Practical implications of the Wayfair decision

Editor: Catherine Stanton, CPA

On June 21, 2018, the U.S. Supreme Court decided South Dakota v. Wayfair, Inc.,¹ a case that would significantly change the landscape of sales tax collection as tax practitioners had come to know it. The decision allowed South Dakota to impose its sales tax collection requirements on remote sellers that exceed certain sales or transaction thresholds, without regard to physical presence. As a result, the decision overturns decades of established law, most recently affirmed in the Supreme Court's 1992 decision, Quill Corp. v. North Dakota,² which required vendors to have physical presence in a state before that state could require them to collect and remit sales tax. What follows is a practical guide outlining the implications of the Wayfair decision to assist businesses with coming into and maintaining sales tax compliance in a post-Wayfair world.

Life in a post-Wayfair world

Step 1: Understanding your nexus footprint

Many companies have struggled with the concept of nexus, even before the decision in Wayfair. Over the past decade, the traditional idea that a business must have a physical presence in a state to be required to collect and remit sales tax has gradually eroded. Through the introduction of alternative nexus standards such as clickthrough, affiliate, and marketplace provider nexus provisions, among others, businesses have needed to remain vigilant of their nexus footprint to ensure they were fulfilling all filing obligations.

For businesses that did not previously engage in those nexus analyses, the first step in coming into compliance should be determining the states in which they may have established nexus under one of these pre-Wayfair nexus provisions. While remote-seller nexus (based on sales or transaction thresholds) is the topic of this column, these alternative methods for establishing nexus generally remain in full effect and mean that some businesses may have had nexus even before a state enacted its remote-seller nexus provisions. Unless states repeal these prior nexus standards, businesses will need to address both these preexisting standards and any newly enacted or promulgated remote-seller standards. Therefore, determining a pre-Wayfair nexus footprint is where a business's nexus analysis must start.³

Once a business has determined its pre-Wayfair nexus footprint, it can then begin an analysis of the impact remote-seller provisions will have on its nexus footprint. As of this writing, over 40 states have enacted remote-seller related nexus standards, clearly a majority. Note, however, that while these provisions are referred to collectively, the effective dates, thresholds, and contents of these provisions vary from state to state. Businesses are obligated to track these varying thresholds and effective dates either internally or by working with a tax adviser, since, once a business surpasses a state's threshold, it may have an obligation to collect and remit sales tax and file sales tax returns.

Adding further complexity, some of the currently enacted remote-seller provisions have effective dates that predate the decision in Wayfair and, as such, businesses may have a historical exposure in these states if they have not been complying with these provisions. While many states have explicitly stated that they will not enforce their Wayfair provisions retroactively,⁴ not all states have yet committed to prospective-only enforcement of these provisions.⁵

In determining whether a business has nexus due to a remote-seller provision, the business must confirm the sourcing mechanism for the type of sales it makes in the states in which it does business. For a retail company engaged in the sale of tangible personal property such as clothing, furniture, or other items, this may be a simple enough matter, as many states use destination-based sourcing, attributing the sale to the state in which delivery of the property occurs. However, for other types of sales, such as streaming services, software-as-a-service (SaaS), and others, states have varying rules for assigning the receipts from these sales. Further, determining the "destination" of a sale can be challenging in some instances when the "bill to" and "ship to" addresses are not the same. The thresholds in the remote-seller provisions are based on properly sourced sales figures and/or transaction amounts. Therefore, a company that is not properly sourcing its sales will be unable to determine whether it exceeds these thresholds.

Further complicating matters is the fact that some states' remote-seller provisions base their thresholds on the most recent 12-month period, while other states' remote-seller provisions note that their threshold creates nexus if it is surpassed during the current or prior calendar year. Furthermore, some include wholesale or otherwise nontaxable sales, but others include only taxable sales.

