Jones Walker SALT Team member John Fletcher recently presented at the Council on State Taxation’s Sales Tax Symposium in Atlanta, Georgia. John’s panel, “Hot Topics – East of the Mississippi” covered litigation and legislative issues for companies with extensive operations east of the Mississippi River. Topics included the controversial recent trend by states to impose sales taxes on “marketplace facilitators” such as Ebay, Craigslist, Amazon, Facebook Marketplace, etc. (potentially converting non-taxable person-to-person sales into fully taxable commercial transactions) as well as developments related to and concerns over the constitutionality of various aspects of Louisiana’s local sales tax system. For more information on these issues, be sure to reach out to John or another Jones Walker SALT Team member.
Jay Adams was an instructor at the IPT Sales Tax I School in Atlanta, Georgia where he presented to over 200 attendees on recognizing the hierarchy of laws, understanding the consequences of specific decisions when working with the Department of Revenue and ways to resolve disputes, and identifying the four prongs of the commerce clause and the case. For more information on IPT programming, please click here.
Bill’s first panel, ‘State Tax Reboot: The Age of Multistate”, helped decipher what the recent sweeping tax law changes may mean from a practical perspective for businesses navigating this new age of Multistate taxation. The panel provided summary thoughts on the Constitutional and federal tax law changes, and the plethora of resulting state tax administrative and legislative actions and reactions. The panel also provided their insights on how they prioritize the issues, predictions on how the states will move forward, the challenges that businesses are facing from tax compliance and systems solutions perspectives, and potential planning and restructuring considerations.
Bill’s second panel, “Challenging State Sales Tax Regimes” examined how states are implementing their sales and use tax regimes in this context—including tax collection and remittance for remote sellers, online marketplaces, and referrers—and how businesses may proactively apprise state taxing authorities about the uniformity and fairness issues at play.
The Louisiana Sales and Use Tax Commission for Remote Sellers (the “Commission”) has now officially issued its second information bulletin – Remote Sellers Information Bulletin (“RSIB”) 18-002 – which provides a general definition for “remote sellers,” as well as further administrative guidance regarding current and future registration, collection, remittance, and reporting requirements for “remote sellers.” The Commission issued this final version of the RSIB following lengthy Commission discussions over several weeks and multiple extensions regarding the timing of the Commission’s vote on the RSIB (with an ultimate 6-2 vote in favor of adoption).
A copy of RSIB 18-002 can be found here.
A few items to note regarding RSIB 18-002 are:
Remote Seller Definition
- The RSIB provides a general definition of “remote seller” – i.e., those sellers who would be able to use a single, centralized return instead of being required to file returns separately in each local jurisdiction in Louisiana.
- There is an important distinction in Louisiana between (1) the group of sellers/vendors who have statutory nexus with the State of Louisiana and are statutorily required to collect and remit Louisiana sales taxes because they meet the definition of a “dealer,” and (2) the smaller subgroup of those “dealers” (sellers with statutory nexus) who would also meet the separate definition of “remote seller” and would thus be allowed to utilize one centralized state and local sales tax return (instead of multiple local returns) for reporting purposes.
- The RSIB provides that a “remote seller” means “a seller who sells for sale at retail, use, consumption, distribution, or for storage to be used for consumption or distribution any taxable tangible personal property, products transferred electronically, or services for delivery within Louisiana but does not have physical presence in Louisiana.” According to the RSIB, “[i]f a seller has physical presence in Louisiana, the seller is considered a dealer as defined by LA R.S. 47:301(4) and subject to state and local collection and remittance requirements.”
- The RSIB also includes two examples of “remote sellers.” Based on the in-depth discussions at the Commission’s December 18, 2018 meeting, it is understood these examples are to be illustrative and not exhaustive.
- The first example (Example 1) provides that “Company A sells tangible personal property for delivery to purchasers in Louisiana through only remote means through its Internet website, catalogs, telephone, television shopping channel, or other communication systems … [and] Company A has no physical stores, inventory, or salespersons in Louisiana.”
