Tax Changes: What’s New?

Surprise – we’re back! We disappeared for a while, but we’re back to share some important updates on, you guessed it, taxes!

It should come as no surprise there are constant changes in the tax world, and staying up to date on all these changes and regulations can be taxing (don’t worry, we haven’t lost our sense of humor).

So, what’s been changing? We’re glad you asked.

Physical Nexus

A while back we brought you info on nexus (you can check it out here if you need a refresher). States are now looking to overturn the physical nexus requirement for sales tax and replace the current presence test with a new test which would be based on sales or transaction volumes. These changes are important to pay attention to, as they just might have an effect on your nexus and filing duties.

Sales Tax Reporting

Changes are happening to sales tax reporting in Colorado, which is important if you do business in the state. Back in July, reporting requirements began for sellers who don’t currently collect Colorado sales tax and have annual sales greater than $100,000. If the seller doesn’t let the buyer know on the invoice they need to pay use tax, the seller will be penalized.

Penalties are also being imposed on those who fail to provide their buyers with a year-end transaction summary – if the customer makes more than $500 in purchases. Customer information also must be provided to the state.

Other states such as Kentucky, Louisiana, Vermont and Washington have put similar requirements in place, and it’s likely others will follow. It’s important to pay attention to these changes – your state could be next!

Economic Standard

As if changing the sales tax reporting requirements wasn’t enough, states are also imposing an economic standard for any business conducted in a state that leads to an income tax requirement. The standard for “doing business” generally looks like:

  • $50,000 in property or payroll in a state
  • $500,000 of sales into a state
  • An amount of activity in the above categories that is more than 25% of the company’s total

Of course, these minimum amounts of sales, payroll and property can vary by state. The following states currently have similar definitions for doing business:

  • Alabama
  • California
  • Colorado
  • Connecticut
  • Michigan
  • New York
  • Ohio
  • Tennessee
  • Virginia
  • Washington

The Market-Based Method

Businesses who don’t sell tangible property have been using the “cost of performance” method of revenue sourcing for quite some time. However, states are now starting to source this kind of revenue using a market-based method.

Unsure of what a market-based method is? This method means the sale is attributed to the actual location of the customer, rather than where the work was performed. This change has been adopted by many states, with a lot more likely to play copycat. Stay aware of these changes – filing requirements and taxes may be due in states where taxpayers haven’t previously filed.

This is great info, but why should I care?

Understanding these issues and changes can help you prevent costly surprises. Simply filing in a state where a company has a physical location is no longer valid, and is even considered an invalid excuse for failing to handle sales and income taxes.

Taxes are important. To learn more, or ask some questions, reach out. We’re here to help you!

A version of this blog first appeared on eidebailly.com

Exemption Certificate Errors

We figure with it being tax season, we can never talk too much about taxes and all the rules and regulations that go along with them. So, without further ado, we bring you another tax blog. Today’s topic: exemption certificates.

What is an exemption certificate and why do I need to know this?
Sales tax applies to most items of tangible property – something you can usually touch or see –unless there is an exemption under the law, or an exemption certificate. Exemption certificates usually are presented by a customer to a seller. If the exemption certificate is properly completed, the seller will not be required to collect sales tax.

Can all types of sales be exempt?
Generally speaking, there are three different reasons a sale can be exempt from sales tax. These are considered the type of exemption.

  1. Use Based – These exemptions come from the idea of where and how the product will be used after the sale. Items that are intended for resale are a common example of a use based exemption.
  2. Product Based – This exemption has to deal with – you guessed it – what type of product is being sold. Exemption laws vary from state to state. For example, shoes are taxable in ND and exempt in MN.
  3. Buyer Based – Exemptions that are buyer based focus on the type of buyer who is making the purchase. Examples could include government, hospitals or some not for profit entities.

What’s on an exemption certificate?
As mentioned before (and like anything tax related), the rules and specifications of exemption certificates vary based on state. However, there are some general points that are almost always included on an exemption certificate, no matter which state you are in.

