quarter returns
- Returns and payments due on January 20, 2021
In an effort to “Level the Playing Field” between In-State and Remote Retailers, beginning January 1, 2021, Remote Retailers and Marketplace Facilitators will be subject to the collection of Illinois Retailers Occupation Tax (ROT) on sales of tangible personal property when meeting certain thresholds.
Under these new changes, remote sellers that make 100% of their sales into Illinois through a Marketplace Facilitator will not be considered the retailer for tax assessment purposes. Instead, the Marketplace Facilitator will be considered the retailer and incur ROT at the purchaser’s location (destination rate).
Marketplace Facilitator sales will be assessed according to the three factors outlined below:
- Sales made within Illinois will be assessed ROT according to the location of the sales activity
- Sales made outside Illinois, but fulfilled from inventory located within Illinois, will be assessed ROT according to the location of the inventory
- Sales that are both made and fulfilled outside of Illinois will be assessed ROT according to the purchaser’s location (destination rate)
Remote sellers will need to continue to monitor Illinois economic nexus thresholds when exceeding $100,000 gross receipts or 200 or more separate transactions to Illinois residents.
Please reach out to Thompson Tax for further assistance or questions regarding this sales tax change.
As of March 1, 2019, the German tax authorities sanctioned the implementation of a new tax certificate, the “USt 1 TI”, to ensure that all sellers established outside of the European Union are in compliance with German VAT regulations. As of October 1, 2019, this obligation become compulsory for all sellers established within the European Union as well.
To continue or commence online selling activities, sellers now need to hold a valid USt 1 TI VAT Certificate. Failing to meet this requirement may cause the launch of your online activities in Germany to be delayed, or your current online activities to cease.
The USt 1 TI VAT Certificate, which is valid for a 3-year period, is issued after registration for VAT in Germany and upon successful completion of the certificate application process.
With a branch office based in Germany, our Partner Firm can provide you with local tax representation services to assist you with the application process. If you make sales to customers in Germany and would like assistance with obtaining the USt 1 TI VAT Certificate, please reach out to us for an introduction.
Illinois’ Governor Pritzker is providing businesses that operate eating and drinking establishments some much needed relief during the COVID-19 pandemic. After a strong push from merchants, the Governor’s new policy provides a two-month reprieve for businesses needing to remit collected sales taxes to the state for processing. This concession offered by the Governor will help preserve liquidity for companies that are suffering from decreased income during the ongoing crisis, but who are still facing operational expenses.
The deferral in sales tax will apply to bars and restaurants that paid $75,000 or less in sales tax in 2019; and will include approximately 24,000 establishments. These establishments will still have to file returns for March, April, and May, but will be allowed to withhold their payments for two months without being charged interest. There will also be no penalties accrued providing that the merchants make payments in four timely installments beginning on the 20th of May, then again in June, July, and August. Officials estimate that four out of five bars and restaurants statewide will benefit from this deal.
Oregon legislators passed a new “gross receipts” tax known as the Corporate Activity Tax (“CAT”), which officially became effective January 1, 2020. While Oregon currently does not administer a sales or use tax, the effects of the CAT may now require your business to register in a state otherwise part of the collective “NOMAD” states for sales and use tax purposes.
The Oregon CAT affects most businesses, including unitary groups of businesses, doing business in the state. Most, if not all business types are included, such as S-corporations, C-corporations, partnerships, sole proprietorships, and other business entities.
While all businesses would potentially be affected by this legislation, only those with commercial activity above $750,000 during a one-year period would be required to register. Those business would then be required to file a CAT return once sales have reached over $1,000,000 in Oregon commercial activities.
What are Commercial Activities
For purposes of CAT, commercial activities include the total amount of transactions made in Oregon and realized by the business, without deduction for expenses incurred by the business. The accounting method use for federal income tax returns will be the accounting method adopted by this tax type.
CAT Nexus Position
Similar to a sales tax, CAT will govern only on businesses with substantial nexus in Oregon. Substantial nexus includes physical presence, maintaining systematic and continuous contacts with Oregon’s economy, filing reports or attributing gross receipts to Oregon regulatory bodies or customers, or deliberately marketing or soliciting Oregon customers, etc.
Businesses with substantial nexus who exceed the $750,000 commercial activity threshold during a calendar year would be required to register within 30 days of exceeding the threshold, with penalties for non-compliance.
If your business sells from within, or otherwise has substantial nexus with Oregon and is close to exceeding thresholds, we can assist you with registration and maintaining compliance. As there are many CAT details and nuances that can be easily overlooked, please refer to Thompson Tax & Associates as your Trusted Tax Advisor.
Please contact Thompson Tax for all your CAT questions and concerns at firstname.lastname@example.org
For those who may qualify for relief, the CDTFA has prepared an announcement describing the formal application process and is also providing a new application form.
In December of 2018, the California Department of Tax and Fee Administration (CDTFA) announced that, as a result of the U.S. Supreme Court’s Wayfair decision (Dock. No. 17-494), out-of-state retailers whose current or preceding calendar year sales into California exceeded $100,000, or who made sales into California in two hundred or more separate transactions, would be subject to California’s registration and use tax collection requirements for sales on or after April 1, 2019.
