Kill Quill for a Fair Way Forward? The U.S. Supreme Court Reconsiders State Sales Tax Nexus Law in Summer 2018
April 12, 2018
By: Jimmy Martens
This summer, it’s widely expected that the U.S. Supreme Court will overrule, distinguish, or substantially limit its 1992 decision holding that only sellers with a physical presence within a state are within reach of that state’s sales taxing authority. If the Court does depart from its longstanding, bright-line physical presence rule, it will spell major changes both for national online sellers and state economies, as billions of revenue dollars become accessible to state tax collectors and lawmakers scramble to implement a workable scheme for tax regulation in this context.
Quill Corp. v. North Dakota
In 1992, the U.S. Supreme Court decided Quill Corp. v. North Dakota, which struck down the North Dakota Supreme Court’s decision holding that the mail-order office supplier was required to collect and pay North Dakota use tax on its sales to roughly 3,000 customers within North Dakota. The Court held that a state may only impose tax obligations on a seller that is physically present within its borders. This physical presence includes employees, agents, or independent contractors working in the state, tangible personal property within the state (inventory, vehicles, or rented personal property), or a physical location there (an office, salesroom, distribution center, warehouse, or other place of business). The Court imposed the physical presence requirement to prevent state legislatures from creating unfair burdens on interstate commerce.
The landscape has changed since Quill: remote sales have exploded in volume due to the internet. Many argue that now brick-and-mortar, in-state sellers and state coffers are the ones that need protection. In the internet era, and in light of Congress’ failed efforts to address the issue, state legislators have chipped away at Quill by enacting so-called “Amazon laws,” named for the e-commerce giant they first sought to target. These include click-through, notice, affiliate, and economic nexus laws.
A “click-through nexus” law, like that of New York, requires an out-of-state seller to collect sales tax when the out-of-state seller pays a commission to an in-state company whose website allows customers to “click through” to the out-of-state-seller’s website and make purchases there. At least twenty states have enacted these so-called “click-through nexus” statutes.
Notice laws are another type of Amazon law rolled out by states eager to reach and tax online sales dollars. Louisiana, for example, requires out-of-state sellers that do not collect and pay Louisiana use tax to notify their Louisiana customers that their purchases are subject to Louisiana use tax and provide each one with an annual notice containing the total amount the purchaser has paid that seller for property or taxable services in the preceding year. Similarly, the remote seller must file an annual statement for each Louisiana purchaser with the Louisiana Department of Revenue that includes the total amount paid by the purchaser to that seller for property or taxable services in the preceding year.
Affiliate Nexus Laws
Affiliate nexus laws treat the in-state physical presence of a related company as the physical presence of the seller when certain conditions are met. For example, Texas’ affiliate nexus applies when:
- The out-of-state seller sells the same or similar product as the related company under the same or similar business name;
- The out-of-state seller uses the related company’s Texas facilities or employees to advertise, promote, or facilitate the out-of-state seller’s sales;
- The out-of-state seller uses the related company’s Texas facilities, or employees are used to perform any activity on the out-of-state seller’s behalf intended to establish or maintain a marketplace for the out-of-state seller in Texas, including receiving or exchanging returned merchandise; or
- The related company maintains a distribution center or warehouse and delivers property sold by the out-of-state seller to customers.
Economic Nexus Laws
In 2005, Ohio became the first state to enact what is now termed an “economic nexus law.” Ohio’s law provides that any seller who makes over $500,000 in sales to Ohio purchasers is subject to Ohio’s sales tax laws. Other states have followed suit, drafting similar statutes with sales thresholds ranging from $500,000, to $10,000 to no threshold at all.
These and other Amazon laws are intended to bolster state use tax law enforcement, and some even provide for expedited and streamlined legal procedures for tax collection.
South Dakota v. Wayfair
Perhaps the most deliberate challenge to Quill is that of the South Dakota state legislature, which is now pending before the U.S. Supreme Court in South Dakota v. Wayfair. South Dakota’s law requires sellers with no physical presence in South Dakota to collect and remit sales tax to the state when the seller’s gross revenue from sales to South Dakota residents total $100,000 or more through over 200 transactions. Before the law came into force in May 2017, South Dakota sent notice of lawsuit to the four largest out-of-state sellers that it believed would exceed the threshold and were not collecting sales taxes. Of those, Wayfair Inc., Overstock.com, Inc., and Newegg Inc. refused to comply. South Dakota filed suit, and the case made its way to the South Dakota Supreme Court, which ruled for the sellers against the state, citing Quill. The state filed a petition for a writ of certiorari, which the U.S. Supreme Court granted. The U.S. Supreme Court announced in January that it would hear the case.
