With the availability of high speed Internet access, smart phones, and tablets, it is not surprising that the global retail industry is experiencing a fundamental shift in how individual consumers research, select, and eventually purchase products. Individuals are shopping through a variety of different channels, some physical, some virtual, making for an easier and more streamlined shopping experience. E-commerce has quickly become a key channel for retailers to reach their customers. This embrace of digital technology and social media is creating a new landscape for retailers as they ensure that their policies and practices support these changes. These shifting business models are creating unique consumption tax issues for global retailers selling within and into the United States.
On October 18, 2013, in a 6-1 decision, the Illinois Supreme Court ruled that the state’s click-through nexus law is pre-empted by the federal Internet Tax Freedom Act’s ban against ‘discriminatory taxes on electronic commerce.’ The court did not reach the issue regarding whether the click-through nexus provision violated the US Commerce Clause. [Performance Marketing Association, Inc. v. Hamer, Ill. Sup. Ct., #114496 (10/18/13)]
On May 23, 2013, Minnesota Governor Mark Dayton signed H.F 677, which makes significant changes to Minnesota’s sales and use tax, including taxing digital goods, adding click-through nexus provisions, authorizing multiple points of use exemption certificates, and requiring remote sellers to collect and pay sales and use tax consistent with federal legislation.
Effective June 26, 2013, Maine sales tax applies to products transferred electronically. A “product transferred electronically” is sold in Maine if:
– the product is delivered electronically to a purchaser located in Maine;
– the product is received by the purchaser at the seller’s location in Maine;
– a Maine billing address is provided by the purchaser in connection with the transaction; or
– a Maine billing address is indicated in the seller’s business records.
A “product transferred electronically” is a digital product transferred to a purchaser electronically, the sale of which in non-digital physical form would be subject to tax as a sale of tangible personal property.
This legislation, H.P. 1079, was passed despite the Governor’s veto.
In April 2013 we have organized a workshop for our clients where we have presented the current and future ecommerce legislation in Switzerland, Europe and worldwide, discussed tax related trends among ecommerce businesses and tax authorities and presented our vies of the future cross-border tax and business implications for ecommerce. We have spent quite some time discussing how the ecommerce tax compliance will need to be modernized and automatized in order to meet the requirements of the ecommerce businesses of tomorrow and presented our vision on how to meet this goal of automated, scalable, seamless and affordable tax compliance service offering.
As a follow-up to the workshop we have prepared and publicized an article in the May 2013 edition of Tax Planning International: Indirect Taxes. For your convenience you can download its copy here.
Effective January 1, 2014, West Virginia expands the definition of a “retailer engaging in business in this state” for sales and use tax purposes to include affiliates which operate a website or Internet business within the state. Specifically, “any retailer that is related to, or part of a unitary business with, a person, entity or business that . . . is a subsidiary of the retailer, or is related to, or unitary with, the retailer as a related entity, a related member or part of a unitary business” that meets one of the following criteria will be required to collect and remit taxes in West Virginia: Find out more
As reported, the US Senate on May 6 passed, by a vote of 69-27, the Marketplace Fairness Act of 2013, which provides that full member states of the Streamlined Sales and Use Tax Agreement and non-member states that meet certain minimum simplification requirements may require remote sales tax collection. The Senate also passed a perfecting amendment by a vote of 70-24.
S. 743 is identical to the original version of the bill, S. 336, introduced on February 2. The legislation grants remote seller collection authority to states that are full members of the Streamlined Sales and Use Tax Agreement (SSUTA). States that are not SSUTA Find out more
US Senate has passed the Marketplace Fairness Act yesterday which aims at introducing collection of online sales tax in the US directly from online retailers.
Next stop: House of Representatives.
On April 16, 2013, Kansas Governor Sam Brownback signed a new bill – S.B. 83, which generally creates a presumption that out-of-state retailers are doing business in the state for sales and use tax purposes based on the activities of other persons, applicable starting July 1, 2013.
The bill also adopts “click-through” nexus, applicable to sales made 90 days after the bill is published in the Kansas Register. Out-of-state retailers should be aware that, following the enactment of S.B. 83, the activities of an unrelated entity or person could potentially create sales and use tax nexus in Kansas.
Nexus based on activities of other persons
It might well happen that in the not so far future all US online vendors with over $1 million in annual online revenue will be required to pay state and local taxes to the governments that their customers reside in. There are more than 9.600 different state and local tax jurisdictions within the US. This news makes issues related to the upcoming EU VAT 2015 ebiz changes look like a piece of cake.
A federal Marketplace Fairness Act was submitted to the US Congress in February 2013 and aims to substantially reform the taxation of the ecommerce industry in the US. PwC’s summary on the bill can be accessed here. For some more information on the taxation of internet transaction in the US we suggest you to read this report. Find out more