Also note that over the past year and a half, many states have passed "marketplace provider" or "marketplace facilitator" legislation. While this column does not cover this legislation in depth, it is important to be aware of these provisions. Generally, these provisions impose sales tax collection requirements on entities that provide a marketplace, usually online, to sellers to make sales into the state. These bills are targeted at platforms that connect sellers, both large and small alike, with purchasers of products. Many of these sellers may not exceed the remote-seller thresholds by themselves. Consequently, these statutes impose collection requirements on the marketplace providers when the total sales via the marketplace exceed certain specified thresholds. Some statutes also consider the seller to have nexus if its sales via the marketplace combined with its independent sales exceed the thresholds.

These marketplace rules may appear simple conceptually, but being compliant with them can raise myriad complications. Many of these laws are in their infancy, so state guidance is scarce. Possible complications include, but are not limited to:

• What is the definition of a marketplace provider? Does the marketplace provider have to collect payment, or is it enough to simply bring two parties together? If it is the latter, what level of involvement does the marketplace provider have to have?
• What procedures are in place, or what procedures need to be followed, to ensure that the marketplace provider and the marketplace seller do not both remit sales tax on the same sale? Does a marketplace provider need to collect tax if the marketplace seller has nexus in its own right? Can the marketplace provider opt to not collect tax if the marketplace seller has nexus and would prefer to file on its own?
• To what extent is the marketplace provider liable for not collecting on a taxable sale due to incomplete or incorrect information provided by the seller?
• Who is responsible for collecting and maintaining exemption certificates?
• How do marketplace providers properly complete returns if they both sell into the state themselves and facilitate sales? What documentation do they need to maintain for audit purposes?
• Similarly, how do marketplace sellers properly complete returns if they both sell into the state themselves and through a marketplace? What documentation do they need to maintain for audit purposes?

Lastly, adding further complications, some states have notice-and-reporting requirements, although these provisions are generally becoming less common as economic nexus standards and marketplace provider laws are enacted. Generally, notice-and-reporting requirements require businesses to notify their in-state purchasers of their use tax filing and payment obligations, to provide customers with an annual summary of their purchases, and to report this same information to the state annually. There are penalties in some states for failure to follow these rules that must also be considered.

Once a business has completed an analysis of its pre- and post-Wayfair nexus footprint, the business should move on to Step 2.

Step 2: Are your sales taxable?

Even though a business may have nexus with a state, the business may not automatically have a sales tax collection and filing responsibility. The business usually needs to be making taxable sales as well. The following questions should be used to determine if a sale is taxable:

1. Is the property, product, or service specifically listed as being subject to sales tax?

2. If so, does an exemption or exclusion apply?

Generally, a retail sale of tangible personal property is subject to sales tax (unless an exemption applies). However, a retail sale of services is generally subject to the sales tax only if the service is specifically listed as being taxable. State tax bases vary significantly in the taxability of services. For instance, some states, such as Alabama and Colorado, broadly exclude services from sales tax,⁶ whereas other states, such as South Dakota and West Virginia, generally subject all services to sales tax.⁷ All states subject some services to the sales tax.

Further complicating matters, states do not uniformly define "tangible personal property" and "services" in the same manner. For example, approximately half of the states have released authority stating that cloud-hosted software, often referred to as SaaS, is considered tangible personal property for sales tax purposes and therefore is subject to tax. Conversely, the remaining half have reached the opposite conclusion and consider cloud-hosted software a service. Of these states, some have specifically enumerated it as a taxable service.

If it is determined that a business is selling a taxable product or service, a business may need to take additional steps to analyze whether an exemption applies to some or all of its sales. Exemptions from sales tax may be available based on the type of transaction, the item purchased, or the identity of the purchaser. For example, in Pennsylvania:

• Occasional sales are generally exempt from the sales and use tax;⁸
• Retail sales of prescription and nonprescription medicines are exempt from the sales and use tax;⁹ and
• Retail sales to charitable organizations, not-for-profit educational institutions, and religious organizations are generally exempt from the sales and use tax.¹⁰

State exemptions are not universal and vary by state. It is incumbent upon businesses to determine the taxability of their products and/or services in all states in which they source sales.

