Thought Leadership 06.22.18
In South Dakota v. Wayfair, Inc., the Court overrules the “physical presence” requirement as “unsound and incorrect”
California adopts robust marketplace facilitator regime and responds to threshold limitations in U.S. Supreme Court’s Wayfair decision.
On April 25, 2019, California enacted comprehensive marketplace facilitator legislation. Many said last fall this would be an impossible feat given the divided constituency of the California Legislature on whether all marketplace facilitators should be treated equally for purposes of imposing California’s Sales and Use Tax law. Consider the impossible achieved. California’s sweeping Marketplace Facilitator Act, adopted under Assembly Bill (AB) 147, treats virtually all marketplaces the same.
Separately, AB 147 establishes a $500,000 economic nexus threshold for remote sellers making sales into California. The new economic threshold is intended to be consistent with South Dakota v. Wayfair Inc. (2018) 138 S.Ct. 2080 (Wayfair). See Pillsbury’s coverage of Wayfair (client alert).
Under the new economic nexus threshold, a retailer engaged in business in California includes any retailer that, in the preceding or current calendar year, has total combined sales of tangible personal property for delivery in California that exceed $500,000. In calculating total combined sales, a retailer must include its sales into California and the sales of all persons related to the retailer into California. The economic nexus provisions are effective April 1, 2019 and will not be applied retroactively.
The legislation overrides the California Department of Tax and Fee Administration’s (CDTFA or the Department) Special Notice L-565 (the Notice) that separately purported to implement Wayfair thresholds by way of administrative guidance.
Observation—CDTFA Special Notice L-565
Three days before AB 147 was introduced in the Legislature in mid-December 2018, the Department published its Notice stating its intention to implement Wayfair economic nexus thresholds on remote sellers under California’s long-arm statute, Cal. Rev. & Tax. Code § 6203(c). The Notice imposed use tax collection obligations on remote sellers with more than $100,000 of sales or 200 or more separate transactions into California in the preceding or current calendar year. The collection requirements began on April 1, 2019. According to the authors of the new legislation, Assemblywoman Autumn Burke and Senator Mike McGuire, the transaction threshold was eliminated in its entirety and the sales threshold was set at $500,000 to “preserve and protect” the role small businesses play in California’s economy. Specifically, members of the Assembly and Senate expressed concerns over the low thresholds ($100,000 or 200 transactions) due to California’s population and the size of its economy.
Marketplace Facilitator Act
The new Marketplace Facilitator Act (the Act) carefully distinguishes between marketplace facilitators and marketplace sellers and their respective sales or use tax obligations. Beginning October 1, 2019, marketplace facilitators are statutorily the seller or retailer in a sales transaction they facilitate for a marketplace seller.
As the retailer, the marketplace facilitator must pay sales tax or collect and remit use tax on all sales of tangible personal property into California, including those sales made on behalf of its marketplace sellers, if the marketplace facilitator’s cumulative sales into California meet the $500,000 economic nexus threshold. In calculating cumulative sales, a marketplace facilitator must include sales of tangible personal property made on its own behalf and sales of the same facilitated through its marketplace for its marketplace sellers.
Observation—Marketplace Sellers May Not be Off the Hook
A marketplace seller is not necessarily relieved of its duty to pay sales tax or collect and remit use tax even though a marketplace facilitator is subject to the tax imposition. The Act requires a marketplace seller making direct sales into California, separate from its sales facilitated by a marketplace facilitator, to pay sales tax or collect and remit use tax on such sales if the marketplace seller independently meets the $500,000 economic nexus threshold. In calculating whether it meets the $500,000 threshold, a marketplace seller must include both its direct California sales and California sales facilitated by a marketplace facilitator. However, the marketplace seller’s tax obligation will be limited to its direct California sales and not sales made through the marketplace because statutorily the marketplace seller is no longer the retailer of such sales.
The Act broadly defines a “marketplace” to include both a physical and electronic place where a marketplace seller sells or offers for sale tangible personal property. The definition of “marketplace facilitator” is also broad, capturing marketplace facilitators that list a marketplace seller’s items for sale on their platforms, and more involved marketplace facilitators that may set prices, take orders, brand sales as those of the marketplace facilitator, or offer payment processing services or fulfillment or storage services.
Observation—Not All Marketplace Facilitators Are Created Equal
Unlike California, some of the earlier states to impose collection obligations on marketplace facilitators, such as Minnesota, Oklahoma, and Pennsylvania, created narrower definitions for a marketplace facilitator. The narrower definition requires that a marketplace facilitator either directly or indirectly collect the payment from the customer and transmit it to the marketplace seller before the facilitator must collect and remit the tax on behalf of the marketplace seller, or in certain states adhere to notice and reporting requirements. States such as California, Alabama, Iowa, New Jersey, and Washington have broader, arguably easier to apply, definitions of marketplace facilitator. Under those definitions facilitating the sale is enough to either require the marketplace facilitator to pay the sales tax or collect and remit the use tax or in certain states adhere to notice and reporting requirements.