Many express doubt that the Supreme Court will overturn Quill in light of the political nature of the questions posed in South Dakota v. Wayfair, emphasizing that it is Congress’s job to police states’ infringement on interstate commerce and to develop a taxing scheme that brings the currently insurmountable task of nation-wide state and local sales tax compliance within reach for online sellers. However, it is also doubtful that the High Court would grant certiorari only to simply punt to Congress without further input or development of the issue.
In the absence of a final decision, online sellers face a dilemma: comply with state laws that are, on their face, unconstitutional at present, or defy those laws and risk the repercussions from state governments. Assuming the Court overturns Quill, online sellers’ exposure from failing to comply with state laws could be nominal or overwhelming, depending on whether states are allowed to, and do in fact apply their laws retrospectively.
The Supreme Court’s decision in South Dakota v. Wayfair is certain to cause ripple effects throughout the tax world. Doing away with the physical presence standard may raise issues regarding the calculation of Texas franchise tax obligations for combined entities with out-of-state members. Even if the Court declines to overturn Quill, state legislatures that have ignored the physical presence standard may have to enact laws to make up for the potential tax revenue lost. At the very least, the pressure on Congress to resolve this issue should reach its pinnacle.
Oral arguments are scheduled for April 17th, and a decision is expected by the end of the current term, in June.
ACPEN hits the “Big Easy”
March 16, 2018
Every once in a while, we pack up and hit the road. Just a couple of weeks ago, ACPEN headed to the “Big Easy” to attend the 2018 CPA Educators Conference. We attend this conference annually, as it provides a unique opportunity to meet with state CPA societies and our content partners to hear what’s new and exciting in the world of CPE!
Obviously, this year, the big news relates to the new Tax Cuts & Jobs Act of 2017. With this new legislation comes some pretty big changes for tax practitioners and their clients. Good news-ACPEN’s already on it. We currently have an overview of this new plan available from our partner, Art Werner, called: Understanding the Tax Cuts & Jobs Act of 2017.
And for those of you who need a more in-depth look at this legislation, check out our ACPEN Signature Course on May 16th—Tax Planning After the Tax Reform Act.
The other topics discussed at the conference were Artificial Intelligence (AI) and Succession Planning. We’ll be working on some new content to address these areas, but we’d also love to hear from all of you. Let us know what topics you’d like to see added to the ACPEN catalog. —please leave us a comment with your suggestions!
You’ll be glad to know that it wasn’t all work. At ACPEN, we always make time for a little bit of fun! We ate some great food, saw some beautiful sites, and even hosted a Happy Hour from our Bourbon Street Balcony. A lot of work, and a lot of fun—Laissez Les Bon Temps Rouler!
New course on the just passed tax reform legislation!
December 20, 2017
ACPEN will be offering a new course, presented by our buddies at Werner-Rocca Seminars, Ltd! Congress just passed a major piece of tax legislation, which is expected to to have massive consequences for CPAs and their clients.
Fortunately, we have at ACPEN have you covered with a new course, Understanding the Tax Cuts and Jobs Act of 2017.
From the press release:
This webcast will outline all of the significant changes in the 1,100-page Act. In this course, the participants will learn the legislative changes and how these changes will affect the compliance and planning needs of their clients. The course will also be replayed on multiple dates throughout the rest of December and into 2018. ACPEN and Werner-Rocca Seminars are trusted sources of quality accounting continuing education, and we are ready to get practitioners the information they need on this monumental legislation right away!
The course presenter, Art Werner, is a recognized expert on taxation, and an experienced presenter, who has created many CPE courses with ACPEN.
We hope you can join us for this important course on the new tax reform! We’ll help you stay up to date on these latest developments for you and your clients!