Step 3: Keeping track of all the pieces

Steps 1 and 2 are technical exercises to determine (1) where a business has a collection responsibility and (2) to what extent its products and services are taxable. At the end of these steps, a business should have a basic understanding of its sales tax responsibilities. Steps 3, 4, and 5 discuss some of the logistics of actually becoming compliant. While the technical exercises deal with complex laws and regulations, as the adage goes, the devil is in the details. Businesses need to focus on the issues below when addressing sales tax collection responsibilities.

First, states require documentation to substantiate most exempt sales.¹¹ One form of documentation that is often required is an "exemption certificate." One of the most common exemption certificates is a resale exemption certificate. Items are generally eligible for a resale exemption when the item purchased will be resold by the purchaser in its present form or as a component of other tangible personal property. To qualify for this exemption, businesses generally must apply for a resale certificate within the state in which they seek to use the exemption, or companies may be able to use a multistate resale exemption form. The seller should collect a resale certificate from the purchaser at the time of the sale as evidence of the sale's exempt nature. Note that in some states the seller can obtain the exemption certificate within a certain time period of the sale or otherwise prove the exemption during the audit.

Exemption certificate requirements vary by state, and businesses need to understand, on a state-by-state basis:

• Whether the state requires a state-specific form or accepts a multistate form;
• What specific information must be included on an exemption certificate;
• How long an exemption certificate is valid;
• How long a business must retain an exemption certificate; and
• Whether a "blanket" exemption certificate is acceptable or whether an exemption certificate is needed for each transaction or a particular series of transactions.

Businesses that make many exempt sales may want to consider employing one of the available exemption certificate management systems that streamline the process for ensuring companies have valid exemption certificates on file for purchasers requesting the applicable exemptions.

Second, it is important to ensure processes are in place to properly record and source sales. These processes should capture the information necessary for the business to meet its sales tax obligation in the various states. Such information includes, but is not limited to, purchase price, sales tax collected, ship-to location, and any applicable exemption and its applicable documentation.

In addition to state sales tax, businesses must be cognizant of the fact that many localities throughout the country also impose their own sales taxes in addition to the state's tax. For example, the city of Philadelphia imposes a 2% sales tax on top of Pennsylvania's 6% sales tax.¹² Proper tracking of such pertinent information will ease the burden of filing sales tax returns or providing the information required by notice-and-reporting requirements when necessary. In addition to easing the burden when performing sales tax obligations, proper tracking of this information can also protect a business in the event of an audit.

Third, it is important to accurately record the amount of sales tax collected and for which jurisdiction. While this may sound simple to accomplish, doing this properly requires not only having the systems and processes in place to ensure the amount of tax collected is properly recorded, but also having systems and processes in place to ensure that the proper tax rate is applied.

In Step 2, it was highlighted that states impose sales tax on different tax bases. Any business that makes sales to customers in more than one state must know how each state will tax its products and/or services. Additionally, states often impose varying rates on different sales types. Consequently, not having the proper systems and processes in place can lead to businesses overcollecting, undercollecting, or not collecting sales tax at all, leading to potential tax exposures and lawsuits.

Luckily, while this may sound like a herculean task, for businesses with relatively limited products and/or customers, it may not be as difficult. For businesses with more diverse products, services, and/or customers, there are bolt-on tax engines on the market to assist with the proper collection of sales tax at the time of invoicing. These systems allow businesses to map products and services to certain taxability codes to ensure that sales tax is being charged properly and at the appropriate rate based on the purchaser's location. An added benefit of these systems is that they frequently ease the compliance burden by tracking most, if not all, required reporting information.

Fourth, while the items noted above are essential to properly fulfill sales tax obligations, another tax obligation that is equally important, but is frequently overlooked, is use tax. Not only should businesses collect and remit the proper sales tax when required, businesses should also be tracking the sales tax paid or not paid to vendors. While vendors are often required to charge sales tax, not all vendors are required to do so, while other vendors may apply sales tax incorrectly. For example, some vendors may not have nexus in certain states and, as such, would not have a sales tax filing obligation in those states. In this situation, the purchasing business is required to self-accrue and remit use tax to the applicable jurisdiction to the extent the purchase is taxable.

