Tax Alert: U.S. Supreme Court Rules on Wayfair Case

On June 21, 2018, the U.S. Supreme Court issued its decision in South Dakota v. Wayfair, Inc., the most recent and direct challenge by a state to the physical presence nexus standard, adopted/continued in Quill v. North Dakota over 25 years ago.

Their decision eliminated the physical presence requirement for sales tax nexus purposes.  Specifically, the South Dakota law states that remote sellers (those without any physical presence in the state) who have either more than $100,000 of in-state taxable sales of products/services annually or have consummated 200 or more separate transactions annually are required to register with the state and collect and remit sales taxes to South Dakota on those transactions.

It is important to note that the Court did not formally hold that the thresholds in South Dakota’s law are the new standard, or even that there is any standard. The ruling, simply, was that physical presence in a given state is no longer required for a state to require sellers of property and services within that state to collect and remit sales taxes.

Several states, in anticipation of the Wayfair case, had previously adopted economic nexus provisions for sales and use taxes and there are others whose laws are contingent on the decision in the Wayfair case. Some states also had cases pending in their respective courts waiting for the Supreme Court’s ruling to come down.

It is important to remember that the Supreme Court remanded the case back to the lower court for a decision as to the impact of the Commerce Clause (for “undue burden”, etc.) of the Constitution. It is therefore possible that the S.D. law will be modified pending the outcome of that case. If the lower Court finds in favor of S.D., then its statute will likely become the standard for other states to follow. A similar result will occur (although without the protection of a court decision ratifying the Commerce Clause provisions thereby subjecting them to future litigation if another taxpayer decides to challenge them) if the parties settle prior to litigation.

So, what’s next? Good question. It appears that states with laws requiring some threshold level of economic (but not physical) contact before they assert sales tax nexus for a remote seller would not be in violation of the Wayfair decision. That said, there were other provisions in the South Dakota law, namely no retroactive liability and compliance with the Streamlined Sales and Use Tax Agreement which will need to be evaluated on a state-by-state basis.

Accordingly, each state (and locality for that matter) MAY decide to come up with their own economic nexus thresholds, which may or may not comport with the S.D. law. If different, this would potentially open the state to future challenges on the Commerce Clause issue.

As a result of the Wayfair decision, many states are re-evaluating their nexus statutes and Congress has been discussing responses as well.

For businesses no longer protected from sales tax nexus due to this decision, the following are some questions that will need to ultimately be addressed in all the states they sell into, according to the statutes passed (or to be passed) in those states:

Do we meet any of the threshold tests?

Are our services or products taxable?

Are we required to register in each state we sell into?

What are the correct tax rates?

Are there local taxes in addition to state level taxes?

How often must a return be filed and what are the available methods for filing?

When will the first sales taxes be due?

How complete is our system for tracking exemption certificates?

Do we need to purchase a software solution to handle this and, if so, how much will that cost?

Do we need to hire more staff to accommodate this increase in our compliance obligation?

Might we have to collect and remit sales taxes in a state that does not have economic nexus standards currently in place?

Can states make sales tax collection retroactive? Likely not, but one never knows.

As you can see, this issue is very much unsettled at the moment. Following are some actions that businesses should take sooner rather than later:

  • Understand the states and localities that you currently sell into. Make sure that you have some reliable method of capturing the amount of sales and the number of transactions into each state and locality. Shortly, ignorance will not be an excuse for non-compliance in states where you may not have previously been required to file.
  • If your products are for re-sale, be sure that you have updated your Resale Certificates, and that you have a process for doing so periodically.
  • If you have physical nexus in a state and have not been filing there, immediately evaluate the costs of compliance versus continued no compliance. Voluntary Disclosure Agreements may prevent penalties in some cases, and prevent unlimited look back, but you have to go to the state. Once they find you, it’s too late. And states are all on high alert for non-compliance.
  • Monitor the states into which you sell for changes to their nexus legislation.
  • For states where you are currently filing, be sure you actually ARE collecting the correct amount of tax when and where you should, and remitting it on a timely basis.

As always, if you would like to discuss this further, please contact us.

 

Supreme Court of the United States building in Washington, DC, SCOTUS has issued decision in South Dakota v. Wayfair

Disclaimer

Tax Alert: Responding to South Dakota v. Wayfair

The U.S. Supreme Court has issued its highly anticipated decision in South Dakota v. Wayfair, overruling Quill’s physical presence sales tax nexus standard. This decision will have significant implications for almost all industries, but especially consumer products (retailers) and industrial products.

With a new sales tax nexus standard established, more states will require all retailers that sell within their borders to collect that state’s sales tax. About a dozen states have already addressed economic nexus laws or regulations.

The Wayfair case moved through the court system at a blistering pace. Even with a decision from the nation’s highest court, very little is settled. Under the U.S. Constitution, Congress may have the authority to implement a remote seller solution or codify the physical presence standard into federal law. Whether Congress takes up the issue is a “wait-and-see” proposition.

However, Wayfair has created many more questions than answers. Adapting your business to the new sales and use tax landscape will take time, even though you may need to react quickly.

To learn more, please read RSM’s alert, U.S. Supreme Court kills Quill physical presence or contact us directly to discuss how Wayfair may affect your business.

