Some online marketplace operators display the property of various sellers, process the sellers’ transactions and provide various other services, but the terms of sale dictate and the receipts and other documents related to the sales reflect that the consumers are purchasing the property directly from the sellers. In these instances, the marketplace operators are generally just providing a service, and the seller that lists the property on the marketplace is the retailer making a retail sale to the consumer.
With over 10,000 different tax jurisdictions across the nation, the burden for small businesses would be crushing. This will create enormous costs for companies that have to navigate complex tax laws. Small sellers may need to pay accountants and lawyers to help them comply with these thousands of laws and may open themselves up to potential audits and other state regulations.
Otherwise Subject to Tax. Massachusetts sales or use tax jurisdiction over a vendor that is conferred by in-state contacts other than as referenced in 830 CMR 64H.1.7(1)(b)2.a. through c. For example, an Internet vendor with a principal place of business located outside the state might maintain inventory in the state or contract with an in-state representative (including a related person) that creates sales or use tax jurisdiction. Only a vendor that is not “otherwise subject to tax” is potentially subject to the rule set forth in 830 CMR 64H.1.7(3).
While the physical presence rule may seem clear, this is not necessarily the case. In Quill, the Supreme Court discusses not only physical presence, but also several types of potential nexus (connections) between a business and a state. Many states, including Texas, have used the term nexus rather than physical presence in their sales tax laws, regulations, or other official documents, and have sometimes defined nexus in ways that could go beyond physical presence.
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