Assoc ociation ons, S Sal ales es T Tax, a and the W e Wayfair C Case se PRESENTED BY COHNREZNICK, LLP MAY 22, 2019
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ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE ◦ Presented by CohnReznick, LLP Janene Mitchell, CPA Wendy Zee Galex, JD, LLM Senior Manager, Not-For-Profit and Education Practice Manager, State & Local Tax Services Janene.mitchell@cohnreznick.com Wendy.galex@cohnreznick.com 3
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE AGENDA • Sales & Use Tax Considerations • NEXUS for Sales & Use Tax – Wayfair • Effects on Financial Reporting • Questions & Answers 4
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE SALES AND ND U USE TAX C X CON ONSID IDERATIO IONS COMMON MISCONCEPTIONS Misconception #1 “I am a Not-For-Profit, therefore I do not need to pay sales tax on my purchases!” Misconception #2 “I am a Not-For-Profit therefore, I do not need to collect sales tax on my sales!” Misconception #3 “I don’t have offices in other states and only sell on-line, so not applicable!” Misconception #4 “Exemption status is automatically granted at the State level because it was granted at the Federal level!” 5
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE SALES AND ND U USE TAX C X CON ONSID IDERATIO IONS SALES AND USE TAX Sales Tax: • A tax which is levied by a State on the retail sale of tangible personal property and enumerated services Use Tax: • Complimentary to sales tax • The tax which a purchaser must accrue and remit to the State upon the retail purchase of taxable tangible personal property or services when the retailer did not collect the sales tax due 6
ASSO SOCIATI TIONS, SA SALE LES T S TAX X & & THE W WAYFAIR CA CASE SAL ALES A AND ND U USE T TAX C CONS NSIDERATIONS NOT-FOR-PROFIT PURCHASES • A qualified Not-for-Profit can make qualified exempt purchases • Non-qualified Not-for-Profit Organizations/Trade Associations are required to either pay sales tax or self-assess use tax on taxable retail transactions 7
ASSO SOCIATI TIONS, SA SALE LES T S TAX X & & THE W WAYFAIR CA CASE NEXUS F FOR SA SALE LES S & US & USE T TAX - WAYFAI AIR WHAT IS NEXUS? • Generally, the minimum contact(s) that an entity must have with a state for the entity to be subject to the state’s tax jurisdiction. • The United States Constitution imposes two significant restrictions on a state's ability to establish nexus with an out of state company and they are the following: Due process clause = minimum connection Commerce clause = substantial presence 8
ASSO SOCIATI TIONS, SA SALE LES T S TAX X & & THE W WAYFAIR CA CASE NEXUS F FOR SA SALE LES S & US & USE T TAX - WAYFAI AIR HISTORICAL NEXUS Prior to Wayfair , nexus was established by the following methods: • Physical Presence • Agency / Affiliate Nexus • Click-through Nexus • Marketplace Facilitator 9
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE NEXUS S FOR S SAL ALES & S & USE T TAX AX - WAY AYFAIR South Dakota v. Wayfair, Inc. et. al. On May 1, 2016, South Dakota enacted economic nexus provisions for sales and use tax purposes. The State looked to establish Nexus based on economic activity not just physical presence. In South Dakota remote sellers are subject to the provisions if they meet one of two thresholds in either the current or previous calendar year: Sales threshold exceed $100,000 in South Dakota; or • 200+ sales transactions delivered into South Dakota • 10
ASSO SOCIATI TIONS, SA SALE LES T S TAX X & & THE W WAYFAIR CA CASE NEXUS F FOR SA SALE LES S & US & USE T TAX - WAYFAI AIR South Dakota v. Wayfair, Inc. et. al. U.S. Supreme Court Struck Down the Physical Presence Nexus Standard On June 21, 2018, the U.S. Supreme Court struck down the phy sical presence nexus standard established in Quill Corp. v. North Dakota and Natl. Bellas Hess. v. Illinois Dept. of Rev. – a standard which had been in place for over 50 years The majority opinion, written by Justice Kennedy in a 5 – 4 split, determined that the physical- presence rule of Quill was "unsound and incorrect" and overruled it. Other notable comments made by the majority: Quill is flawed on its own terms • Quill is a judicially created tax shelter for businesses • Interpretation of the Commerce Clause must conform to economic realties and dramatic • technological and social changes 11
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE NEXUS S FOR S SAL ALES & S & USE T TAX AX - WAY AYFAIR SO WHAT DOES THIS MEAN? The keys to the U.S. Supreme Court upholding South Dakota’s economic nexus statute were the following: The new law now requires a remote seller to collect the tax only if the remote seller does a • considerable amount of business in the State – that is, if the remote seller meets the economic thresholds that are being established on a state by state basis. The new law is not retroactive; however, note a remote seller could have historical nexus • through one of the traditional methods (i.e., physical presence, agency, etc.). For those states which have yet to enact an economic threshold provision, the prior standard • (i.e., physical presence, agency, etc.) is still the active standard! 12
ASSO SOCIATI TIONS, SA SALE LES T S TAX X & & THE W WAYFAIR CA CASE NEXUS F S FOR SA SALE LES & S & US USE T TAX X - WAYFAI AIR ECONOMIC THRESHOLD GENERALLY The 100/200 Rule… Since the Wayfair Decision was rendered, many states have been enacting legislation similar to the rule promulgated by South Dakota Gross sales in excess of $100,000 during the current or prior calendar year; or • 200+ sales transactions delivered into the State during the current or prior calendar year • 13
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE NEXUS S FOR S SAL ALES & S & USE T TAX AX - WAY AYFAIR SIGNIFICANT IMPACT • States can assess tax on the seller, including a Not-For-Profit (“NFP”) • Noncompliance can cost the NFP significant tax, penalties and interest • The average sales tax rate is 8% and if not collected properly can turn a profitable gross margin into a negative gross margin • Sales tax should be borne by the customer and not the seller • Tax burden to customers could adversely effect future sales • Administrative burden to NFP could adversely impact operations 14
ASSOCIATIONS, S, S SAL ALES T S TAX AX & & T THE W WAYFAI AIR CAS ASE NEXUS S FOR S SAL ALES & S & USE T TAX AX - WAY AYFAIR SALES BY NOT-FOR-PROFITS WHICH MAY BE SUBJECT TO SALES TAX 1. Tangible goods – i.e., clothing, tote bags, etc. 2. Access to digital goods / libraries 3. Content / information services 4. Books / periodicals 5. Subscriber / membership agreements 15
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