If you are a seller making sales for resale to a marketplace operator in this manner, you should obtain a timely and properly completed resale certificate from your customer to support your claimed sales for resale (see Regulation 1668, Sales for Resale). However, if you are a retailer engaged in business in California and you ship the property directly to the consumer on behalf of a marketplace operator that is not engaged in business in California, you will be responsible for reporting and paying tax as a drop shipper. For additional information, please see publication 121, Drop Shipments.
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In cases where the online retailer does not have to collect sales tax, it is the customer’s responsibility to pay the tax—in which case it is known not as a sales tax but, rather, a use tax. The TCPA states on its use tax FAQ page that one of the most common reasons for a purchaser being subject to use tax is purchasing a taxable item from an out-of-state retailer without paying Texas tax and using the property in Texas. The FAQ page goes on to state that if a purchaser purchases merchandise "through a catalog or the Internet from a seller located outside of Texas and use[s] the taxable item in Texas," then the purchaser owes use tax on the purchase. You can find more formal guidance about the use tax in Rule 3.346 if the Texas Administrative Code.
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Update: Below is an article on the Internet sales tax rules for this state prior to the Supreme Court's decision in South Dakota v. Wayfair Inc. on June 21, 2018. The Wayfair decision overturned the prior rule established in Quill Corporation v. North Dakota which prohibited states from requiring a business to collect sales tax unless the business had a physical presence in the state. Some states already had laws prior to the Wayfair decision (commonly referred to as Amazon Laws) that require larger Internet sellers without a physical presence in the state to collect and pay sales tax under certain circumstances. It is expected that states will now pass new laws requiring online retailers to collect sales tax for sales within their state. We will update this article as the laws change. For more information, see Internet Sales Tax: A 50-State Guide to State Laws.
The Wayfair ruling could also have wide-ranging consequences for marketplaces such as Amazon and Etsy, where the companies already collect sales tax on their own products, but not on behalf of third-party sellers. This brings up the question of whether marketplaces will now step in to absorb the cost of collecting sales tax on behalf of partner retailers. In some states, notes Barrett, "marketplace facilitator legislation would require the Amazons and the Etsys to collect sales tax on their behalf. In some respects, that would be easier for the smaller sellers," she adds. Still, it's conceivable that marketplaces could refuse to do so in other states--or sell hefty compliance assistance packages that would hurt their sellers, she suggests.
Private corporations use Internet marketing techniques to reach new customers by providing easy-to-access information about their products. The most important element is a website that informs the audience about the company and its products, but many corporations also integrate interactive elements like social networking sites and email newsletters.
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Not least of those is Amazon, a large part of whose business consists of sales made through other merchants operating on the site. While the e-commerce giant collects sales tax on all items it sells directly, third-party purchases are taxed in just two states, Washington and Pennsylvania. Those purchases could make up a third or more of Amazon's revenue, by some estimates.
Offering tangible personal property for sale on an online marketplace will generally not, by itself, cause an out-of-state retailer to be engaged in business in California, even if the marketplace operator is located in California. Generally, the use by an out-of-state retailer of a website hosted on servers located in California will not cause the retailer to be engaged in business in California. However, an out-of-state retailer that stores tangible personal property in California, including at a fulfillment center owned and operated by a third-party is engaged in business in California.
Several states have crafted internet sales tax legislation, which has produced lawsuits by online sellers like Wayfair and Overstock. As a test case, South Dakota has petitioned the U.S. Supreme Court to revisit the Quill case. Specifically, S. Dakota asked the U.S. Supreme Court "to overrule Quill’s physical-presence requirement which currently prevents the State from requiring out-of-state retailers to remit taxes for sales made within South Dakota."
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None of them ever passed, though. With the Supreme Court stepping into the fray on the Wayfair decision, it’s unlikely the federal government will be too anxious to dive back into this issue anytime soon. That said, as states get increasingly aggressive in their sales tax collection strategies, legal experts expect a long road of litigation and legislative changes ahead. That could provoke federal lawmakers to get involved.
You do not need to collect sales tax on items you deliver directly to out-of-state locations. To document such a sale, your records must include proof of delivery, such as a bill of lading, a shipping invoice or a postal receipt. You may have to collect tax in another state if you are engaged in business there. You should contact the states where you buy or ship merchandise to find out if you are responsible for paying or collecting their taxes. The Multistate Tax Commission has a useful website at http://www.mtc.gov with links to the tax websites of other states.
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