National Judicial Update & Discussion of State Tax Issues, Cases And
Total Page:16
File Type:pdf, Size:1020Kb
National Judicial Update & Discussion of State Tax Issues, Cases and Policy Trends– Including Wayfair COST California and Pacific Southwest Regional State Tax Seminar November 28, 2018 Los Angeles, California Pat Reynolds, COST Annie Huang, Pillsbury Winthrop Shaw Pittman LLP Jeffrey Vesely, Pillsbury Winthrop Shaw Pittman LLP Agenda . Business Tax Burdens . Sales Tax Collection after Wayfair? . Corporate Income Tax Issues and Trends 2 Business Tax Burdens 3 What Do Businesses Pay? • Businesses paid more than $738 Billion in U.S. state and local taxes in FY 2017, an increase of 2% from FY 2016 • How Much Do Businesses Contribute to State and Local Revenues? • U.S. Average for FY2017: 43.7% of all tax revenues • Remarkably, the business share of SALT nationally has been within 2% of 45% since 2000 • Moreover, C Corporations on average pay about three-fifths more in income tax than pass through businesses Sources: COST/EY Study, Total State and Local Business Taxes: State-By-State Estimates for Fiscal Year 2017, November 2018; COST/PWC Study, Corporate and Pass-Through Business State Income Tax Burdens, October, 2017 4 Composition of State and Local Business Taxes, By Type, FY2017 Washington 26% 26% 17% 19% 6% 7% Oregon 38% 15% 10% 13% 10% 15% Montana 51% 12% 6% 5% 7% 18% Idaho 36% 20% 12% 8% 6% 10% 9% California 32% 19% 12% 11% 6% 10% 11% US 39% 21% 12% 9% 5% 5% 8% Property Tax Sales Tax Excise Tax Corporate Income Tax Unemployment Insurance Tax Individual Income Tax on Pass-Through Income License and Other Taxes 5 How many states have returned to pre-Great Recession levels of revenue? A. 34 B. 19 C. 39 D. 25 E. 42 6 Sales Tax Collection after Wayfair 7 National Bellas Hess to Wayfair Justice Kennedy calls for reconsideration of Quill in DMA North Dakota Cent. Code sec. 57-40.2- 07 goes into effect--challenging 3/3/2015 physical-presence requirement 7/1/1987 Court grants cert in Wayfair 1/12/2018 Quill upholds physical-presence requirement for nexus 6/1/1992 Court overturns Quill physical- Advisory Commission on Electronic National Bellas Hess imposes physical- presence test in Commerce (ACEC) recognizes need for presence requirement for nexus Wayfair reform 6/1/1967 2/1/2000 6/21/2018 1967 1973 1979 1985 1991 1997 2003 2009 2015 2020 1/2/1973 Various federal legislative proposals introduced 7/1/2018 1/1/2000 Streamlined Sales and Use Tax Agreement 7/11/2018 8 What are US sales-and-use tax nexus creating activities? US State sales and use tax nexus States wanted to change ‘physical is not based upon Permanent presence standard’ and started to Establishment (PE) principles or pursue remote sellers in various treaties. Previously nexus can be ways: created in various ways: • Affiliate or agency nexus; volunteers, • In–state employees agents, independent contractors • Sporadic employee visits • Click–through nexus (e.g. NY) • Attending trade shows and seminars • Internet nexus through “cookie” or electronic nexus presence • In–state deliveries made by one’s own truck • Notification and reporting statutes for remote sellers with steep penalties for • Physical presence of property non-compliance (e.g. CO) even temporality • Incidental ownership of property • Voluntary registration or incorporation 9 Information Reporting—“Use” Tax Approaches Colorado model • 2012 statute requires “non–collecting” retailers to inform customers and state that they may have a use tax obligation for taxable purchases. • The law specified that any out–of–state retailer that does not collect the sales tax on taxable purchases that have gross revenues in excess of $100,000 in the state. Penalties • Penalties for failing to comply and report vary between states, but are generally high and punitive. As of September 30th, there are approximately 13 states with some variation of use tax notification statutes. 10 Use Tax Notification Requirements & Reporting (as of September 30, 2018) State Effective Date Threshold Alabama 7/1/2017 $250,000 Colorado 7/1/2017 $100,000 Connecticut* 7/1/2017 N/A Georgia 1/1/2019 $250,000 or 200 transactions Iowa 7/1/2019 $100,000 Kentucky 7/1/2013 $100,000 Louisiana 7/1/2017 $100,000 Oklahoma** 6/9/2010,11/1/2016 & 4/10/2018 $100,000/$10,000 Pennsylvania*** 4/1/2018 & 4/1/2019 $10,000 Rhode Island 8/17/2017 None South Dakota 7/1/2011 $100,000 Vermont 7/1/2017 $100,000 Washington (retail sales) 1/1/2018 $10,000 *The Connecticut Department of Revenue Services began mailing notices to several unregistered online retailers demanding electronic sales records for all individual sales made to customers with Connecticut addresses over the past 3 years. On July 7, 2017, Governor Daniel Malloy signed Public Act No. 17-147 into law, which gives the Commissioner authority to impose a civil penalty of $500 per day for failing to comply with these type of information requests, effective July 1, 2017 **Oklahoma has had three different