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South Dakota versus Wayfair

Does your company have a multistate sales tax obligation?

The 2018 Supreme Court South Dakota v. Wayfair decision dramatically shifted the sales tax landscape in the United States. Companies of all sizes are facing sales tax compliance obligations that are more complex than ever. Under “economic nexus” rules, a company may need to register, collect sales tax, and file a state sales tax return if it passes a specified threshold, regardless of whether the company has a physical presence like storefronts, warehouses, or sales personnel in the state. So how do you determine if you have a sales tax obligation in multiple states?

Understanding economic nexus thresholds post-Wayfair

Many states have adopted the economic nexus threshold used in South Dakota: $100,000 in gross receipts or 200 transactions in-state. This is the nexus standard that the Supreme Court considered in the Wayfair case. However, some states have imposed a higher standard, and some have chosen not to use a transaction threshold. Companies that pass this nexus threshold within a set amount of time have to register with the state and begin collecting sales or use tax and filing returns.

Even though many states use the same threshold for determining economic nexus, it is really just a surface-level similarity because states differ in how they actually measure these thresholds. Some use all of a company’s gross receipts; some look just at gross receipts from taxable transactions. Some include sales for resale, while others do not. Some measure on a calendar-year basis, while others use a rolling twelve-month measuring period. See our map of economic nexus laws by state for more information.

The impact of South Dakota v. Wayfair on your business’s sales tax obligations

Many large companies are already registered and collecting sales tax in every state, so the effect of these changing policies is mainly on the procurement side. For procurement, companies must ensure that the sales tax they’re paying on purchases is calculated correctly and that they’re accruing use tax when necessary.

But for small or mid-size companies and regional companies that may have a restricted physical footprint, Wayfair potentially has a much bigger impact. This is especially true for companies that are expanding into e-commerce and selling online to all 50 states. For these companies, their sales tax compliance obligation may have changed practically overnight from filing returns in one or two states to filing 40+ different state returns, in addition to monitoring rules and rates in potentially thousands of local jurisdictions. Companies now need to be thinking about where their customers are located rather than where their business assets are located. The last thing any company wants is for sales tax complexity to limit the ability to enter new markets and sell products and services online.

What transactions are subjected to sales tax?

Apart from looking at where customers are located and where the company has nexus, what a company is selling can also impact how complex its sales tax obligation will be. Most of our sales tax laws grew out of a framework of manufacturing and selling tangible personal property at retail, and they have struggled to keep up with the service and digital economy. Companies that sell digital goods and services, especially if they bundle different types of products and services together, will confront challenging questions around taxability. In states that measure nexus thresholds based on taxable transactions, taxability decisions could affect nexus as well.

States have also been aggressively pursuing marketplace facilitator policies, under which digital marketplaces like Amazon or eBay are responsible for collecting tax on third-party sales facilitated through their platforms. These are new policies that are still being worked out, and there are a lot of open questions. Sales tax obligations for multichannel sellers and marketplace facilitators can get complex quite quickly and are rapidly changing.

What’s next for corporate sales tax departments?

Companies need to keep track of where they have an obligation to collect sales tax, where a marketplace facilitator might be collecting on their behalf, product taxability, transaction records, customer exemption certificates, and whether there are any additional filing or documentation requirements to ensure that a marketplace facilitator is not over or under-collecting tax. Companies also need to ensure that they can support these tax collection and reporting decisions potentially years later.

How can Thomson Reuters ONESOURCE help you manage complex sales tax obligations in multiple states?

If you are a corporate tax professional dealing with indirect taxes such as sales tax, use tax, VAT, and GST, learn how ONESOURCE Determination can help you get tax right the first time, every time.

Want to learn more about how to handle a complex sales tax obligation in a post-Wayfair world? Watch our webinar, “Simplifying Sales Tax Complexity: Making the Business Case for Automation.”

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