Behind the Scenes: ACPEN Signature-Business Fraud Update
September 20, 2017
If you’re not familiar with our ACPEN Signature series line of programming, you should definitely make it a point to check them out. All of our ACPEN Signature courses are comprised of panels of experts in a discussion-based format. They are studio produced and include extensive downloadable materials–I could go on. We routinely hear that Signature courses are extremely engaging and useful. But, our annual Business Fraud update takes our Signature line to another level.
The Business Fraud course also features a large panel of experts, as all Signature courses do. In the morning, our presenters cover new developments, share “horror stories,” talk Cyber Security and recent developments in Data Analytics. In other words-everything you need to know about Business Fraud. But simply hearing about fraud, and actually understanding fraud and the process of detection, investigation, etc. are two very different things. So in the afternoon, our crew takes it one step further, and their discussion centers around a fraud simulation.
The simulation begins with a script, which was created by the lovely and talented Margie Reinhart. Margie is a former Director in Grant Thornton LLP’s Forensic, Investigative and Dispute Services-so, she was clearly the right person for the job. The simulation covers a case of fraud from discovery, to investigation, and resolution.
So that the course remains fluid and as seamless as possible, we pre-produced the simulation segments prior to the actual live course. Now for the fun part! All of our presenters were assigned a role in the simulation.
Meet the cast:
*Jim Parente (our CEO & Exec. Producer!) as Derek Johnson-Slime Construction IT Head
*Mario Flores as Kurt Harris – Defense Builders IT Specialist
*David Cotton as Carl smith – Defense Builders COO
*Toby Bishop as Jerry Boyd – Defense Builders Project Manager
*Margie Reinhard as Emma Jones – Defense Builders Internal Audit
*Charlie Blau as Sam Smtih – Defense Builders General Counsel
*John Toney as George Scott – Cyber Security Investigation Expert
*Paul Yanowitch as AUSA
*Alan Buie as FBI Agent
Some of our presenters felt right at home with their acting cap on and others had to overcome a bit of stage fright. But you would never know it. With very little time to rehearse, they put on quite a show.
With all of the simulations already produced, this morning was easy breezy (which is to say no crazier than normal). A little breakfast and a little make-up for our presenters, while our production crew worked their magic to setup for the day (bug logos, lower thirds, and audio–oh my!).
Then a few minutes to mic everyone up, and with that, we’re off and running!
If you missed the live course today, no worries! You can register for one of the Live Webcast Replays in the next couple of months (same course, live credit, and you can even submit questions!)-whichever date works for you! And apply the discount code below for 20% off of one of the ACPEN Business Fraud replay dates! (Tell a friend!)
Discount code: BFReplay2017
The amount of work that goes in to this particular course on the part of our producer, panelists, and production crew is really pretty impressive. And hopefully, that translates to nothing short of an interesting, engaging, and informative course for you. Enjoy!
July 11, 2017
Last week, a bunch of the ACPEN crew was off on fabulous summer adventures (no coincidence that it came just after the June 30th deadline ; ). While there were still a few people holding down the ACPEN fort in Dallas, the rest of us set up “remote offices” on cruise ships, in Colorado and, for me, St. George Island.
I’m going to be really honest. I intended to do a bit of work each day, because we all know the to-do list is seemingly never-ending. But on most days, the beach (and my little ones) called, and who am I to say no? The water was perfect, the sun was shining, and there is nothing quite like the sound of the waves on the shore. Plus, I had the perfect place to use my ACPEN Beach Ball (if you want your own, email firstname.lastname@example.org)! This trip, I chose a bit of restoration rather than productivity.
I can’t take you all with me to the beach, but I can make it really easy for you to schedule and complete your CPE. And maybe that will give you a little extra time to plan your perfect get-away. Apply code WAVES2017 at checkout to receive 20% off your next purchase. Good for purchase through August 14th.
I’m now back to my reality and my to-do list, but I’m feeling refreshed and renewed. So, I’ll leave you with this little glimpse of paradise.
And if you lean in really close, you might just be able to hear the ocean.
2017 ACPEN Signature Curriculum
April 5, 2017
ACPEN’s top of the line CPE programming, the ACPEN Signature series, is back for 2017! These panel discussion based courses offer eight CPE hours each, and are lead by some of the finest presenters and practitioners in the business!
You can learn more specific courses by checking out the links below!