They include:

  • Type of exemption
  • Name and address of both the buyer and the seller
  • Explanation of what is being purchased
  • Tax registration number or other unique identifiers such as a SSN or FEIN.
  • Signature

Sounds good. Anything else I should know?
We’re glad you asked. When state sales tax auditors do their work, they review invoices, types of payment and the information on the certificate for exempt sales. Lately, we are seeing issues where the exemption certificates are not valid because pieces don’t match up.  We will give you some examples.

Example one: A tractor was sold exempt from sales tax with a completed exemption certificate on file. The invoice lists Johnson Farms as the as the buyer. However, the financial paperwork indicates Johnson Auto Parts, and the exemption certificate is from Johnson Farms, claiming a farm exemption. Rather than this transaction looking like a farm use sale, it now looks like it was a non-farm use sale at the auto parts store.

Example two: A riding lawnmower was sold exempt from sales tax with a completed exemption certificate on file. The invoice and exemption certificates list Wee-Town Schools as the buyer. The payment for the sale comes in the form of a check from Mike Johnson. Because the schools name is not on the exemption certificate, it appears the lawnmower is not paid for by the school, and is instead an employee trying to buy an item for his own personal use exempt from sales tax.

Example three: An engine is being sold. The invoice lists Ace Anderson Auto Sales, and is paid for in cash. The exemption certificate, however, comes from Alex Anderson for resale. Alex has gone by Ace his entire life, but only uses the name Alex for official business. Although this is the same person, the auditors do not see it that way. Because the names do not match up, there is a problem with this sale.

The moral of the story…
For an exemption certificate to work properly, the name on it must match up with the invoice/payment. We get it, all this sales and use tax stuff can be pretty tricky (although this blog is pretty helpful). Luckily, our trained professionals are here to give you guidance when you need it.

Common Mistakes on the Sales & Use Tax Form

In our line of work, we have the privilege of working with numerous businesses. This exposure gives us insight into what’s working, what’s not working and what are common mistakes.

Recently, we have run into some confusion surrounding the preparation of sales and use tax returns (we know, this stuff can be confusing); specifically understanding the correct information to enter into the boxes.

The following example is specific to North Dakota, however the moral of the blog is applicable in all taxing jurisdictions.

The first step of a North Dakota return requires you to enter the information for the system in order to calculate the State portion of the sales and use tax. See below for a visual representation.

tax

Section 1: Sales Tax

Remember, these are the taxes imposed at the time of the sale.

Total sales: Your gross sales (taxable and nontaxable).

Nontaxable sales: The amount of your gross sales that is nontaxable.

Net taxable sales: The amount of your gross sales that is taxable (this is calculated for you based on the preceding information entered).

We have noted instances where businesses are only reporting their taxable sales in the total sales box (ignoring the nontaxable sales). While you still arrive at the correct sales tax amount, the report itself is not being prepared properly.

Let’s take a look at an example. You own a store that provides both retail (taxable) and wholesale (nontaxable; the customer is a reseller and you have their current exemption certificate on file). In December, your total sales were $10,000. Of that amount, $1,000 was purchased by wholesalers and $1,000 was sold to a MN customer. This means that this $2,000 is nontaxable sales. The remaining $8,000 in retail sales is your North Dakota net taxable sales.

Section 2: Use Tax

The next section relates to use tax. Remember, these are the taxes are imposed on the use or consumption.

Items subject to use tax: The amount subject to use tax.

In this scenario, we will say that your store purchased $100 worth of office supplies online. There was no sales tax charged at the time of the purchase. The office supplies are considered taxable in North Dakota; therefore you would need to report $100 as items subject to use tax. Although having no items subject to use tax is possible, we have noted instances where businesses overlook the use tax portion because they do not understand the concept of use tax.

Want more information on the difference between sales and use tax? Check out our blog on the topic here.