Additionally, in the wake of Wayfair, it is possible that some vendors may elect to charge sales tax on all sales made in all states rather than performing a taxability analysis to determine the taxability of their products and/or services. In these situations, if a business does not track the sales tax it pays when making purchases, it may end up paying sales tax on purchases on which sales tax should not be imposed. Ultimately, while sales tax collection is generally considered the vendors' duty, it is each business's responsibility to ensure that the proper amount of sales or use tax is being remitted on its own purchases.

Fifth, and last, businesses should register with a state before collecting sales tax. Sales taxes are often referred to as "trust fund taxes" because they are designed to be collected and then remitted to the state by businesses. Consequently, businesses are acting as state agents in this capacity. As a result, states may apply criminal penalties if taxes are collected but not properly remitted.¹³

Step 4: Filing sales tax returns

After registering with the state for collection and remittance of sales tax, the next step in the compliance process is filing sales tax returns. Initially, most states require newly registered businesses to file sales tax returns monthly. For businesses that have not previously filed sales tax returns in multiple states, this may seem like a daunting task. However, if the proper systems and processes are put in place, it does not have to be.

Many state sales tax returns are not overly complicated, asking for lump-sum figures of gross sales, exempt sales, and taxable sales. It becomes more complex when a state requires sales by state localities to be provided to ensure the proper local tax rates are being applied. Many states require sales tax returns to be filed electronically, either through the state's portal or through tax return preparation software. Many businesses have both the employee capacity and systems to do these internally. However, other businesses may prefer to outsource their sales tax compliance functions rather than employ sales-tax-specific staff or purchase tax return preparation software. Businesses looking to outsource sales tax compliance have many options. Many accounting firms offer these services in addition to sales tax software companies.

As the number of sales tax filings will likely continue to grow as more states enact remote-seller statutes, automated solutions, including tax engines and compliance software, become essential. These solutions can help meet strategic goals as businesses look to automate repeatable, data-intensive processes. Assuming the proper sales information can be gathered throughout the month, businesses can use automated solutions to convert the information into the format necessary to populate the sales tax returns in compliance software. Many businesses are spending significant resources to automate their processes, often with sales tax being a focal point of these efforts. Automation services can be done externally by a third party, or businesses can implement the automation within their own systems. Through automation of sales tax compliance, businesses can significantly reduce tax staff time spent on manual, repeatable processes and increase staff time spent on more value-added projects.

After a business has filed in a state for a period of time, the business should review its reportable sales to confirm whether the business needs to continue to file monthly based on the state's monthly filing thresholds. If not, the business may be able to reduce its filing frequency to quarterly or possibly even annually. The obvious benefit of this analysis is a reduction in the number of overall returns the business must file.

Step 5: Dealing with states in which you have been 'doing business'

It has only been a year and a half since the Supreme Court's landmark decision in Wayfair, however, many states wasted no time in getting related legislation enacted. Many states that enacted remote-seller related legislation had an enforcement date of either Oct. 1, 2018, or Jan. 1, 2019. As such, to the extent a business has not yet completed the nexus analyses described in Step 1, there may be exposure for prior periods in which it exceeded the remote-seller threshold and did not collect and remit sales tax.

As mentioned earlier, it is also possible that businesses had nexus with unidentified states before the remote-seller standards came into play if the businesses considered the physical presence standard as the only bright-line rule. Consequently, potential prior-period exposure may be larger than the exposure related to remote-seller nexus only. The earlier businesses act to determine where they may have a sales tax obligation, the more limited their potential exposure for prior periods will be. If a business determines that it has nexus with a state in which it has not been fulfilling its associated sales tax obligations, there are a few ways to move forward.

Assuming a business only recently established nexus through the enactment of the remote-seller thresholds, the business may simply choose to register with the state and file sales tax returns going forward. However, it is important to note that most states will ask when an entity started doing business in the state when registering for sales tax purposes. For businesses that would like to register prospectively after the enforcement date of the remote-seller thresholds, this may be problematic if the business clearly had nexus back to the enforcement date. States have various interpretations of the phrase "doing business." However, the date nexus was established in the state is generally the accepted answer. It remains to be seen whether providing an answer to these questions indicating potential prior filing obligations will lead to more frequent audits.

