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On December 16, 2014, President Barack Obama signed the Consolidated and Further Continuing Appropriations Act, 2015, for sales and use tax purposes. The Act includes a provision that extends the Internet Tax Freedom Act (ITFA) until October 1, 2015 with all provisions unchanged.

 

On January 9, 2015, the House of Representative introduced a bill (un-numbered) that would permanently extend the ITFA, banning states and local jurisdictions from imposing any new tax on internet access. The proposed bill removes the current effective dates of November 1, 2003 through October 1, 2015 and changes the effective date to be effective for new taxes imposed after the date of the enactment.  It is not clear if states that have been grandfathered under the existing provision could retain their current tax on internet access but it appears that may be the case.  No formal legislation has been introduced that would incorporate the Marketplace Fairness Act into this bill. The bill is sponsored by House Judiciary Committee Chairman Bob Goodlatte, among others.

 

For our previous news item on this topic, see Internet Tax Freedom Act is Extended Through December 11, 2014.

 

For an update on this news item, see Internet Tax Freedom Act Extended Until December 11, 2015.

 

(Consolidated and Further Continuing Appropriations Act, 2015; H.R. 235)

(02/12/2015)

President Barack Obama has signed federal legislation extending the Internet Tax Freedom Act (ITFA) through December 11, 2014 as part of the joint resolution which made continuing appropriations for fiscal year 2015. The ITFA was previously set to expire on November 1, 2014. The ITFA bars state and local governments from imposing multiple or discriminatory taxes on electronic commerce and taxes on Internet access.

 

For an update to this news item, see Internet Tax Freedom Act Extended Until October 1, 2015, Permanent Extension Introduced.

 

(P.L. 113-164 (H.J. Res. 124), 113th Congress, 2nd Session, Laws 2014)

(09/26/2014)

The Streamlined Sales and Use Tax (SST) Governing Board has  issued a best practices matrix which provides answers to whether the state follows the best practices set forth in the SST Agreement regarding deal-of-the-day vouchers. All SST Member states are to complete and publish their position on the best practices.  The matrix outlines if the “best practiceas approved by the Streamlined Sales Tax Governing Board (SSTGB) for each of the products, procedures, services, or transactions identified in the chartis followed by the specific state. The following best practice descriptions are listed in the matrix along with whether the state follows the best practice:

 

1.       The member state administers the difference between the value of a voucher allowed by the seller and the amount the purchaser paid for the voucher as a discount that is not included in the sales price (i.e., same treatment as a seller’s in-store coupon), provided the seller is not reimbursed by a third party, in money or otherwise, for some or all of that difference.

2.       The member state provides that when the discount on a voucher will be fully reimbursed by a third party the seller is to use the face value of the voucher (i.e., same as the treatment of a manufacturer's coupon) and not the price paid by the purchaser as the measure (sales price) that is subject to tax.

3.       The member state provides that costs and expenses of the seller are not deductible from the sales price and are included in the measure (sales price) that is subject to tax. Further, reductions in the amount of consideration received by the seller from the third party that issued, marketed, or distributed the vouchers, such as advertising or marketing expenses, are costs or expenses of the seller.

 

Unless otherwise listed below, the SST member states have published the Best Practices Matrix and follow the three best practices listed above.

 

The following SST member states have issued the matrix but don’t follow some or all of the best practices listed above as of April 2014: Georgia, Kansas, Nebraska, New Jersey, and Ohio.

 

The following SST member states have not yet issued the matrix as of April 2014: Tennessee, Utah, Vermont, and Wyoming.  Copies of the matrix can be found on each specific state information page on the SST Web page at http://www.streamlinedsalestax.org/index.php?page=state-info.

(05/06/2014)

Wisconsin has issued revised guidance on the sales and use tax treatment of computer hardware, software, and services to clarify that Software as a Service (SaaS) and Application Service Provider (ASP) services are not taxable unless the service provider is providing a taxable service in the transaction (e.g. telecommunications message service). To view common questions and answers on the sales and use tax treatment of the above, click here to visit the Wisconsin Department of Revenue’s webpage. (Common Questions—Sales and Use Tax Treatment—Computer Hardware, Software, Services, and Email, Wisconsin Department of Revenue, August 15, 2013)

(05/06/2014)

According to a Wisconsin Court of Appeals, an installer was liable for Wisconsin sales and use tax on materials that it installed for exempt entities that were purchased by the exempt entities from the installer’s sister company. Wisconsin law allows contractors to use resale exemption certificates only for property that the contractor has sound reason to believe it will sell to customers for whom it will not perform real property construction activities involving the use of the property. In this case, the materials were purchased by the installer from third parties using a resale certificate. The installer paid no sales tax on these purchases. The exempt entities issued one purchase order to the installer for installation services and another purchase order to the installer’s sister company for materials. The installer then used the materials in real property construction activities for the exempt entities. The installer recorded the installed materials as having been transferred from its inventory to its sister company, at the installer’s cost, as part of its journal entries. Neither the installer nor its sister company collected sales tax or remitted use tax on any of the transactions with the exempt entities. The Court of Appeals affirmed the decision of the Circuit Court, which upheld the decision of the Tax Appeals Commission. The Commission had found that the sister company did not qualify as the installer’s customer. The Commission also found that the installer-sister company-customer transactions lacked any economic substance or business purpose. As a result, the Commission determined that the materials installed for the exempt entities were subject to use tax by the installer as a contractor. (Sullivan Brothers, Inc. v. Wisconsin Department of Revenue, Court of Appeals of Wisconsin, District IV, No. 2013AP818, January 30, 2014)

(04/11/2014)

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