CLIENT PAGE
Mitigating Exposure
How to navigate the sales tax economic nexus.
By David Brennan
Sales tax in the U.S. is more complicated than in recent years and you
may not even realize it. You now have the possibility of needing to
collect sales tax in every taxing jurisdiction across the country—and
you may already be accruing liabilities. For many companies, simply
registering and collecting is dangerous because the company may already
have sales tax exposure. This is on top of any potential liability for
other state tax types you may be subject to. Are you taking this
exposure seriously?
Changes to Sales Tax
Collection Requirements
A 2018 U.S. Supreme Court decision, South Dakota v. Wayfair,
has dramatically changed sales tax law across the country. Specifically,
this landmark case allows states to require you to collect sales tax
even when not physically present in the state. Called “economic nexus,”
it is based on the amount of sales or number of transactions into a
state. While numerous states have a threshold of $100,000 in sales or
200 transactions into the state, others have differing thresholds.
Meanwhile, states without such thresholds are quickly jumping on the
bandwagon.
Worse, every county and municipality nationwide can require sales tax
to be collected. A separate application may be needed for each county
and municipality. You also must determine whether your sales are taxable
in each of these places. If so, you must figure what exemptions may
apply to your sales and how to properly document the exemptions.
States are already sending letters to businesses informing them of
potential collection requirements. In some cases, businesses must prove
they do not need to register. Failure to respond may result in an
assumption of needing to register and potential penalties.
Carefully Navigating Post-Wayfair
Challenges
If you make sales across state lines, you may have exposure because of
Wayfair. There are several things you can do to mitigate your
exposure.
Among other things, you need to know where inventory may be kept
(e.g., Amazon’s Fulfillment by Amazon, or FBA, services stores inventory
nationwide). Next, sort your sales and number of transactions by state
by year. Cross-reference these numbers with the economic nexus
thresholds nationwide to determine potential exposure.
Once you have identified the states with exposure, you must determine
whether to register and how to do so with the least exposure. Should you
decide to delay registering, the delay may be costly as you could have
been collecting sales tax from customers instead of paying the sales tax
out-of-pocket. Furthermore, the registration application could reveal
past exposure for you.
As a practical point, the registration answer may not necessarily be to
register everywhere. While registering may immediately resolve the sales
tax collection requirement, there are two issues that will come up.
First, registering for sales tax everywhere could lead to registration
requirements for uncontemplated tax types. For instance, if you register
for sales tax, you may also have an income tax or franchise tax
registration requirement. Second, for every tax registration made, there
is the potential of a future audit. In other words, registering
everywhere could lead to a full audit of your business every two months.
Knowing the pitfalls can ensure you are headed in the
right direction with minimal exposure. Otherwise, it is only a matter of
time before you are contacted on your sales tax exposure by the
government. Better to resolve it now instead of having the government
help itself to your pocketbook.TBJ
The author would like to thank James Sutton for his contributions
to the article.
DAVID BRENNAN
is a Florida attorney with Moffa, Sutton & Donnini, where his
practice primarily focuses on sales and use tax controversy. He was a
senior attorney with the Florida Department of Revenue from 2014 to
2016. For more information, go to floridasalestax.com.