Additionally, the laws of some of the earlier states to adopt marketplace facilitator legislation allowed facilitators to elect to comply with notice and reporting requirements as an alternative to imposition of the tax liability obligation. Such states include Alabama, Oklahoma, Pennsylvania, Rhode Island and Washington. California’s rule, like a number of other states that more recently have adopted marketplace facilitator legislation, does not provide a notice and reporting alternative. This trend has faded and many states that offered a notice and reporting election are doing away with it for strictly imposing the tax liability obligation.
While the definition of marketplace facilitator is broad, the Act does provide for certain limited exclusions. The Act excludes from the definition of marketplace facilitator, a “delivery network company,” which is defined as a business that utilizes a mobile application to facilitate delivery services for the sale of local products. The Act also provides that an entity advertising tangible personal property for sale but not transmitting or communicating the offer and acceptance for the sale or processing payments directly or indirectly for the sale is not considered facilitating a sale.
The Act provides relief provisions for marketplace facilitators. For example, a marketplace facilitator may be relieved of liability for tax owed on a facilitated sale and the marketplace seller will become the retailer liable for the tax if the marketplace facilitator demonstrates that it relied on inaccurate information provided to it by an unrelated marketplace seller. In other instances, the Department may be required to provide temporary tiered relief for good faith errors, other than an error in sourcing the sale. This relief is capped between 5 percent and 7 percent of sales depending on the tax period and is valid through December 31, 2023.
Because the legislation was passed as an urgency statute, the Department is allowed to temporarily circumvent the normal rulemaking process and instead adopt emergency regulations to implement the economic nexus and marketplace facilitator provisions during the 2019-20 fiscal year. If promulgated, such emergency regulations will remain in effect two years from adoption.
The Legislation’s Effect on California’s Local Sales and Use Tax Laws
The Bradley-Burns Uniform Local Sales and Use Tax Law (the Bradley-Burns Act) authorizes California counties and cities to impose local sales and use taxes in conformity with the state sales and use tax laws. The new legislation requires no changes to the Bradley-Burns Act because the act statutorily incorporates changes made to the state sales and use tax laws into the local sales and use tax laws.
Separate from the Bradley-Burns Act, California’s Transactions and Use Tax Law authorizes districts (i.e., defined localities) to impose a use tax collection requirement. The new legislation requires adoption of the $500,000 threshold at the district level. Previously, a retailer was only required to collect district tax if it had a physical presence in the district. Now, a retailer meeting the $500,000 state threshold must collect the district tax based on the destination tax rate.
Taxpayers tracking California’s adoption of AB 147 and its impact at the local levels may want to keep an eye on Assembly Constitutional Amendment 13 (ACA 13), introduced on March 26, 2019. ACA 13 would require a destination-based sourcing rule for local sales tax allocation by amending Article XIII, Section 25.5 of the California Constitution.
Article XIII, Section 25.5 of the California Constitution prohibits the Legislature from enacting a law that would change the method of distributing local sales and use tax revenue under the Bradley-Burns Act. ACA 13 proposes to amend Section 25.5 to add an exception to this restriction to require destination-based sourcing of certain sales tax revenue at the local level.
An identical amendment was introduced in the Senate last year under Senate Constitutional Amendment 20 but was unsuccessful.
On the Horizon
The adoption of the Act makes California the 23rd state to enact a marketplace facilitator law. This means more than half the jurisdictions in the United States with a sales and use tax have enacted marketplace facilitator legislation. Similar legislation is pending in most of the remaining jurisdictions. Regardless of legislation, some states and localities are attempting to fit a square peg into a round hole using their current statutory schemes. Jurisdictions such as South Carolina and Louisiana are pursuing marketplace facilitators before enacting marketplace facilitator legislation by attempting to squeeze facilitators into outdated statutory definitions of dealer, retailer, consignor and the like.
For example, a local parish in Louisiana has made arguments that Louisiana’s definition of “dealer” extends beyond sellers and includes a marketplace facilitator despite the fact the facilitator never held title to the products being sold, received no consideration for such products, and only provided services to its third-party sellers. See Normand v. Walmart.com USA LLC, Dkt. No. 18-CA-211 (La. App. 5 Cir. Dec. 27, 2018); writ. app. pend., La. Sup. Ct., Case No. 2019-C-263 (filed Feb. 2, 2019). The South Carolina Department of Revenue has made similar arguments that the state’s definition of “retailer” or “seller” includes a marketplace facilitator that provided services to its third-party sellers regardless of the fact the facilitator never held title to the products being sold and received no consideration for such products. In the alternative, the Department has made arguments that the marketplace facilitator has a collection obligation under the state’s consignment or deemed seller law. Amazon Services LLC v. S. Carolina Dep’t of Revenue, Dkt. No. 17-ALF-17-0238-CC (S.C. Admin. Law Ct., Jan. 29, 2019).
While adoption of marketplace facilitator legislation is better than states that have aggressively attempted to require collection under old laws, much of the marketplace legislation enacted, including the Act, leaves many questions. This is true particularly regarding mixed or bundled transactions that involve sales of tangible personal property and services or intangibles in a single transaction. These issues are complicated further in sales transactions that involve taxable and nontaxable services. Some of these issues have been addressed by administrative pronouncement, rules or regulations, and case law in many jurisdictions under the traditional definitions of retailer, seller and the like. Whether those authorities will equally apply to marketplace facilitators that fall into the traditional roles of retailers and sellers remains to be seen.