use tax notification requirement statutes. The first had a $100,000 threshold. The most recent version has a threshold of $10,000. ***Pennsylvania effective date of 4/1/18 applies to sales of products and services other than digital products and services. Effective date of 4/1/2019 applies to sales of digital products and relates services. The above list of states that have currently enacted use tax notice and/or reporting provisions based on the existence of a certain amount of in-state sales and/or transactions is intended for informational purposes only. Taxpayers should consult with their tax advisors as to each state’s effective date and other requirements relative to their specific business activity and potential penalties for non- compliance. 11 The Wayfair Decision Holding: June 21, 2018 In a 5-4 Decision, Justice Kennedy (joined by Thomas, Gorsuch, Ginsburg, Alito) held that: • Quill and National Bellas Hess are overruled • The physical presence rule is unsound, is an incorrect interpretation of the Commerce Clause, and restricts the states’ authority to “collect taxes and perform critical public functions” Majority concluded that the following features of South Dakota’s law minimized the burdens on interstate commerce: • Included a transactional safe harbor • Did not apply retroactively • South Dakota was a full member of the Streamlined Sales and Use Tax Agreement (SSUTA) 12 Transactional Safe Harbor South Dakota’s transaction safe-harbor of an annual threshold of 200 sales or $100,000 in sales was sufficient • States argued that the first sale triggered the collection responsibility and Justice Kennedy did not respond • Should the threshold be the same for California as South Dakota? • Can states require small businesses making few sales to collect in all cases? 13 Retroactivity Not really dealt with, despite emphasis in oral argument South Dakota law foreclosed retroactive application Although generally speaking a determination by the U.S. Supreme Court about the meaning of the U.S. Constitution can be applied retroactively, consider whether such an application in a particular set of facts (and considering prior positions of the state) could violate Due Process as a retroactive application of a state statute (See United States v. Carlton, 512 U.S. 26 (1994)) 14 State Enforcement Dates/Thresholds Pre-Wayfair October 1, 2018 November 1, 2018 RI (8/17/2017) AL $250k NC $100k/200 MA (10/1/2017) IL $100k/200 SC $100k OH (1/1/2018) IN $100k/200 SD $100k/200 WA (1/1/2018) KY $100k/200 PA (3/1/2018) MI $100k/200 December 1, 2018 MN $100k/100 CO $100k/200 July 1, 2018 ND $100k/200 CT $250k/200 HI $100k/200 WA $100k/200 ME $100k/200 January 1, 2019 WI $100k/200 OK $10K GA $250/200 VT $100k/200 IA $100k/200 TX- Proposed Rule Eff 1/1/2019, collections to LA $100k/200 September 1, 2018 begin 10/1/2019 NE $100k/200 MS $250k UT $100k/200 15 State Implementation Details: Thresholds Issues surrounding measurement period (prior year sales or current year sales) Does tax collection apply to the first $100,000, or only after nexus is established? Impact of sales fluctuation on nexus determination Application of thresholds to local taxing jurisdictions Issues surrounding use of “taxable sales” vs. all sales to determine nexus threshold • Wholesale sales • Exempt sales (product, use, or entity based) Issues surrounding transaction counts • By invoice • By item 16 State Implementation Details: Thresholds Illinois Emergency Administrative Rule-Section 150.803, 9/11/18 • For 2018, prior calendar year, quarterly test thereafter • Nexus applies on an annual basis, measured each quarter for prior 12 months • Have option to de-register if threshold not met, but must test quarterly • Resale, titled property and occasional sales not included in threshold • All other sales included Mississippi Sales and Use Tax Guidance for Online Sellers-8/6/18 • Specifies that wholesale sales must be included States have noted in public forums that zero and low dollar returns are not desired, but are reluctant to set that as policy Could see increase in “annual filings” 17 Will Congress Step in? What would Federal Legislation look like? July 24 Judiciary Committee Hearing Discussed a moratorium S. 976 — Marketplace Fairness Act H.R. 2193—Remote Transaction Parity Act Online Sales Simplification Act (hybrid origin-based system) Implications for Income and other Business Activity Taxes? (More urgency for BATSA now that Quill is gone) 18 What’s next for the states? What happens with SSUTA? Will the “big states” join SSUTA? Will the MTC get involved? New rules for all sellers, not just remote sellers Future litigation? Marketplace collection requirement? How does this impact inbound sales? Will Wayfair have an impact on the nexus standard for corporate income and other business activity taxes? 19 Wayfair: Impact on Income Taxes Because Quill was a sales tax case, many states had enacted economic (i.e., non-physical) nexus standards for income tax purposes.