In addition to this "doing business" question, another item to keep in mind when registering with a state is any potential income tax filing obligations that may result. Frequently, states will ask why a business is not registering for both sales tax and income tax when registering for only one of the two. Businesses should ensure they have reviewed any potential income tax filing obligations when preparing to register for sales tax purposes.

For businesses preferring to address any potential prior-period exposure before registering, one of the most popular avenues to remedying these exposures is through voluntary disclosure programs. Many states offer these programs, which allow businesses to come forward to register and pay outstanding tax liabilities for a limited lookback period while protecting the businesses from audits of prior periods. Most states require returns or spreadsheets containing the same information required to complete the returns for the prior three-year or 36-month period, as well as payment of tax and interest for that period. In return for the taxpayer's coming forward, states will generally agree not to audit the businesses for periods prior to the agreed-upon lookback period and will waive penalties for the periods for which returns are being filed.

Additionally, most states allow businesses to come forward anonymously when trying to secure an agreement. In these instances, businesses usually use a tax professional to file the request on their behalf and correspond with the state until the agreement is in place. However, be aware that voluntary disclosure filings are subject to audit and should be done with care, and negligence in their preparation could void the deal.

Another popular method for resolving prior-period exposure is through tax amnesty programs. States typically enact tax amnesty programs for limited periods of time, and the rules of the tax amnesty programs can vary. Some states will limit the periods for which amnesty is available, while others will limit their amnesty programs to only certain tax types. Most amnesty programs will provide for some form of relief from penalties and/or interest that would normally be assessed on the prior-period exposure. Businesses are typically required to file returns for outstanding periods and pay the associated liabilities to participate in amnesty programs.

Due to the number of states that have enacted remote-seller-related legislation since the Wayfair decision, it is possible more states will offer some form of amnesty program in the near future for businesses that may not have been able to register and begin filing by the effective dates. Both tax amnesty and voluntary disclosure programs provide companies with avenues to resolve prior-period exposures and begin fulfilling their sales tax filing obligations without worries as to unlimited lookback periods.

Step 6: Consequences of noncompliance

For businesses that choose to register and file prospectively without evaluating prior exposures or to not register and file at all, there are potential consequences. Most states are not limited to a certain lookback period when auditing businesses that failed to file in prior periods, although many for administrative purposes do not go further back than 10 years. For example, assuming a business had never filed in a state, the state could go back as far as it deems reasonable to assess tax, interest, and penalties. If a business does not have complete sales records back to the date requested by the state under an audit, the state will then have to estimate the exposure for those periods for which data is not available. States are typically free to use whichever estimation technique they may deem reasonable, which leaves businesses at their mercy. This indefinite lookback period is one of the main reasons voluntary disclosure programs have become so popular. An indefinite lookback could have adverse consequences for most businesses that have established nexus under prior nexus standards.

While the potential for an indefinite lookback period under audit is certainly a deterrent, potential criminal penalties are also associated with sales tax noncompliance. Many states have criminal penalties included in their statutes for businesses that collect and do not remit sales tax. Further, some states impose criminal penalties on individuals who knowingly fail to file sales tax returns in the state, and many states impose personal liability on corporate officers.

Application of Wayfair to non-sales and use taxes

While Wayfair addressed whether South Dakota could subject a remote seller to its sales and use tax, the analysis performed by the U.S. Supreme Court under the Commerce Clause applies to all states and, potentially, to all taxes. Under this new jurisprudence, states may begin to consider economic activity tests for non-sales-and-use-tax nexus, similar to existing income tax factor-presence standards already adopted in a number of states. It is imperative that businesses consider how Wayfair may impact their non-sales-and-use-tax obligations, such as income and franchise taxes and gross receipts taxes.

Recently, Hawaii became the first state to adopt a "Wayfair-styled" income tax nexus threshold for businesses without a physical presence in the state, effective for tax years beginning after Dec. 31, 2019.¹⁴ Hawaii's standard establishes a presumption of nexus for any business that engages in 200 or more business transactions or that has gross income attributable to sources in the state of $100,000 or more. Those thresholds mirror what many states have adopted for sales tax purposes over the past year, including Hawaii's own economic sales tax nexus law.

