Congress Introduces a Hybrid Solution: The Marketplace Fairness Act

Earlier this month, we saw the introduction of yet another federal on-line sales tax bill. That’s right, on November 9^th, S. 1832, “The Marketplace Fairness Act” was introduced in the Senate by Mike Enzi (R-Wy), Lamar Alexander (R-TN), Dick Durbin (D-IL) and seven other bi-partisan Senators. By the way, that’s the same Dick Durbin that introduced the Senate version of the Marketplace Fairness Act (S. 1452) this past July.

What this means is that we now have three competing federal bills, all which seek to grant States the authority to mandate out-of-state (“remote”) sellers to collect sales tax on sales to in-state customers, regardless of whether such remote sellers have sales tax nexus to the state.

To quickly recap, the first of these bills were introduced on July 29^th, when Congressional Democrats in both the U.S. Senate and House of Representatives introduced the Durbin bill (S. 1452), and the Conyers bill (H.R. 2701). Both bills read identically and go by the same “Main Street Fairness Act” title. Then, on October 12^th  H.R. 3179, “The Marketplace Equity Act”, an alternative remote seller collection bill, was introduced by U.S. Representatives Jackie Speier (D-CA) and Steve Womack (R-AK). Although the “Marketplace Equity Act” was a bi-partisan effort, the legislation was criticized for being crafted too quickly and surrendering Quill protection without demanding adequate simplification.

I compared the Mainstreet Fairness Act (“MFSA”) to the Marketplace Equity Act (“MEA”) in my October 31st post and noted that neither proposal offered an ideal solution or appeared to have the level of support needed to pass. The MFSA, which extends its remote seller collection authority only to Streamlined Sales & Use Tax Agreement (“SSUTA”) full-member states, lacked Federal Republican support. The MEA, though a bi-partisan effort, was criticized for completely ignoring the efforts of the SSUTA, creating its own simplification requirements and leaving SSUTA states, who had already implemented simplification measures, to have to abide by a new set of rules.

S. 1832, The Marketplace Fairness Act

Some would say that it’s because of these issues that yet another remote seller collection bill was introduced. TheMarketplace Fairness Act (“MFA”) represents a compromise solution which, like the MSFA, grants remote collection authority to Streamlined Sales Tax (“SST”) full-member states, while also providing a separate set of simplification requirements, like the MEA, for states who wish an alternative to the SSUTA’s requirements.

So what exactly does the MFA say?

The MFA provides that SST full member states may require remote sellers that do not qualify for the small seller exception, to collect and remit sales tax on in-state states beginning on first day of the calendar quarter that is at least 90 days after enactment of the MFA. Because the MFA looks to the provisions of the SSUTA, the MFAdoesn’t elaborate on the SSUTA’s simplification requirements in the actual bill. For instance, because the small seller exception under the current version of the SSUTA provides that businesses with less than $500,000 in revenue per year are exempt from the remote seller requirements, this threshold would apply to states whose remote seller collection authority under the MFA is based on their status as full-member SST states.

States that are not SST full-members, but who adopt and implement the MFA’s alternative simplification requirements would also be authorized to require remote sellers who do not meet the MFA’s small seller exception (as defined in the MFA) to collect taxes on sales sourced to their states in accordance with the sourcing rules detailed in the MFA. To meet the MFA’s alternative simplification requirements, states must provide all of the following:

• a single state-level agency to administer all sales and use tax laws, including the collection and administration of all state and applicable local sales and use taxes for all remote seller sales sourced to the state;
• a single audit for all state and local taxing jurisdictions within the state;
• a single sales and use tax return to be used by remote sellers and by single and consolidated providers and to be filed with the state-level agency;
• a uniform sales and use tax base among the state and its local taxing jurisdictions;
• adequate software and services to remote sellers and single and consolidated providers that identifies the applicable destination rate, including the state and local sales tax rate, to be applied on sales sourced to the state;
• certification procedures for both single and consolidated providers to make software and services available to remote sellers, which include an agreement to hold providers harmless for any errors or omissions as a result of relying on state provided information; and
• 30 days’ notice to remote sellers and single and consolidated providers of local tax rate changes.

