Baker McKenzie attended the U.S. Supreme Court’s oral arguments yesterday in South Dakota v. Wayfair, Docket No. 17-494. At issue in the case is whether the Court should abrogate the physical presence nexus standard that it first articulated in National Bellas Hess v. Dep’t of Revenue, 386 U.S. 753 (1967), and later affirmed in Quill Corp. v. North Dakota, 504 U.S. 298 (1992). The Court’s decision could have a profound impact on sales and use tax nexus in the United States by altering the limitations currently imposed on a state’s ability to require out-of-state retailers to collect such tax.
The Florida Department of Revenue (the “Department”) recently published Technical Assistance Advisement No. 17C1-004 (decided Apr. 17, 2017, published Aug. 25, 2017) (the “TAA”), which addresses how receipts from “other sales” are sourced under Florida’s apportionment regulation (i.e., Florida Administrative Code Regulation (“Regulation”) 12C-1.0155(2)(l)). Despite the cost-of-performance (“COP”) language explicitly stated in Florida’s Regulation 12C-1.0155(2)(l), the Department applied a market-based sourcing approach, concluding that the receipts from certain services should be sourced to Florida when the taxpayer’s customers are physically located in the state. While Technical Assistance Advisements have no precedential value, the TAA showcases Florida’s propensity to use market-based sourcing for receipts from “other sales,” which appears to be in contrast to the COP directive under Florida Regulation 12C-1.0155(2)(l).
On June 12, 2017, Congressman Jim Sensenbrenner (R-WI) reintroduced into Congress H.R. 2887, also known as the “No Regulation Without Representation Act of 2017” (the “Legislation”), which codifies the physical presence nexus requirement established by the U.S. Supreme Court in Quill v. North Dakota, 504 U.S. 298 (1992) (“Quill”). The Legislation is interesting for several reasons: (1) it proposes to employ a result that is the exact opposite of the recent trend to overturn Quill; (2) it defines “tax” broadly to include net income and business activity taxes; and (3) it expands the law to require a physical presence for states to regulate a person’s activity in interstate commerce outside of the tax context.
The South Carolina Department of Revenue (“Department”) appealed the South Carolina Court of Appeal’s decision in Rent-A-Center West, Inc. v. South Carolina Dep’t of Revenue on November 30, 2016. The Court of Appeals held, on October 26, 2016, that the Department did not satisfy its burden to apply alternative apportionment to Rent-A-Center West, Inc. (“RAC West”). The Court of Appeal’s decision is a big win for taxpayers in South Carolina as it reaffirms that the Department cannot rely on bald assertions to apply alternative apportionment.