It is anticipated that other states could follow Hawaii's lead and adopt similar standards for income tax or other non-sales tax purposes. For example, the Texas Comptroller released draft proposed regulations in August 2019 establishing a $500,000 gross receipts threshold for the state's franchise tax applicable to returns due on or after Jan. 1, 2020.¹⁵ On the local level, Philadelphia adopted a $100,000 economic nexus threshold for the city's business income and receipts tax, a combination gross receipts tax and income tax;¹⁶ and San Francisco adopted a $500,000 sales threshold for the gross receipts tax.¹⁷

The Multistate Tax Commission (MTC) has two working group projects that are studying the Wayfair issues and potential revisions to P.L. 86-272, the Interstate Income Act of 1959, concerning income tax nexus. The MTC Wayfair Implementation and Marketplace Facilitator Work Group (available at www.mtc.gov is addressing issues concerning states implementing Wayfair and enacting requirements for marketplace facilitators to collect and remit sales and use tax on marketplace sales. The work group's goal is to develop recommendations for maximizing compliance while minimizing the burden on remote sellers, marketplace facilitators, and marketplace sellers. The MTC P.L. 86-272 Statement of Information Work Group (available at www.mtc.gov plans to update the MTC's "Statement of Information Concerning Practices of Multistate Tax Commission and Signatory States under Public Law 86-272," which was last updated in 2001. The work group plans to propose revisions to the statement to address changes that have occurred during the past two decades in the economy and how business is conducted.

While it remains to be seen if receipts and transactions thresholds become a trend in the non-sales-and-use-tax space, businesses should be aware that Wayfair's impact is not just limited to sales taxes. However, remote businesses should consider that P.L. 86-272 may apply to their activity in a state. P.L. 86-272 is a federal safe harbor prohibiting a state from imposing a net income tax on a seller's business activity if it is limited to the solicitation of orders for sales of tangible personal property. The Wayfair decision does not modify those protections or due-process protections.

For more information and tools to assist practitioners with sales tax nexus issues, view the online version of this column at thetaxadviser.com/wayfair.

Footnotes

¹South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).

²Quill Corp. v. North Dakota, 504 U.S. 298 (1992).

³For more information on the evolving nexus standards pre-Wayfair, see Scaffidi and Delsman, "Sales-and-Use-Tax Nexus in the Internet Age: What's a Retailer to Do?" 48 The Tax Adviser 702 (October 2017), or speak with a tax adviser.

⁴For example, California, the District of Columbia, and Tennessee (Cal. Dep't of Tax and Fee Admin., "Special Notice: New Use Tax Collection Requirements Based on Sales Into California Effective April 1, 2019" (December 2018); D.C. Act 22-584, §2 (1/18/19); Tenn. Dep't of Rev., Sales and Use Tax Notice 19-04 (June 2019)).

⁵For a summary of currently enacted remote-seller provisions including thresholds and effective dates, see Vertex, "State Guides: Remote Seller Nexus Rules Chart," available at www.vertexinc.com.

⁶Ala. Code §40-23-1(6); Colo. Rev. Stat. §39-26-104(1)(a).

⁷S.D. Codified Laws §10-45-5.2; W. Va. Code §11-15-2(b).

⁸72 Pa. Stat. §7204(1).

⁹72 Pa. Stat. §7204(17).

¹⁰72 Pa. Stat. §7204(10).

¹¹The documentation requirement does not always apply when the item is exempt because of what it is rather than what it will be used for or who will use it; for example, prescription drugs versus a purchase to be used in manufacturing.

¹²53 Pa. Stat. §12720.601; 72 Pa. Stat. §7201-B.

¹³For more on this, see Hopkins, "Responsible Person Rules in the Wake of Wayfair," 228-5 Journal of Accountancy 52 (November 2019).

¹⁴Haw. Rev. Stat. c. 235, §1.

¹⁵Tex. Comptroller, Prop. Rule 3.586.

¹⁶Philadelphia Business and Income Receipts Tax Regs. §103(C).

¹⁷San Francisco Business and Tax Regs. Code §6.2-12(k).