LLCs & Partnerships Update
5/24, 6/7, 9, 13, 12/15, 12/21, 1/4/18
Not-for-Profit Accounting, Auditing & Tax Update
6/14, 7/12, 9/27, 12/19, 1/5/18
Governmental Accounting & Auditing Update
7/19, 8/9, 9/6, 12/20, 1/9/18
Financial Statement Preparation, Compilation, and Review Update
8/30, 9/21, 10/25, 12/22, 1/10/18, 1/17/18
Business Fraud Update
9/20, 10/11, 10/19, 11/9, 12/18, 1/11/18
Accounting & Auditing Update
10/18, 11/22, 12/27, 1/16/18, 1/23/18
CPA’s Guide: Purchase and Sale of a Business
11/15, 12/6, 12/28, 1/18, 1/24
Annual Tax Update
12/13, 12/26, 12/29, 1/12/18, 1/19/18, 1/15/18
Check out the ACPEN CPE catalog for more info on these and other topics.
CYBER Monday–is for Accountants too!
November 28, 2016
Cyber Monday madness is upon us! And while we traditionally think of this day as a time to feverishly purchase toys for our children, clothing (mostly for myself), jewelry for our spouses–let us not overlook this amazing opportunity to purchase THE BEST online CPE at an unbelievable price.
That is correct! Right now, you can buy any ACPEN course (or, heck–make it courses!) for 40% off retail price. So–let’s be honest. We know that there are some of you out there who are in desperate need of CPE. End of the year filing dates loom for some of you, or some of you may just want to get some CPE before the hustle and bustle of tax season. Either way, don’t miss out on your chance to buy the best online CPE at the lowest possible prices!
Simply apply code: CMCPE2016 at checkout to receive 40% off of your entire purchase!
Happy Cyber Monday, friends!
ACPEN Brings You–Frontier Accountants!
June 8, 2016
You may now be scratching your head, wondering, “What in the world is a Frontier Accountant?” Turns out that somewhere out in the wild, wild west, there are ranchers and cattle herders who are just dreaming of becoming accountants. It’s like “City Slickers”–in reverse. But why listen to my explanation? A few of these rough and tough cowboys have put together a short video to more accurately express their yearning for a long career in accounting, and, of course, all of those ACPEN webcasts!
And in honor of all of the Frontier Accountants, we invite all of you out there living the dream to apply discount code: FRONTIERACCOUNTING to your next purchase to receive 25% off of your next ACPEN purchase. (Valid on future purchases made through September 30, 2016.)
Ride on, Frontier Accountants!
PS. A big round of applause for our cast!
November 30, 2015
We’re all back in the office. (Boo!) And the end of the year is quickly approaching. But here’s the good news–it’s CYBER MONDAY! And ACPEN is joining the fun.
ACPEN Signature courses are on SALE! Purchase any of our ACPEN Signature offerings (8 hours of the highest quality CPE on the most relevant topics) and receive 35% off!
Apply discount code: acpenCYBERMonday35 at checkout.
This offer is good for any ACPEN Signature course purchased between now and 11:59 p.m. on December 2, 2015! Spread the word. Share with colleagues and friends, and make sure that you don’t miss out on this amazing price for the best online CPE in the business!
Black Friday Fun!
November 27, 2015
It is hard to believe that Black Friday is upon us. We hope that you enjoyed a wonderful Thanksgiving with family and friends! And, we hope that today–Black Friday–you spend your day doing whatever it is that makes you happy. For some, that may be heading out at 4 a.m. to find the perfect gifts (at an awesome price) for your loved ones. For others, (like me) that may be eating left overs and watching football with their favorite people (Sic ’em Bears!).
However you like to spend your Black Friday, we hope you have a blast! And good news, we too will be offering a Black Friday special. Here’s what you need to do:
1. Visit the ACPEN Catalog!
2. Find the perfect course (or better yet, courses) for you. Remember–December is upon us. Do you have all of your CPE hours?
3. Apply discount code: BlackFridayFun2015 at check out to receive 25% off of your entire order. (valid for purchase on or before 11:59 p.m. on 11/29)
If you’re a Black Friday shopper, buy some discounted CPE. If you are a Black Friday football watcher, you can take advantage of this offer from the comfort of your couch. So have your cake, or pie as the case may be, and eat it too!