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Missouri has enacted legislation that adds click-through and affiliate nexus provisions.  The legislation creates the presumption that a vendor is engaging in business activities in Missouri if any person with substantial nexus with Missouri performs certain activities in relation to the remote vendor within the state, including: sells a similar line of products under a similar business name; maintains a place of business that facilitates the delivery of property or services sold by the vendor or allows the vendor’s customers to pick up property sold by the vendor; delivers, installs, assembles, or performs maintenance services for the vendor’s customers in the state; or conducts any other activities in the state that are significantly associated with the vendor’s ability to maintain a market in the state. The presumption is rebuttable by showing that the person’s activities are not significantly associated with the vendor’s ability to maintain a market in Missouri. An additional presumption is created that a vendor is engaged in business activities in Missouri if the vendor enters into an agreement with a Missouri resident under which the resident, for a commission or other consideration, refers customers to the vendor, whether by a link on a website, an in-person presentation, telemarketing or otherwise, and the vendor’s cumulative gross receipts from sales to all Missouri customers referred by residents with such an agreement exceed $10,000 in the preceding 12 months. This presumption is rebuttable by showing that the Missouri resident did not engage in activity within Missouri that was significantly associated with the vendor's market in Missouri in the preceding 12 months. (S.B. 23, Laws 2013, effective August 28, 2013, except as noted)

(07/22/2013)

The Missouri Senate has passed a bill that would require the Department of Revenue to enter into the Streamlined Sales and Use Tax (SST) Agreement. The Department would be required to enter into the SST Agreement, effective January 1, 2015. Specifically, the bill would provide for the following: Cities imposing sales taxes would be required to notify the department within 10 days of changing their boundaries. Any sales tax changes due to a boundary change would take effect on the first day of the calendar quarter 120 days after the department receives notice of the change; When a political subdivision changes its local sales tax rate or taxing boundary, such change would take effect on the first day of the calendar quarter 120 days after the department receives notice of the change; All state and local sales taxes would be required to have the same basis by requiring identical exemptions at the state and local level; Uniform sourcing rules would be required; Political subdivisions would be prohibited from opting out of sales tax holidays; The department would be required to participate in an online registration system for sales tax collection. Registration in the system could not be used as a factor to determine nexus with the state. The department would be required to accept electronic payments; The department would be required to provide electronic databases for taxing jurisdiction boundary changes, tax rates, and a taxability matrix detailing taxable property and services. Sellers would be relieved from liability if they fail to properly collect tax based upon certain information provided by the department; Amnesty would be available for sellers under certain circumstances following registration with the state; Monetary allowances would be provided to sellers and certified service providers for collecting and remitting state and local taxes equal to 2% of the taxes collected; and for products that are bundled, with one item being taxable and the other nontaxable, the entire product would be subject to taxation unless the provider could properly identify the nontaxable portion. For products that are bundled items with different tax rates, the highest tax rate would be used for the entire product unless the provider could properly identify the lower-taxed item. The provisions in this bill are similar to provisions in the bill S.B. 26. At this time, it does not appear that this bill will be passed during the 2013 regular legislative session.  We will continue to monitor the activities. (H.B. 253, as passed by the Missouri Senate on May 8, 2013)

(06/12/2013)

The federal Marketplace Fairness Act of 2013 was introduced in the House of Representatives and the Senate on February 14, 2013.  If passed, the bill would authorize states that meet certain requirements to require remote sellers that do not meet a "small seller exception" to collect their state and local sales and use taxes.  Under the legislation, a state would be authorized to require a remote seller to collect sales and use taxes only if the remote seller has gross annual receipts in total remote sales in the United States of more than $1 million in the preceding calendar year.

 

Member states of the Streamlined Sales and Use Tax (SST) Agreement would be authorized to require all sellers that do not qualify for the small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to that member state pursuant to the provisions of the SST Agreement. The SST Agreement would have to include certain minimum simplification requirements. An SST member state could begin to exercise authority under the Act beginning 90 days after the state publishes notice of its intent to exercise such authority, but no earlier than the first day of the calendar quarter that is at least 90 days after the date of the enactment of the Act.

 

States that are not members of the SST Agreement would be authorized, notwithstanding any other provision of law, to require all sellers that do not qualify for the small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to the state if the state implements certain minimum simplification requirements. The authority would begin no earlier than the first day of the calendar quarter that is at least six months after the state enacts legislation to exercise the authority granted by the Act.

 

To enforce collection requirements on remote sellers that do not meet the small seller exception, states that are not members of the SST Agreement would have to implement the minimum simplification requirements listed below. For SST member states to have collection authority, the requirements would have to be included in the SST Agreement.

 

-       A single entity within the state responsible for all state and local sales and use tax administration, return processing, and audits for remote sales sourced to the state

-       A single audit of a remote seller for all state and local taxing jurisdictions within that state

-       A single sales and use tax return to be used by remote sellers to be filed with the single entity responsible for tax administration.

-       Each state would have to provide a uniform sales and use tax base among the state and the local taxing jurisdictions within the state.

