Telemarketing Nexus Discussed in Utah

In a private letter ruling, an out-of-state telemarketing firm, with its sole call center in Utah, was determined to have nexus. The Commissioner also concluded that the firm’s clients, who actually sold the service and maintenance contracts, had nexus as well. The telemarketing firm contended that it did not have nexus because its sole activity was solicitation by e-mail and telephone from the call center in Utah. However, the Commissioner found that the taxpayer’s activities were not just limited to solicitation. The maintenance of a call center in Utah also requires either owning or leasing real property, registering with the Department of Commerce, as well as hiring employees. As a result, the combination of both activities was sufficient to create nexus for the firm. The firm also insisted that nexus was not created for its clients because the firm’s solicitation did not establish and maintain a market for the out-of-state clients. This was also denied because the firm is acting as an agent or independent contractor by soliciting sales. In Utah, an agent or independent contractor with nexus acting on behalf of a seller creates taxable nexus for the seller. (Private Letter Ruling, Opinion No. 08-006, Utah State Tax Commission, released May 2009)

Posted on June 8, 2009