It’s become an annual rite of spring, at least for me—the release of Bloomberg BNA’s survey of state tax departments. The survey, Bloomberg BNA’s 13th annual survey, asks questions aimed at clarifying each state’s position on the gray areas of corporate income and sales and use tax administration. Although nexus isn’t the only topic, it has been one of the main emphases of the survey.
This year’s survey found that nexus, the minimum amount of contact between a taxpayer and a state that would allow a state to impose tax, remains widely variable between states both for income tax nexus and sales tax nexus, according to Steven Roll, assistant managing editor of state tax at Bloomberg BNA.
Since state tax nexus can change from year to year as a result of administrative change, legislation or litigation, it can come as a surprise to even seasoned tax practitioners. Therefore it’s instructive to take a look at some of the areas in which the scope of nexus is increasing.
Every state participated in this year’s survey, which included the nexus consequences of Internet servers, alternative work arrangements, and transactions involving non-U.S. entities. The sales tax policy portion of the survey asked about sourcing rules, the treatment of social media coupons, and the extent to which each state conforms to the Streamlined Sales and Use Tax Agreement as of Jan. 1, 2013.
Among other findings, the survey found that reimbursing sales staff for the costs of maintaining an in-home office would trigger income tax nexus in 25 states. Soliciting services for six or fewer days would trigger nexus in every state but Hawaii, Massachusetts, Oklahoma, Rhode Island, Vermont and Virginia. Attending a trade show for 14 or fewer days is enough to trigger nexus in nine states, although California, New York City and Texas each said they had a special exclusion for trade show participants. Conducting job fairs, hiring events or other recruitment activities would trigger nexus in 20 states.
Income tax nexus also would result from owning a Web server in their jurisdiction, according to 36 states and the District of Columbia. Several of these jurisdictions said they would find nexus even if the corporation did not make sales into the state. Twenty-six jurisdictions would find nexus for an out-of-state corporation that leased space on a third-party’s Internet server located within their borders.
Twenty-nine states said sales tax nexus would result for a corporation that makes remote sales into the state and stores and ships items from an in-state distribution center. States reaching the opposite conclusions were Indiana, Maine, Nevada, Vermont and West Virginia. Eighteen states—one less than last year—said a remote vendor that enters into affiliate agreements with one or more residents in the state would trigger nexus if sales attributable to all such arrangements totaled $10,000 or more.
For Roll, one of the surprising results of the survey is the number of states that extend Public Law 86-272 protection to non-U.S. entities. “This is federal law that says states are not allowed to tax out-of-state corporations whose only activities in state are soliciting orders for tangible personal property,” he explained.
With the increasing likelihood that the Marketplace Fairness Act will be enacted, Roll noted that the states would first have to simplify their sales and use tax regimes in accordance with federal law, and only then would they be allowed to collect sales tax from remote retailers.
“There is an express provision in the law that says it has no effect on nexus,” he noted. For example, if a remote seller collects sales tax, it would have no impact on income tax nexus or any other kind of nexus.”