Unexpected state tax obligations can wreak havoc on a business’s bottom-line. It is crucial for CFOs to monitor their companies’ physical footprints (employees and property) to ensure compliance as businesses expand and new customers are found.

Arthur R. Rosen, partner, McDermott Will & Emery.

Arthur R. Rosen, partner, McDermott Will & Emery. Arthur R. Rosen, partner, McDermott Will & Emery.

In the case of sales taxes, it also means that the company has missed the chance to collect the tax from its customers. A company’s profits from customers in the state can be more than wiped out. Even if the state tax administrator does not catch the business, the problem can come to light during the due diligence process for a sale of the company, hurting the valuation of the business and potentially killing the deal.

With a recent raft of new state tax laws, it is no longer enough to consider a company’s own physical footprint; a business must also worry about state tax nexus risks from outside marketing and sales fulfillment providers. These “affiliate” or “attributional” nexus state laws take the in-state presence of a business partner and treat it as establishing nexus for the out-of-state company. The classic example is an independent contractor salesman, but these proliferating laws extend to everything from online advertising to warranty repairs. While these laws vary from state to state, potentially affected activities include the following:

Matthew C. Boch, McDermott Will & Emery.

Matthew C. Boch, McDermott Will & Emery.

  • Performance-based advertising: A marketing relationship with an in-state advertiser can create nexus. The “click-through” nexus laws, sometimes called “Amazon” laws, presume that in-state marketing partners that are compensated based on completed sales are actively soliciting on behalf of a company and therefore create nexus. That puts a paperwork burden on the company to prove that the presumed solicitation by its marketing partners is not occurring. Failure to obtain this type of proof leaves a business exposed if it’s audited.
  • Installation or delivery services: Offering installation or other assistance setting up a product—assembling equipment, setting up software, on-site training, etc.—can establish nexus, as can delivery on behalf of the seller by anyone other than such common carriers as the United States Postal Service, FedEx, and UPS.
  • Returns or warranty repairs: Having an in-state person accepting returns or making warranty repairs can create nexus – even if the business is simply offering a place where customers can drop off items to be shipped back to the out-of-state office.
  • Sponsorships and endorsements: Sponsorships of in-state celebrities, clubs, special events, and bloggers, for instance, can potentially cross the line into nexus-creating, in-state solicitation. Such arrangements should be carefully designed and evaluated to ensure that the sponsored persons or organizations are advertising, not soliciting.
  • Related-party activities: The activities of a related entity can establish a presumption of nexus – for example, the operations or promotional activities of an in-state business with shared intellectual property that sells the same products or services.

Opinion_Bug7Catching these issues in the ordinary course of contract review is critical so that a business can weigh the benefits of proceeding against the potential tax risks. Further, sometimes the terms of a contract can be adjusted to reduce state tax risks. This type of monitoring requires a companywide commitment, because a tax or finance department rarely has visibility into day-to-day marketing or operational relationships. Other business units must be educated about the issue so that they can identify risks and consult with tax or legal where appropriate.

Unless or until Congress enacts legislation dictating the extent to which a state may impose its tax jurisdiction over out-of-state businesses, states are likely to continue asserting attributional nexus to catch unwary businesses for sales taxes, income taxes, and other state impositions. While managing these risks upfront is burdensome, the alternative of just “kicking the can” down the road leaves businesses exposed to significant risks if audited. CFOs need to ensure that their organizations are aware of these risks and are actively managing them.

Arthur R. Rosen and Matthew C. Boch are partners in the law firm of McDermott Will & Emery LLP.

 

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