An Update on the Wayfair Decision: And Then There Were None

By: Jeff Glickman, SALT Partner

At a glance:

• Wayfair news: As we approach the three-year anniversary of the South Dakota v. Wayfair, Inc. decision, the last three states without a sales tax economic nexus rule have finally joined the party.
• Know your requirements: If you conduct a multistate business, you need to be well-versed in your sales/use tax obligations.
• Get expertise: Aprio’s expert State and Local Tax (SALT) team regularly helps businesses navigate sales tax nexus across all 50 states.

Schedule a free consultation.

The full story:

This June will mark the three-year anniversary of the landmark United States Supreme Court decision in South Dakota v. Wayfair, Inc., in which the Court held that a business’s physical presence was not necessary for a state to require it to collect and remit sales/use tax.

The Wayfair decision paved the way for states to establish economic nexus rules, and over the past three years, all  states with a sales tax did so, except for Florida, Kansas and Missouri.[1]

Within the last couple of months, all three of those states passed legislation to establish economic nexus provisions, which we summarize below.

Florida

Florida Senate Bill 50 was signed by Governor DeSantis on April 19, 2021, and is effective on July 1.  Under the legislation, every person making a “substantial number of remote sales” is considered a dealer that is required to collect and remit Florida sales tax. A “substantial number of remote sales” means “any number of taxable remote sales in the previous calendar year in which the sum of the sales prices . . . exceeded $100,000.”

The term, “remote sale,” is defined as “a retail sale of tangible personal property . . . ordered from a person who receives the order outside of this state and transports the property or causes the property to be transported from any jurisdiction . . . to a location in this state.”[2]

The legislation also establishes sales tax collection and remittance obligations for marketplace facilitators.

Kansas

On May 3, 2021, the Kansas legislature overrode Governor Kelly’s veto of Senate Bill 50 to establish an economic sales tax rule applying to a retailer that has not otherwise established nexus in the state when it has cumulative gross receipts from sales to customers in the state exceeding $100,000.

Any retailer that exceeded the threshold in calendar year 2020 or from January 1, 2021, through June 30, 2021, will be required to collect and remit sales tax for sales occurring on or after July 1, 2021.  Otherwise, retailers that exceed the threshold will be required to collect and remit sales tax once they exceed the $100,000 threshold.

The legislation also establishes sales tax collection and remittance obligations for marketplace facilitators.

Missouri

On May 14, 2021, the last day of its legislative session, the Missouri legislature passed Senate Bill 153, and it now heads to the Governor’s desk where it is expected to be signed.

Effective January 1, 2023, a business “engages in business activities within this state” — and is required to collect and remit sales tax — if its taxable sales of tangible personal property into the state during the current or previous calendar year exceed $100,000.

The threshold is calculated at the end of each calendar quarter and is based on the 12-month period ending on the last date of the calendar quarter. If the business meets the threshold, then it is required to collect and remit sales tax beginning no later than three months following the close of that quarter.

For example: for a quarter ending on March 31, the business will determine if it exceeded the $100,000 threshold for the 12-month period ending on March 31. If so, then the tax collection process must begin no later than July 1 and it must continue for a period of no less than 12 months.

The legislation also establishes sales tax collection and remittance obligations for marketplace facilitators.

The bottom line

Businesses must continue to monitor their sales closely to determine if they have triggered a state’s sales tax collection requirements.

Aprio’s SALT team has extensive experience in helping businesses comply with these economic nexus rules and can help you understand your sales tax obligations. Our assistance will ensure that you meet sales tax compliance requirements and do not incur unexpected liabilities and penalties.

We constantly monitor these and other important state tax topics, and we will include any significant developments in future issues of the Aprio SALT Newsletter.

Contact Jeff Glickman, partner-in-charge of Aprio’s SALT practice, at jeff.glickman@aprio.com for more information.

[1] In August 2019, the Kansas Department of Revenue issued guidance stating that remote sellers were required to collect and remit tax without providing a safe-harbor threshold.

[2] In states that determine the threshold based on sales of “tangible personal property,” it is important to review the state’s definition of tangible personal property.

Disclosure

Any tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or under any state or local tax law or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Please do not hesitate to contact us if you have any questions regarding the matter.