In addition to these provisions, a state’s simplification must include a requirement that remote sellers and single and consolidated providers collect sales and use taxes under the applicable destination rate (the sum of the state rate and rate for the local jurisdiction into which the sale is made); agree to hold remote sellers using a single or consolidated provider harmless for any errors and omissions by that provider; and relieve remote sellers from liability (including penalties and interest) to the state or locality for collection of the incorrect amount of sales or use tax if collection of the improper amount is the result of relying on information provided by the state.

States that qualify for remote seller collection authority under these alternative simplification requirements are entitled to this authority “no earlier than the first day of the calendar quarter that is at least 6 months after the date the State enacts legislation to implement the requirements.” In essence, a state would first need to pass legislation giving the state authority to implement the MFA’s alternative simplification requirements and then, would have a minimum of 6 months to put all of the requirements and provisions in place.

Small Seller Exception Under Alternative Simplification Requirements

Remote sellers whose annual gross receipts from total remote U.S. sales were $500,000 or less in the preceding calendar year meet the MFA’s definition of a small seller and are exempt from remote collection responsibilities in states which choose to implement the MFA’s alternative simplification requirements. Although the MFA’s small seller exception is similar to the SSUTA’s $500,000 threshold, because the MFA states that the $500,000 threshold includes gross receipts of related “persons”, as defined in the IRC’s attribution rules under Sec. 276 or 707(b)(1), remote sellers who are part of controlled group of corporations may be less likely to qualify under theMFA’s alternative small seller exception.

Single and Consolidated Providers

One major distinction between the MFA and the predecessor bills is the introduction of “Single and Consolidated Providers”. The MFA defines these “providers” as “any person certified by a State who has the right and responsibilities for sales and use tax administration, collection, remittance, and audits for transactions serviced or processed for the sale of goods or services by remote sellers”. In practical terms, a consolidated provider could be an Internet retailer who collects sales tax on behalf of sellers that use its hosting platform.

Sylvia’s Summation

In my opening thoughts, I asked “Has Congress finally gotten it right?” To that thought I add “Is the Marketplace Fairness Act the silver bullet?”

There’s no question that the issue of whether remote retailers should collect sales tax is perhaps one of the hottest topics in state taxation today! And while there are equally valid arguments about whether remote retailers should be required to collect sales tax or not, the collective clamor that it’s time to “level the playing field” and close the perceived on-line sales “loophole” is undoubtedly creating a momentum not seen in prior years when similar legislation was introduced.

Will this most recent Congressional attempt, which, by retaining the efforts of the Streamlined Sales Tax project and introducing an alternative for States who do not wish to become SST states, be the compromise that passes?  MFA co-sponsor, Lamar Alexander, certainly thinks so.  He’s been quoted as saying “If I were president of an online retailer …… I’d make my plans to start collecting sales taxes wherever I sold things in the United States.”

But will having three competing bills conferred over in the same congressional session work against them all? (According to the most updated information in www.govtrack.us, a site which tracks the status of U.S. bills, all four bills are in “committee”, the first step in the legislative process. The site notes that the majority of bills and resolutions never make it out of committee.)

And what about the concept of “nexus”? The Marketplace Fairness Act states that it has “no effect on nexus” and that the authority granted the Act has no impact “in determining whether a seller or any other person has nexus with any State for any tax purpose other than sales and use taxes”. In essence, nexus will no longer be required for sales and use tax collection purposes, but will be required for other state taxes. But does this open up the possibility that Congressional efforts could be introduced to circumvent nexus for other types of taxes? Seems absurd? I believe anything is possible!

_____________________________________________________________

*The above post is based on Sylvia Dion's SalesTaxSupport.com post, "From Main Street to Marketplace Fairness Acts - Sales Tax 2011", published November 28, 2011. The content from that post has been re-produced in the above post for the benefit of the "Buzz's" readers.

For more about Sylvia's E-Commerce/Internet Sales Tax contributions to the SalesTaxSupport.com blog see side-bar text box.

Follow me on twitter at @SylviaDionCPA. Visit my company website at www.sylviadioncpa.com