CHARLESTON, W.Va. — The West Virginia Retailers Association is pleased with a change of heart by Governor Jim Justice. This week the Justice Administration announced a change in tax policy in which internet companies who do business in the Mountain State will have to collect and remit West Virginia sales tax for online purchases, even though those companies have no brick and mortar presence in the Mountain State. . Earlier this year, Governor Justice announced he would oppose the change out of a concern for putting another burdensome tax on consumers.
Beginning January 1, 2016, sellers of prepaid wireless phone cards and services are required to collect a Prepaid Mobile Telephony Services (MTS) Surcharge from customers and pay it to the BOE for all retail transactions occurring in this state. The surcharge is imposed as a percentage of the sales price of prepaid wireless cards/services sold in retail transactions occurring in this state. If you are an out-of-state retailer, your sales of prepaid wireless services and products to consumers are considered to occur in California when one of the following applies:
And then there is the specter of federal legislation. Congress has introduced no fewer than four different proposals for a federally-governed tax on internet sales. With names like Streamlined Sales Tax Agreement, Click Through Nexus, Marketplace Fairness Act, and the Online Sales Simplification Act of 2015, these proposals were all designed to simplify tax collection for retailers and states by standardizing state-level sales taxes.
Internet sales made by out-of-state retailers to California customers are also treated no differently than other remote sales made to California customers. Generally, remote sales by out-of-state retailers to California customers, whether made over the Internet, by telephone, or mail order, take place outside of California because the property is delivered to a common carrier outside the state for shipment into California, and are, therefore, not subject to sales tax. However, California customers do owe the use tax on those sales, unless a specific tax exemption or exclusion applies. Out-of-state retailers that are engaged in business in California are required to register with the California State Board of Equalization (BOE), collect the use tax from California customers, and pay the tax to the BOE.
Since the 2018 Supreme Court ruling, more and more states are requiring that larger retailers include sales taxes on internet transactions. According to the Associated Press, as of October 1, 2018, 11 states began enforcing their own new regulations, with more in the near future. Most states will require only larger retailers to impose these taxes; this amount will be different for each state. To find out more about the requirements in your state, check with your state's taxing authority.
After years of confusion, the internet sales tax issue was sent to the Supreme Court, in a case called S. Dakota v. Wayfair. In June 2018, the Court ruled for the state of South Dakota, saying that online sellers had an unfair advantage and that states have the right to require online sellers to charge and collect sales tax to buyers in their state.
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But South Dakota, as well as a number of other states, asked the high court to overturn Quill, targeting the online home-goods retailer Wayfair and two other large online retailers with millions of dollars of sales to South Dakotans businesses, arguing that the state was missing out on revenue from online transactions, even though the companies have no physical presence in South Dakota. The Court agreed that the large retailers who were targeted by South Dakota were not protected by the Quill physical presence standard, but in overturning precedent the Court may expose millions of that protected small businesses to the from taxing authorities in other states.
Congress has attempted several times to pass what's been called a Marketplace Fairness Act to solve the problem, with no version making it through the process. The most recent of these acts is in suspension, waiting for the Court's decision. Both bills include exemptions for small sellers and ways to monitor sales tax collections and make the process more fair to all types of sellers.
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Prior to that hearing, FreedomWorks joined with the National Taxpayers Union and a number of other conservative organizations applauding the committee for moving to address the issue. We suggested that Congress needed to take action to protect small businesses with at least a pause in any imposition of sales tax burdens. The letter argued: “First and foremost, Congress should act to stop a mad dash for new cross-border power. Then it can do the difficult but necessary work of establishing a responsible national approach to the vital questions surrounding taxes and the internet.”
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One simplification is already in existence. It has been suggested by a previous Marketplace Fairness Act to expand an existing organization to help keep the process of collecting internet sales taxes fair. This non-profit organization, called Streamlined Sales Tax (SST)was created in 1999 as a way to i "simplify and modernize sales tax administration." At present, 44 states have agreed to participate, with centralized administration and reciprocity agreements, standardized tax rates, and uniform tax bases.
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NRF, representing both small retailers and big-box merchants, from Walmart and Target to Best Buy and Macy’s, isn’t the only one that’s happy about the ruling. In another sign of the disruptive impact of Amazon and digital native startups including eyeglasses label Warby Parker and mattress brand Casper, more than 20 other trade groups — from the National Grocers Association and the National Association of College Stores to the American Supply Association and the Auto Care Association — joined NRF in March in a brief supporting the South Dakota case on internet sales tax collection.