6 Steps to Help You Find Your Way After Wayfair

For remote retailers, marketplace providers and many other sellers, the world changed dramatically June 21, when the U.S. Supreme Court decided internet retailers can be required to collect sales taxes in states even where they have no physical presence. This overturned the Court’s 1967 Bellas Hess and 1992 Quill decisions acknowledging the realities of our now fully digital economy.

As a result of the ruling, millions more online shoppers will likely be required to start paying state sales tax when they make purchases, because many online retailers, marketplace providers and international sellers will need to begin collecting and remitting those taxes.

Equally important, complying with the Court’s ruling will likely have a substantial impact on companies in terms of time, technology and expense. Businesses in Colorado and across the U.S. will now need to closely examine and retrofit their operations to determine where they have to collect tax, whether their goods are taxable and how they are going to handle the new tax computation, filing and remittance obligations.

What does all that mean for day-to-day operations? First of all, companies will need to be ready to modify their current indirect tax compliance and accounting approaches and infrastructure. They’ll likely need a system capable of tracking delivery locations, determining taxability, identifying tax rates, ensuring appropriate accounting and providing information required to file returns in several jurisdictions.

Determining the right fit will take some time and careful consideration, and there won’t be an easy “one size fits all” approach. Each business is unique, so will need to determine its own approach to sales tax compliance.

A POST-WAYFAIR ACTION PLAN

The following list could serve as a roadmap for next steps that may help companies prepare for the new state tax landscape:

1. Review business activities to determine where filing obligations may now exist.
2. Review the potential business implications, including additional costs related to technology updates and the increased compliance requirements, and discuss the results with key internal stakeholders.
3. Analyze the potential taxability of products and services in jurisdictions where they could now be required to collect the taxes, including current invoicing methods that may bundle taxable and nontaxable products.
4. Determine whether current technology and personnel resources can support increased tax-related analysis, compliance, document retention and audit activity.
5. Develop a plan for maintaining sales tax compliance, including the potential use of third-party service providers.
6. Consider how the company will monitor sales tax changes (such as tax rates, law changes and procedural issues) in relevant jurisdictions.

HOW SOON COULD THE TAX MAN COME?

Every jurisdiction may not begin requiring tax collection immediately, but some states and municipalities could move within the next 60 to 90 days.  

So far, 15 states have enacted a law or adopted regulation with a nexus standard, similar to South Dakota’s, that would require sellers who have some volume of receipts or number of transactions in-state to collect tax on sales into the state, even if they lack a physical presence there. These standards take effect on various dates and some are the subject of prior, still unresolved litigation at the state level.

Another group of states has existing “doing business” statutes that are broad enough to encompass an economic nexus approach, but were not enforced in that broad manner because of the Quill standard. We would expect those states to provide guidance to taxpayers and perhaps seek legislation or a rulemaking before attempting to apply the Wayfair approach.

Finally, other states would seem to require state legislative or regulatory action prior to imposing an economic nexus approach.

Regardless of the current legislative framework, it’s reasonable to expect over the next year nearly every state with a sales tax is likely to adopt a nexus standard of this sort or take some other approach to requiring sellers without a physical presence to collect tax.

As changes take place, retailers and the states should also keep an eye on possible Congressional efforts to pass legislation that sets a national standard to reflect the new reality of online and remote commerce. This issue has been before Congress for at least three decades, with no consensus reached or approach developed, but it’s possible that the Court’s Wayfair decision may add some urgency to the discussion.

This article represents the views of Stephen Metz only, and does not necessarily represent the views or professional advice of KPMG LLP. Metz is the senior manager, tax at Denver KPMG LLP.
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