 

Supreme Court of the United States building in Washington, DC, SCOTUS has issued decision in South Dakota v. Wayfair

Source: RSM US LLP
Used with permission as a member of the RSM US Alliance
https://rsmus.com/what-we-do/services/tax/state-and-local-tax/sales-and-use-tax/u-s–supreme-court-kills-quill-physical-presence.html

Disclaimer

At Insero, we make it our business to stay abreast of the latest trends and technical updates in accounting, tax, and audit; and we understand how important timely updates are to our clients. As a member of the RSM US Alliance, we also have the benefit of access to the resources and subject matter experts of RSM US LLP (formerly known as McGladrey LLP). This includes regular updates on the latest federal, state, and international tax news. We hope that you find these informative and useful, and invite you to reach out to us if you have any questions.

Employee Benefits Update: February/March 2017

This issue’s topics include:

Get your fiduciary house in order
DOL’s newest regulations require plan sponsor action

The majority of the U.S. Department of Labor’s complex regulations mandating fiduciary status for individuals dealing with retirement investment decision-making involve investment advisors. But the regulations, which are scheduled to take effect on April 10, 2017, also require plan sponsors to take certain steps. Remember, plan sponsors are always the fiduciary, and the regulations expand the definition of fiduciary status. A sidebar discusses the distinction between investment education and investment recommendations or advice.

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Who’s to blame?
Court equitably apportions fiduciary misdeeds

When a fiduciary breach occurs, some fiduciaries may be more culpable than others. And when that’s the case, the court can order those parties to indemnify other fiduciaries who were, despite their technical status as fiduciaries, without blame. This article summarizes a recent case of the U.S. Court of Appeals for the Seventh Circuit where the court equitably apportioned relief in a fiduciary duty setting.

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Hardship withdrawal programs require strict administration

While not required, most 401(k) plans offer a hardship withdrawal option. The IRS recently updated its guidance on how plan sponsors can remedy errors in the administration of hardship withdrawals. This article highlights the basics of hardship withdrawals and how to correct mistakes when administering a hardship withdrawal program.

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2016 vs. 2017 retirement plan limits

This chart contains updated retirement plan limits for 2017.

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Compliance alert

This feature lists a few key tax reporting deadlines for February through April.

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact me directly.

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Federal Tax Weekly: December 10, 2015

This issue’s topics include:

  • Obama Signs Highway Bill With Tax Offsets; Negotiations Continue On Omnibus And Extenders
  • Chief Counsel Reaffirms Prior Guidance On Computer Costs: Some Costs Must Be Capitalized; Others Deductible
  • IRS Clarifies Proposed Regs’ Substantiation Option For Charitable Contributions
  • Damages And Legal Expenses Paid By Corporation’s Managing Shareholder To Satisfy Judgment Were Deductible Business Expenses
  • IRS Extends Time Limits For Issuing Tribal Economic Development Bonds

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact us directly.

Federal Tax Weekly: December 3, 2015

This issue’s topics include:

  • IRS Increases Tangible Property Expensing Threshold For Taxpayers Without AFS
  • Wolters Kluwer Computes 2016 Luxury Vehicle Limits, Fringe Benefit Caps
  • Chief Counsel Reviews When Employers May Exclude From Income Cost Of Health Insurance Coverage
  • IRS Launches Form W-2 Verification Code Pilot Program For 2016 Filing Season
  • Chief Counsel Determines Civil Tax Issues For Taxpayer Convicted Of Filing False Or Fraudulent Returns

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact us directly.

Federal Tax Weekly: November 19, 2015

This issue’s topics include:

  • Agencies Finalize Regs for ACA’s Market Reforms
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  • IRS Makes Progress in Curbing Business Tax Identity Theft
  • Generic Drug Manufacturer Required to Capitalize Legal Fees Incurred to Obtain FDA Approval
  • IRS Reminds Taxpayers of Advantages of Health FSAs

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Federal Tax Weekly: November 12, 2015

This issue’s topics include:

  • MyRA Starter Roth IRA Now Available Nationwide
  • IRS Releases Revised Form 1042 And Instructions
  • Audits of Individual Tax Returns Drop Again
  • IRS Extends Safe Harbors for Distressed Homeowners
  • Highway Bill Goes to Conference; Extenders Could Move

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact us directly.

Federal Tax Weekly: November 5, 2015

This issue’s topics include:

  • Obama Signs Budget Agreement Repealing TERFA Audit Rules
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  • IRS Issues Guidance on Private Activity Bond Restrictions
  • Real Estate Developer Cannot Use Home Construction Contract Method to Defer Income
  • Consts of Internet Domain Names Are Code Sec. 197 Intangibles

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact us directly.

Federal Tax Weekly: October 22, 2015

This issue’s topics include:

  • IRS Updates Guide For Safeguarding Taxpayer Data
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  • IRS’s Implementation Of FATCA Improving, But More Work Is Needed

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact us directly.

Federal Tax Weekly: October 15, 2015

This issue’s topics include:

  • PACE Act Amends ACA Definition Of Small Group Market
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  • Disaster Relief Available For South Carolina Flooding
  • Debtor Payments On Serial Loans Trigger Reporting
  • OECD Releases Final BEPS Package

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As always, we hope you enjoy this edition of our newsletter and we look forward to receiving your feedback. Should you have any questions regarding the information contained in the attached materials or our service offerings, please feel free to contact us directly.