Multistate: More Wayfair Related Developments

State lawmakers continue to enact legislation and issue guidance in response to the U.S. Supreme Court’s decision in South Dakota v. Wayfair. This week includes WI and MD.

Podcast Transcript

State taxing authorities continue to issue guidance on recently-enacted remote seller and marketplace nexus laws. The Wisconsin Department of Revenue has issued proposed FAQs for marketplace providers and marketplace sellers. In the proposed FAQs, the Department takes the position that the marketplace sales and use tax collection obligations are effective on or after October 1, 2018, rather than January 1, 2020 (the date the marketplace law goes into effect). According to the Department, the law change effective January 1, 2020 merely clarified that marketplace providers were required to collect tax, a position the Department had taken guidance issued prior to the passage of the legislation. The proposed FAQs further provide that marketplace providers will be responsible for not only the state sales and use tax, but also county and stadium sales and use taxes. Moreover, a marketplace provider may also be required to collect premier resort area taxes, local exposition taxes, and the state rental vehicle fee. The tax base upon which a marketplace provider must collect is the entire amount charged to the purchaser, including any amounts charged by the marketplace provider for facilitating the sale. Information in the FAQs also addresses registration, document retention, filing returns, requests for waivers, and claiming a bad debt deduction.

The Comptroller of Maryland issued Tax Alert 09-19 providing guidance on the tax collection obligations of marketplace facilitators. The Alert provides that the term “marketplace facilitator” does not include internet advertising service providers, payment processors, peer-to-peer car sharing programs, and delivery services companies that deliver tangible personal property. For purpose of the economic nexus thresholds, the guidance requires that marketplace facilitators account for both taxable and nontaxable sales and all sales made directly by the marketplace and facilitated on behalf of a marketplace seller. The guidance also contains information on registering and reporting sales, requests for waivers, and the procedures for dealing with returned or cancelled orders. Please stay tuned to TWIST for additional Wayfair-related updates.

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