Utah Letter Ruling Discusses Gift Code Sales and Affiliate Nexus

Utah has issued a private letter ruling regardingthe taxability of gift codes, affiliate nexus and sales and use tax registration requirements. Out-of-state online retailers affiliated with an out-of-state company that sells gift codes to Utah consumers are not required to collect and remit tax on their separate sales of property to Utah consumers because the online retailers engage in business from facilities located outside of Utah. The online retailers do not have to register in Utah under the affiliate nexus rules. Retailers are only required to collect and remit tax based on another entity’s presence in Utah if the other entity is a related seller under Utah law and has a certain ownership relationship with the online retailers. The company in question and its website operator are not related sellers as they do not have a place of business in Utah. The retail establishments, other online retailers, the gift card processor and the wholesalers are located in Utah, but they do not have the requisite ownership relationships with the online retailers. Sales of gift codes by the out-of-state company directly to Utah consumers online are not taxable as they are considered intangible rights that represent a form of payment and are not tangible personal property or a taxable service. Therefore the company is not required to register to collect and remit sales and use tax. The ruling notes that none of the above conclusions would change if the company were to sell the gift codes directly to retail establishments in Utah. Currently, the company sells gift codes through wholesalers. (Private Letter Ruling, Opinion No. 12-010, Utah State Tax Commission, February 8, 2013)

Posted on March 26, 2013