- The second example (Example 2) provides: “Company B sells tangible personal property for delivery to purchasers in Louisiana through only remote means through its Internet website, catalogs, telephone, television shopping channel, or other communication systems. Company B is an affiliate of Company C, but each company may sell different lines of products. Company C has retail stores located in Louisiana. An online purchase from Company B cannot be returned or exchanged in one of Company C’s stores in Louisiana. Company B is a remote seller but Company C is not a remote seller.”
- Also, importantly, following much discussion and public comment, the Commission voted that the final issued version of the RSIB would not include an additional previously-drafted example of what was “not a remote seller,” because that additional example (if kept) would have inadvertently had the effect of precluding certain classes of sellers/taxpayers with “affiliate nexus” in the State from using a single, central return (be it the current Direct Marketer Return or the Commission’s forthcoming centralized return when completed). Specifically, the final example (now removed) would have in effect seemingly excluded from the definition of “remote seller” a seller that had a separate affiliate entity with retail stores in Louisiana if an online purchase from the seller can be returned at the separate affiliate entity’s retail store location for a refund, credit, or gift card. Louisiana sales tax law – La. R.S. 47:302(V) – currently allows these exact types of sellers to file the single, centralized Direct Marketer Return. Rather than being allowed to use the single Direct Marketer Return (allowed now) or the Commission’s forthcoming single return (when completed), these excluded sellers would have been required to file directly with the State and every local jurisdiction in which they make sales (up to 63 additional separate parish returns per month, or 750+ additional parish returns per year). The Commission ultimately decided to remove this additional draft example of a “non-remote seller” because the Commission did not want to narrow the class of sellers that could use some form of centralized return more than what is even allowed under current Louisiana law. The Commission also did not want to inadvertently add even more complexity and higher undue burdens from a Commerce Clause perspective (as cautioned against by the U.S. Supreme Court recently in Wayfair). The Commission also did not seem to want to inadvertently provide a more expansive view of “physical presence” than is even provided for under the current Louisiana sales tax jurisprudence in the prior BarnesAndNoble.com case. The Court in BarnesAndNoble.com expressly held that those activities noted in the final example (now removed) did not amount to “physical presence” in Louisiana. Based on the Commission’s meeting discussions, the goal of the Commission’s efforts with the definition of “remote seller” in the RSIB was for the “remote seller” status to be determined on an individual entity basis, without adding in additional “affiliate nexus” concepts. The Jones Walker SALT Team had provided public comments to the Commission regarding this specific issue.
Current Voluntary Nature of These Collection and Remittance Provisions
- The RSIB seeks to again clarify that the collection and remittance provisions in the RSIB are currently voluntary, and are not yet mandatory, as the implementing legislative Act – Act 5 of the 2018 Second Extraordinary Session – is not yet “applicable” and cannot be until additional legislative actions occur in the upcoming 2019 Regular Session of the Legislature.
- The RSIB anticipates that the collection and remittance provisions will become mandatory at “a date to be determined sometime in 2019.”
- Remote sellers can expect at least thirty days’ notice prior to the commencement of mandatory collection and remittance requirements. Notice will be issued as provided by LA R.S. 47:302(W)(6) following further work of the Commission and the LDR.
Remote Sellers’ Collection and Remittance Requirements (and Information Reporting Requirements)
- The RSIB provides that a remote seller with the requisite “economic nexus” – gross revenue for sales delivered into Louisiana in excess of $100,000 from sales or separate transactions of 200 or more sold for delivery into Louisiana – should voluntarily apply to begin filing a Direct Marketer Return with the Louisiana Department of Revenue (the “LDR”). Upon approval, the remote seller could immediately begin voluntary collection of sales tax on its remote sales for delivery within Louisiana.
- The Direct Marketer Return allows the seller to collect Louisiana state and local sales tax at a flat combined rate (currently 8.45%) and remit such tax on one, centralized monthly return.
