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West Virginia has issued a Technical Assistance Advisory that modifies previously issued TAA 99-002 and TAA 2005-02 issued to a taxpayer with respect to the sales and use tax collection obligations for a retailer owned by a certain parent corporation and the third-party merchants for which another subsidiary of the parent engages in business in West Virginia in connection with the retailer and merchants. The advisory states that effective October 1, 2013, the retailer and the merchants are required to collect West Virginia use tax on sales of the merchants’ and retailer’s goods to West Virginia customers. Previously, the retailer and the merchants were not required to collect sales or use tax as long as they lacked physical presence in-state, did not make sales to West Virginia customers, or did not otherwise engage in activities creating nexus with West Virginia.(Technical Assistance Advisory 2013-002, West Virginia State Tax Department, August 30, 2013)

(09/16/2013)

Effective July 1, 2013, West Virginia state and local sales and use taxes do not apply to purchases of "food and food ingredients.” A phaseout of the 6% “food tax” was initiated in 2006.  State and local sales and use taxes continue to apply to purchases of soft drinks, prepared food, food sold in a heated state, food sold with eating utensils provided by the seller, and vending machine food.(Press Release, West Virginia Gov. Earl Ray Tomblin, July 1, 2013)

(07/22/2013)

West Virginia has enacted legislation that adds affiliate nexus provisions to the use tax article of the West Virginia Code. Effective January 1, 2014, the legislation expands the definition of "retailer engaging in business in this state", to include any retailer that is related to, or part of a "unitary business" with, a person, entity, or business that, without regard to whether the retailer is admitted to do business in West Virginia, is a subsidiary of the retailer, or is related to or unitary with the retailer as a "related entity," a "related member," or part of a "unitary business" that (1) under an agreement with (or in cooperation with) the related retailer, maintains an office, distribution house, sales house, warehouse or other place of business in West Virginia; (2) performs a "service" in-state in connection with tangible personal property or services sold by the retailer or any related entity, related member, or part of the unitary business; (3) by an agent, representative (regardless of name called), or employee, performs a service in-state in connection with tangible personal property or services sold by the retailer or any related entity, related member, or part of the unitary business; or (4) directly, or through or by an agent, representative, or employee located in (or present in) West Virginia, solicits business in the state for or on behalf of the retailer or any related entity, related member, or part of the unitary business. Per the definition in the state’s Corporation Net Income Tax Act, "Unitary business" means a single economic enterprise made up of separate parts of (1) a single business entity; or (2) a commonly controlled group of business entities that are sufficiently interdependent, integrated, and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts. (H.B. 2754, Laws 2013)

(05/23/2013)

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)

The consumers’ sales and service tax rate on food purchases and uses of food and food ingredients for human consumption is reduced from 3% to 2% on January 1, 2012. The rate will be further reduced to 1% on July 1, 2012. The tax will be eliminated on July 1, 2013, provided that the balance in the state’s Revenue Shortfall Reserve Fund on December 31, 2012 is at least 12.5% of the General Revenue Fund budgeted for the fiscal year beginning July 1, 2012. If the tax is not eliminated on July 1, 2013, it will be eliminated on July 1 of any calendar year from 2014 forward during which the balance of the Revenue Shortfall Reserve Fund as of December 31 of the preceding fiscal year is at least 12.5% of the General Revenue Fund budgeted for the following year. Nothing in the legislation affects application of the tax exemption for food purchased by an eligible person using food stamps, electronic benefits transfer cards or vouchers issued to individuals participating in the Federal Food Stamp Program or the Women, Infants and Children (WIC) program. (S.B. 1001, Laws 2011, 1st Special Session)

(05/21/2012)

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