In April of 2019, the CDTFA announced that, as a result of Assembly Bill No. (AB) 147 (Stats. 2019, ch. 5), the use tax registration and collection threshold had changed from the “$100,000 or 200 transactions” rule established by the Wayfair decision; to sales into California exceeding $500,000, with the transaction count test being dropped altogether. Further, AB 147 clarified that the “greater than $500,000 into the state” threshold applied to all components of the tax rate including local and district taxes. The new AB 147 rules applied only to sales on or after April 1, 2019; and to retailers selling for delivery into California via the Internet, mail-order, telephone, or any other method.
Independent of the Wayfair decision and AB 147, the Board of Equalization (predecessor to the CDTFA with respect to sales and use tax administration) for several years had administratively concluded that an out-of-state retailer with sales from inventory in a warehouse located in California would either be deemed to have established nexus in California, or would be considered having a physical location in California. The former argument would require use tax registration and collection, while the latter argument would require a seller’s permit and collection of sales taxes. It appeared that district staff favored the use tax position, while the Legal Department leaned toward the sales tax view. Either way, taxpayers discovered by the Board, and later the CDTFA, whose only connection to California was sales from inventory located in a fulfillment center in California, or warehouse in California handling order processing, found themselves liable for back taxes and ongoing filing obligations.
Relief Under Senate Bill (SB) 92 (Stats. 2019, ch. 34)
AB 92 moves the effective date of the district use tax collection requirements from April 1, 2019 to April 25, 2019. This was done to eliminate the retroactive effect caused by AB 147 having an operative date of April 1, 2019 but not being signed into law until April 25, 2019. It does NOT change the effective date for the state and local components of the tax rate; that date remains at April 1, 2019. The second, and more significant relief offered by SB 92 concerns sales made by a “qualifying retailer” for periods prior to April 1, 2016, and potential penalties with respect to sales made for the period April 1, 2016 through March 31, 2019.
Effective June 27, 2019, you are a “qualifying retailer” under the new Revenue and Taxation Code section 6487.07 if you meet all of the following conditions:
- You did not register with the CDTFA under the Sales and Use Tax Law prior to December 1, 2018. If you registered before that date, you were presumed not to be responding to CDTFA’s letter (“FBA letter”) addressed to potential taxpayers using in-state fulfillment centers. Example: retailers participating in Amazon’s FBA program.
- You did not file sales or use tax returns or make sales or use tax payments prior to being contacted by the CDTFA. The intent is to provide relief to those taxpayers who responded to the FBA letter sent by CDTFA.
- You voluntarily register with the CDTFA, and by September 25, 2019, file completed tax returns for all tax reporting periods for which a determination may be issued under section 6487.07 (that is, for periods on and after April 1, 2016), and either
- Pay the tax due in full, or
- Apply for a payment plan, but only if the final payment under the plan is paid no later than December 31st, 2021 (qualifying installment payment)
- You are, or were, engaged in business in this state solely because you used a marketplace facilitator (as defined in section 6041) to facilitate sales for delivery in this state and the marketplace facilitator stored your inventory in this state.
A “qualifying retailer” will not be assessed tax by the CDTFA with respect to sales made prior to April 1, 2016 and will be relieved of penalties with respect to sales made for the period April 1, 2016 to March 31, 2019.
Qualifying retailers who reported and paid tax on sales made prior to April 1, 2016, and did not collect tax on those sales, should file refund claims for any payments made. Taxpayers should note that eligibility for refunds for these periods has technically expired under the statute of limitations, and that CDTFA has not given any indication as to how they will respond to refund claims under this section.
Reminder – Remote Sellers May be Subject to California’s State, Local, and District Use Taxes as of April 1, 2019
The California Department of Tax and Fee Administration (CDTFA) has published a new on‑line guide to assist businesses in learning more about how the Wayfair decision expands use tax collection requirements for retailers: http://www.cdtfa.ca.gov/industry/wayfair.htm
Meanwhile, the Legislature sent a bill to the Governor that would modify post-Wayfair use tax collection requirements. Assembly Bill 147, enrolled on April 9th, would specify that on and after April 1, 2019, a retailer engaged in business in California includes any retailer that, in the preceding calendar year or the current calendar year, has total combined sales of tangible personal property for delivery in this state by the retailer and all persons related to the retailer that exceed $500,000.
The bill would allow the department to grant relief to certain retailers engaged in business in this state for specified interest or penalties imposed on use tax liabilities due and payable for tax reporting periods beginning April 1, 2019 and ending December 31, 2022. It would also eliminate separate tests for state, local, and districts’ tax collection responsibilities. You can follow this bill at:
Questions? Contact us at: email@example.com
News Flash! If your company has a new California sales tax obligation as of April 1, 2019, we can help! Not sure if you have an obligation to register in California? We can help with that, too. It’s not too late! Our team specializes in Compliance and can help your company get registered and file your new California sales tax return. We can also help with determining the taxability of your company’s products and services, training your Tax and A/P teams on the proper treatment of sales and use tax, Voluntary Disclosure Agreements, and more! Reach out to us at firstname.lastname@example.org to learn more.
While this decision allows for South Dakota law to stand, there remains many unknowns as to whether South Dakota and other states will apply their economic nexus standards retroactively or whether they will provide a time frame for prospective registration, or even refine existing rules to become more stringent on the application of the law. The high court’s decision simply validates that the precedence set forth by Quill no longer applies, opening the door for taxable nexus statutes creating an economic footprint instead of a physical presence standard for businesses to follow.
Thompson Tax & Associates, LLC as your trusted tax advisor can assist your company through this material change in this sales and use tax standard that prevailed for so many years.