Online Business with No Physical Presence May Be Liable for US Sales Tax

Jurate Gulbinas   |   29 Nov 2019   |   4 min read

In our previous article on the topic of sales tax in September 2018, titled “Understanding Sales Tax in the US” Click here to read the post, we discussed the ways in which US states themselves have taxing powers over sales where there is a sales tax nexus. The sales tax nexus is where your business has a substantial enough presence in a state for the state authorities to deem that you are taxable in such state. Now, however, companies that engage in online sales may be subject to tax obligations regardless of their sales tax nexus under the recent Supreme Court case, South Dakota v. Wayfair.

What happened in South Dakota v. Wayfair?

In South Dakota v. Wayfair, the state of South Dakota was suing Wayfair, an online retailer, for their failure to withhold and remit taxes on online sales inthe state.Wayfair argued against having to do so because under a prior Supreme Court decision, states could only apply sales tax on sellers with a sales tax nexus, which required some sort of physical presence. The Supreme Court decided it was time to take a hard look at this precedent as the growth of online retailers skyrocketed. In doing so, the Court held that states can now require online retailers to collect sales tax if certain revenue or quantity thresholds are met, regardless of whether they have a physical presence in the state.

What are the effects of South Dakota v. Wayfair?

Now, your business will need to withhold sales tax where the business:

  1. Has a sales tax nexus with the state; or
  2. Engages in online sales that meet the threshold level for the state (“Economic Nexus”).

This ruling primarily affects businesses with large eCommerce sales, Software as a Service sales, and digital goods/services sales. Additionally, for foreign companies who transact business in the US, this ruling may affect you even if you do not have a US permanent establishment.

What is the applicable state “threshold” for online sales?

A business will only need to comply with the ruling of South Dakota v. Wayfair if it reaches the particular state’s gross revenue or quantitative transaction threshold. The most popular gross revenue threshold utilized by states is $100,000 or more in in-state sales; whereas, the most popular state threshold based on the number of transactions is 200 in-state sales. It is critical that for each state you transact business in, you review their specific threshold requirements to ensure compliance.

I think my business meets the online sales threshold of a state, what next?

If your business has meets the online threshold of a particular state pursuant to the sales tax rules of such state, you will be required to register for a state sales tax permit and collect sales tax from all buyers in that state. The sales tax permit is obtained from the relevant state tax department.It is imperative that your business file sales tax in all jurisdictions where your business meets the threshold.

Upon receiving the sales tax permit you will be assigned a sales tax filing ‘frequency’ requiring sales tax filing to be made monthly, quarterly or annually. Again, each state has its own requirements and criteria in determining the filing frequency.

It is important to note that the process of determining whether your business is subject to the state sales tax and therefore is required to register for a sales tax permit, is of particular importance as failing to obtain a sales tax permit is deemed as criminal fraud.

How can CST help you?

Navigating through the sales tax rules can become an overwhelming process when trying to focus on the growth of your business in a new market. If you need assistance in analyzing whether your business has a sales tax nexus (physical and/or economical) in a state and whether you are required to be sales tax compliant, please don’t hesitate to get in contact with a member of our team.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Tax Accountant/ International Tax Advisor


8th Aug 2019
Jurate Gulbinas

About CST Tax Advisors CST Tax Advisors is a global firm of CPAs, chartered accountants, and attorneys that advise globally mobile private clients, family offices, and established privately owned...

 

FAQ


14th Jun 2019
Jurate Gulbinas

What is a CFC A CFC is a foreign corporation in which more than 50% of the shares are held by US Shareholders US Shareholders are shareholders in a foreign corporation that own more than 10% of...

 

Streamlined Offshore Procedures vs amended and delinquent filing


19th Sep 2018
Jurate Gulbinas

The IRS has announced that it will close the 2014 OVDP effective September 28, 2018 For taxpayers that have failed to disclose foreign financial assets and income, this limits avenues to coming into...

 

Tax Accountant/ International Tax Advisor


8th Aug 2019
Jurate Gulbinas

About CST Tax Advisors CST Tax Advisors is a global firm of CPAs, chartered accountants, and attorneys that advise globally mobile private clients,...

 

FAQ


14th Jun 2019
Jurate Gulbinas

What is a CFC A CFC is a foreign corporation in which more than 50% of the shares are held by US Shareholders US Shareholders are shareholders in...

 

Streamlined Offshore Procedures vs amended and delinquent filing


19th Sep 2018
Jurate Gulbinas

The IRS has announced that it will close the 2014 OVDP effective September 28, 2018 For taxpayers that have failed to disclose foreign financial...