The Louisiana Sales and Use Tax Commission for Remote Sellers (the “Commission”) has now issued its first information bulletin – Remote Sellers Information Bulletin (“RSIB”) 18-001 – regarding the impact of the U.S. Supreme Court’s South Dakota v. Wayfair, Inc. decision on remote sellers selling to Louisiana purchasers.
A copy of RSIB 18-001 can be found here: http://revenue.louisiana.gov/LawsPolicies/RSIB%2018-001%20-%20Remote%20Sellers%20Impact%20of%20Wayfair.pdf
A few items to note regarding RSIB 18-001 are:
- The RSIB opines that due to the Wayfair decision, the Commission is now authorized to act as the single entity for the administration and collection of sales and use taxes with respect to remote sellers. However, it should be noted that it remains unclear if this jurisdictional expansion of the Commission under Act 5 of the 2018 Second Extraordinary Session was actually triggered by Wayfair. As we mentioned in our previous blog post, Not So Fast: Louisiana State and Local Sales Taxes in a Post-Wayfair World:
“Act 5 does not become applicable unless/until the U.S. Supreme Court rules in the Wayfair case that the South Dakota statute/regime is “constitutional.” Although the Court in Wayfair ruled that there is no longer a “physical presence” nexus test for Commerce Clause purposes, the Court did not rule that South Dakota’s scheme was constitutional. Rather, the Court remanded the case to address whether South Dakota’s regime was constitutional taking into account other issues (such as any other undue burdens upon, or discrimination against, interstate commerce). Thus, as of right now, Act 5 in Louisiana is not yet applicable (and may never be).”
- The RSIB also opines that a flat adoption of the Streamlined Sales and Use Tax Agreement was not a requirement found by the Court in Wayfair in order to meet Commerce Clause standards. Some, however, have disagreed with this notion, and the ultimate answer on this issue is currently unclear.
- The RSIB provides that the Louisiana Department of Revenue will not be seeking any retroactive application of the Wayfair decision, and instead will begin enforcing collection from remote sellers for any taxable period beginning on or after January 1, 2019.
- The RSIB also notes that the Louisiana Uniform Local Sales Tax Board will issue guidance to local collectors recommending that they also do not seek any retroactive application of the Wayfair decision.
- The RSIB reminds remote sellers that those who have voluntarily registered with the Department of Revenue and are currently collecting and remitting sales and use tax using a Form R-1301, Direct Marketer Sales Tax Return, should remain collecting and remitting in such manner until further guidance is issued by the Commission.
- The RSIB also reminds taxpayers that the current information reporting requirements in Louisiana are still in effect; thus, remote sellers who are not currently collecting and remitting sales and use taxes must file applicable information reports as required under current law.
The Jones Walker SALT Team will continue to closely follow – and report on – these developments as they occur.