The moral of the story…

With over 10,000 different tax jurisdictions it would be impractical to cover each jurisdiction (which is why the example is specific to North Dakota). However, no matter the taxing jurisdiction, it is important to understand the components of the sales and use tax return to ensure you are reporting your numbers correctly. As always, if you have questions, our trained professionals understand (and enjoy!) this stuff, and are always ready to help you.

Sales + Use Tax: E-Commerce Happened

There are more than 10,000 local taxing jurisdictions in the United States. Not to mention, the tax rules in each of these jurisdictions can be different (ugh!). So bottom-line, the tax rules surrounding e-commerce are too complex to cover within the context of a blog. However, we can make you aware of some of the issues surrounding sales and use tax in e-commerce.

Nexus: Brick + Mortar to E-commerce

Let’s be honest, the tax system is old. Back in the day, most sales took place under the brick and mortar business model; customers came to you to purchase tangible goods (we’re talking about goods you could physically touch). Every sale was taxable and only one local (county, city) jurisdiction applied; unless an exemption was applicable.

When e-commerce happened there were concepts like virtual, intangible, etc. that weren’t defined by the tax rules. In addition, determining nexus became more complex. As a result, we began to see a marketplace in which not all sales were taxable.

So, what changed?

The customer’s shopping habits changed. Now, customers can (and a lot of them do) shop online. Not all of the online sales transactions are even taxable. It it all depends on nexus and the rules aren’t even the same everywhere.

Speaking of selling online… if you use a fulfillment agency (like Amazon), ownership is the key to determining nexus. If you retain the ownership of your goods while they are stored in the fulfillment warehouse, you have created nexus in the taxing jurisdiction in which the warehouse is located. If the fulfillment agency purchases the goods from you, the transaction does not create nexus in the taxing jurisdiction in which the warehouse is located.

Intangibles

How goods are delivered changed. Now, goods have become intangible (those are goods you can’t physically touch but still have value) such as cloud-based software, mobile applications and online paid content (we’re talking newspapers and magazines delivered online).

Thinking back a few years, customers bought software off the shelf at the store or had their newspapers or magazines delivered to their homes. These were both tangible goods (and the tax rules knew how to handle that). Now, customers download software from the cloud or view their newspapers or magazines online. So depending on where you have nexus, those rules apply (and yep, they aren’t the same everywhere).

Virtual Employees

Where our employees could work from changed. Now, having virtual employees is easier than ever. But this complicates your responsibility to collect sales and use taxes because those virtual employees create nexus.

Moral of the Story…

There are plenty of other considerations when it comes to e-commerce because (in case you hadn’t guessed), the sales and use tax rules are far from straightforward (in many cases). That’s why we recommend having a sales and use tax expert on your side (and there are some online solutions that can help too). Don’t forget, we have experts who are ready to help your business comply.

Kickstarter and Its Tax Implications

Need funding to get your idea off the ground? Turning your idea into a Kickstarter project just might be the ticket to getting the funding you need. Just don’t forget about the tax implications of using a fundraising platform such as Kickstarter.

Income Tax

Generally speaking, the funds received through a fundraising platform are reportable as revenue for income tax purposes. That makes sense, right? You’re getting money and most money is taxable.

Sales + Use Tax

If you’re thinking about offering a gift for a contribution (maybe it is the product you are trying to fund), you might create a sales or use tax obligation.

Can’t remember what the difference between sales and use tax is? Click here to find out.

While sales tax typically applies to the sale of goods or select services, use tax typically applies to gifts. So if you’re offering a gift, you may need to pay use tax to the appropriate state. The use tax is generally calculated based on the cost to produce the product, not the retail price.

What’s with typically and generally? Remember, your responsibility to remit sales and use tax depends on whether or not you have created nexus. Doesn’t ring a bell? Click here to find out more.

Let’s take a look at an example. Suppose you live in North Dakota and are doing a Kickstarter project for a new granola bar. Individuals contributing $50 to your project will receive five granola bars, because you’re nice like that. You will be selling the granola bars for $4/bar (retail), however, they cost you $2 to produce. When you gift the granola bars (meaning you take them out of your inventory at $2/bar), you are on the hook to pay use tax to the State of North Dakota in the amount of $2 times the applicable use tax rate.