-       Each state would have to source all interstate sales in compliance with the sourcing definition outlined below.

-       Each state would have to provide information indicating the taxability of products and services along with any product and service exemptions from sales and use tax in the state and a rates and boundary database. States would have to provide free software for remote sellers that calculates sales and use taxes due on each transaction at the time the transaction is completed, that files sales and use tax returns, and that is updated to reflect state and local rate changes. States would also have to provide certification procedures for persons to be approved as certified software providers (CSPs). Such CSPs would have to be capable of calculating and filing sales and use taxes in all the states qualified under the Act.

-       Each state would have to relieve remote sellers from liability to the state or locality for incorrect collection, remittance, or noncollection of sales and use taxes, including any penalties or interest, if the liability is the result of an error or omission made by a CSP.

-       Each state would have to relieve CSPs from liability to the state or locality for the incorrect collection, remittance, or noncollection of sales and use taxes, including any penalties or interest, if the liability is the result of misleading or inaccurate information provided by a remote seller.

-       Each state would have to relieve remote sellers and CSPs from liability to the state or locality for incorrect collection, remittance, or noncollection of sales and use taxes, including any penalties or interest, if the liability is the result of incorrect information or software provided by the state.

-       Each state would have to provide remote sellers and CSPs with 90 days’ notice of a rate change by the state or any locality in the state and update the taxability and exemption information and rate and boundary databases, and would have to relieve any remote seller or CSP from liability for collecting sales and use taxes at the immediately preceding effective rate during the 90-day notice period if the required notice is not provided.

 

For non-SST member states, the location to which a remote sale is sourced would be the location where the item sold is received by the purchaser, based on the location indicated by instructions for delivery. When no delivery location is specified, the remote sale is sourced to the customer's address that is either known to the seller or, if not known, obtained by the seller during the transaction, including the address of the customer's payment instrument if no other address is available. If an address is unknown and a billing address cannot be obtained, the remote sale is sourced to the address of the seller from which the remote sale was made. SST member states would be required to comply with the sourcing provisions of the SST Agreement.

 

On March 22, 2013, the U.S. Senate voted 75-to-24 in favor of the concept of the Marketplace Fairness Act. The actual Marketplace Fairness Act was introduced in both chambers in February, but last week Senator Enzi, the sponsor of the Senate bill, offered an amendment to the 2014 Budget Resolution that would include insertion of the language of Marketplace Fairness in the budget. It was a largely symbolic tactic since the Budget Resolution itself will not become law, but by approving the amendment, the Senate has shown that there is broad, bipartisan support for the notion of requiring remote sellers to collect sales tax.

 

On May 6, 2013, the U.S. Senate passed the Marketplace Fairness Act with a 69-27 vote.

 

UPDATE: On September 18, 2013, Rep. Bob Goodlatte, the chairman of the House Judiciary Committee released a set of seven principles that he believes any internet sales tax bill should meet.  The seven principles outlined by Goodlatte are tax relief, tech neutrality, no regulation without representation, simplicity, tax competition, states’ rights, and privacy rights.  For more details on the principles, click here to see the House Judiciary Committee’s press release.

 

We are continuing to track the activities of these bills.  We are also involved in planning efforts involving states and businesses regarding the potential implementation consequences of passage.  Watch for updates in the Sales Tax Compass as well as through our Twitter account and LinkedIn updates. 

 

The text of the bill passed by the Senate can be viewed here.

 

For an update on this news item, visit Senate Introduces Marketplace Fairness Act of 2015.

 

(H.R. 684 and S. 336, as introduced in Congress on February 14, 2013; S.743, as passed by the U.S. Senate on May 6, 2013)

(09/20/2013)

A commercial printer’s separately stated mailing service and separately stated postage charges are not subject to Missouri sales tax.  If requested by customers, the printer’s direct mail service can deliver materials via the U.S. Postal Service to home and business addresses in Missouri.  The printer separately states the charges for this mailing service and the postage charge on its invoices to customers. Customers are not obligated to purchase the mailing service from the printer. The mailing service provided by the taxpayer is not a taxable service under Missouri tax law.  The postage charge is also not subject to sales tax. As a result, these separately stated charges are not subject to sales tax. (Letter Ruling No. LR 7204, Missouri Department of Revenue, December 19, 2012)

(03/26/2013)

Missouri has enacted legislation stating that purchasers who have paid Missouri sales or use tax to a vendor or seller may submit a refund claim directly to the Department of Revenue if the taxes have been remitted to the department by the vendor or seller, if certain conditions have been met. The department cannot require vendors, sellers, or purchasers to submit an amended return for a refund claim made under the new provisions. Purchasers must be entitled to appeal a refund denial within 60 days from the date the department mailed the notice. This provision applies for all refund claims filed after August 28, 2012.

In addition, for any refund claims related to the exemption for electronic delivery or transmission of computer software, purchasers can file an appeal of the department’s decision to deny a refund claim if the appeal is filed by September 28, 2012 for a refund denied on or after January 1, 2007. (H.B. 1504, Laws 2012, effective August 28, 2012)

(07/24/2012)

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