Multistate: More State Responses to Wayfair

State lawmakers continue to enact legislation in response to the U.S. Supreme Court’s decision in South Dakota v. Wayfair. A rapidly increasing number are imposing the tax collection obligation on what they are terming “marketplace facilitators” or “marketplace providers.”  Recently, Nevada Assembly Bill 445 was signed, which adopts economic nexus provisions that apply to marketplaces. The bill provides that effective October 1, 2019, a marketplace facilitator is required to collect and remit sales and use tax if, during the current and previous calendar year, it has cumulative gross receipts exceeding $100,000 or 200 or more separate retail sales transactions. The bill also authorizes the Department of Taxation to adopt regulations imposing a collect-or-report obligation for referrers that exceed the economic nexus thresholds.

In other news, House Bill 547 was signed into law in Louisiana clarifying the authority of the Louisiana Sales and Use Tax Commission for Remote Sellers to require remote sellers to collect as a result of the Wayfair decision. Because the Commission has yet to set a date on which remote sellers must start collecting, House Bill 547 requires the Commission to set an enforcement date of no later than July 1, 2020 and publish a notice of enforcement no later than 30 days prior to the enforcement date. Finally, House Bill 547 amends the definition of “remote seller” to mean “a seller who sells for sale at retail, use, consumption, distribution, or for storage to be used for consumption or distribution any taxable tangible personal property, products transferred electronically, or services for delivery within Louisiana, but does not have physical presence in Louisiana, and is not considered a dealer.”

In New Hampshire, one of five states with no sales and use tax, Senate Bill 242, which has passed in both houses of the legislature and now awaits the Governor’s signature, highlights the state’s opposition to the Wayfair decision. If enacted, Senate Bill 242 would prohibit other taxing jurisdictions from taking an action or imposing a sales tax collection obligation on New Hampshire sellers that lack a physical presence in that jurisdiction unless the taxing jurisdiction provides written notice to the New Hampshire Department of Justice 45 days prior to taking such action. The bill would also require New Hampshire sellers to notify the Department of Justice of any request from another taxing jurisdiction for private consumer information. However, the bill would allow New Hampshire remote sellers to comply with the other taxing jurisdictions directive or request, if the seller finds it to be in its best interest. The New Hampshire legislature believes this revised version of Senate Bill 242 will not have constitutional implications. The act would take effect immediately upon its passage.  Please stay tuned to TWIST for additional Wayfair updates.