What if the individual contributing is in Iowa? North Dakota tax still applies.

The Bottom Line

Taxes aren’t easy. If you are thinking about starting a Kickstarter project (or another similar fundraising platform), consider speaking to your tax professionals before you start your project. And remember, you might need both an income tax expert and state and local tax (SALT) expert in your corner. If you don’t have them, we’ve got them and they love this stuff.

 

 

State and local tax issues when buying or selling a business

You’ve always dreamed of owning a business. Now you’ve found the perfect one to purchase. You ask all the questions you can think of, come to an agreement on price and now you’re ready to go, right?

One major thing that sometimes gets overlooked is something called “successor liability.” This is the idea that when you buy a business, or the assets of a business, you generally also inherit all the liabilities associated with that business or the assets.

Some of these liabilities are pretty easy to figure out, but others may be hidden and difficult to know about or quantify. For instance, you can be audited for periods before your ownership and you can be assessed for sales or other taxes owed by the last owner.

Don’t believe us? Here are some common examples of successor liability discovered after the purchase of a business:

So what are some issues that could create tax exposures for you and your new company?

  • Company had the duty to file but failed to do so
  • The return was filed, but tax was not remitted
  • Company failed to pay use tax
  • Company did not have all the correct exemption certificates
  • Local taxes were ignored

So what can you do to reduce your risk when purchasing a business? Perform the proper due diligence. Due diligence can take a number of different forms, but generally includes reviews of the following:

  • Is the seller filing in the states where it has a duty to?
  • Are the returns accurately and timely?
  • Are taxability decisions correct?
  • Is the proper tax rate being applied?
  • Are exemption certificates accurate and up-to-date?
  • Has the seller been audited or received inquiries from any state?

Hiring a professional to assist you with a due diligence study can help you properly assess the potential liabilities and arrive at a more informed decision. Plus, it will hopefully save you some headaches later on.

But due diligence doesn’t just apply to buying a business. Let’s say you’ve finally made it to retirement and want to sell your business. Performing a due diligence study can help you be sure you have handled all these tax issues correctly and nothing will pop up unexpectedly that may scare away a potential buyer.

No matter what side you’re on, a little additional work upfront could potentially prevent some difficult, timely and expensive mistakes later.

YOUR END GAME: The Importance of Sales Tax

One thing we find is that businesses are really excited to start. You have great ideas and you’re ready to make your dream a reality and introduce a product that will change the world … or at least the way we’ve always done something.

What few businesses add to their mounting to do lists when they start is to think about how they’ll END. Your end game is critically important to consider at the beginning because it helps you chart your course.

Here are a few questions you should be asking right from the beginning:

  • What is your business goal?
  • How do you plan to grow your business?
  • What happens when it comes time for you to exit your business? Who takes over?
  • How do YOU want to exit your business?
    • Merger?
    • Acquisition?
    • Sale?
    • Retirement?

These are just the beginning of numerous questions you can ask. And these don’t take into account a critical component to your end game: SALES TAX. Yes, the current sales tax laws at the time of a buy/sell transaction have an implication on your business. And for you serial entrepreneurs out there, it also has an impact on businesses you buy.

Buyers need to be alert to unpaid or unknown taxes in advance. Otherwise you may be in for a world of hurt when you acquire hidden liabilities. Sellers have to demonstrate you have addressed things like sales and use tax, nexus and payroll tax … to name a few. The way these items are handled can impact the purchase price and what can be done to successfully close the deal.

Now before you freak out, RELAX. We can help. Join us as we discuss how sales tax laws play into business transactions and things you should watch for. You can find us in Mankato on August 2, Sioux Falls on August 3 and Fargo on August 4. We’ll even give you lunch.

P.S. Check out these different considerations when talking about Your End Game. Just make sure you start talking about it early.