- Any remote seller who does not meet these aforementioned “economic nexus” thresholds, but who has cumulative annual gross receipts in excess of $50,000 per calendar (including those gross receipts of its affiliates) year must comply with Louisiana separate DMA-style information reporting requirements in La. R.S. 47:309.1 as a “remote retailer.” For purposes of calculating these gross receipts, the seller and its affiliates must include all receipts from retail sales of tangible personal property or taxable services where the property is delivered into Louisiana or the beneficial use of the service occurs in Louisiana. The RSIB directs sellers to LDR Revenue Information Bulletin 18-006 for more information. If the seller chooses to voluntarily collect and remit on its sales for delivery into Louisiana, the seller is relieved from the reporting requirements of La. R.S. 47:309.1 beginning on the date of collection. However, the portion of the calendar year preceding the date of collection would remain subject to the State’s information reporting requirements.
Calculation of Applicable Economic Nexus Thresholds
- The RSIB further explains the Commission’s understanding of the way in which a seller should calculate its sales and individual transactions when determining whether the seller has met the State’s “economic nexus” thresholds in La. R.S. 47:301(4)(m)(i) (i.e., (1) gross revenue for sales delivered into Louisiana in excess of $100,000 from sales, or (2) separate transactions of 200 or more sold for delivery into Louisiana).
- According to the RSIB, to calculate the amount and quantity of sales, remote sellers should consider sales during the current calendar year and the immediately preceding calendar year. For example, if a remote seller sold $120,000 of tangible personal property in 1,000 separate transactions for delivery into Louisiana during 2018, the remote seller should voluntarily collect and remit sales tax in 2019.
Timeline of Registration
- According to the RSIB, if a remote seller has not previously registered with the LDR, the remote seller should submit the Form R-1031A within thirty days of surpassing either of the “economic nexus” thresholds in La. R.S. 47:301(4)(m)(i). Assuming the application is approved by LDR, the remote seller should commence collection of sales and use tax on sales for delivery into Louisiana no later than ninety days from the date the remote seller surpassed either of the thresholds of LA R.S. 47:301(4)(m)(i). If the application is not approved, the applicant should adhere to the instructions set forth in the notice from LDR.
A more detailed review and analysis regarding the Commission’s recent activities, discussions, and actions will be forthcoming in a separate blog post.
The Jones Walker SALT Team will also continue to closely follow – and report on – the future activities of the Commission and the Legislature (and any related developments) as they occur.
For those attending the Louisiana Association of Tax Administrators 52nd Annual Conference this week in New Orleans, we are sponsoring the After Five Mixer on December 6 at Harrah’s Theater. Come by and have a cocktail!
Congratulations to JW SALT partner Jay Adams for completing the Council for a Better Louisiana’s Leadership Louisiana Program! Over the course of 2018, Jay participated in leadership events alongside business professionals from all industries. He now joins 1,200 Leadership Louisiana alumni who are committed to the continued success of the state.
On November 20, 2018, the IRS announced that individuals taking advantage of the increased gift and estate tax exclusion amounts in effect from 2018 to 2025 will not be adversely impacted after 2025 when the exclusion amount is scheduled to drop to pre-2018 levels.
For more information, click here to read the bulletin on IRS Newswire.
SALT Team partners Bill Backstrom, Andre Burvant, and Matt Mantle were quoted in numerous media outlets in October discussing the tax administration implications of the U.S. Supreme Court ruling in South Dakota v. Wayfair, allowing states to collect taxes on purchases from remote sellers. Bill was quoted in articles published by Law360 and State Tax Today following his presentation “Treasures in the Attic – Forgotten Favorites for Attacking Economic Nexus” at the Paul J. Hartman State and Local Tax Forum in Nashville on October 18, 2018. Andre and Matt were quoted in the State Tax Today article “Louisiana Commission Debates ‘Remote Seller’ Definition,” commenting on the commission’s efforts to establish Louisiana’s sales tax compliance mechanism for remote sellers following Wayfair. Additionally, Matt was quoted in the Law360 articles “La. Ponders Uniformity As Remote Seller Target Date Looms” and “La. Commission Seeks Input Crafting Remote Seller Definition.”
Thanks to everyone who has helped me move toward my goal of raising $5,000 to support the Jackson Metro Heart Walk. We have two weeks left to hit that goal and help Mississippi by supporting research and education for heart disease and stroke – two of the biggest health issues we have in our state. Anything you might be able to contribute to the cause is greatly appreciated and I hope you can join us on November 17 for the Heart Walk!