On February 12, 2019, the Michigan Court of Appeals upheld the imposition of use tax on phones that were given away for no charge by a company in conjunction with its sale of mobile phone service contracts. The company sold service contracts for a single mobile phone service provider and also purchased phones from the provider. The company did not remit sales or use tax on the phones that it purchased from the provider “for purposes of resale.” On audit, the company was assessed use tax based on the price it paid the provider for the phones. The company argued that its purchase price for the phones was zero, asserting that it had been reimbursed by the provider for the cost of phones. The Court, however, determined that the company was not reimbursed by the provider but instead was paid a commission by the provider for the sale of service contracts. Accordingly, the Court upheld the determination that the company owed use tax on its disposition of the phones. Emery Electronics, Inc. v. Dept. of Treasury, Dkt. No. 342250 (Mich. Ct. App. Feb. 12, 2019) (unpublished).

The Maryland House of Delegates is considering legislation (House Bill 426) that would impose sales and use tax on digital products and sales tax on digital codes. If signed into law, Maryland would begin taxing digital products and digital codes on July 1, 2019. House Bill 426 was read for the first time in the Ways and Means Committee on January 31, 2019.

Read the full legal alert here.

On December 5, 2018, the Indiana Supreme Court in a 3-2 split decision held that an RV dealership was liable for uncollected sales tax on RV sales even though it delivered the RVs to buyers at out-of-state locations.

The RV dealership’s protocol for transferring possession of its RVs to customers depended on the customer’s state of residence. Customers from Indiana—or from one of the 40 states with reciprocal tax exemption agreements under Indiana Code section 6-2.5-5-39(c)—drove their RVs directly off the dealership lot and paid Indiana sales tax. Customers from the nine states without reciprocal tax exemption agreements, however, could choose to pay sales tax either at Indiana’s rate or at their home state’s rate, with customers ostensibly choosing the lesser of the two.

The RV dealership is based in Middlebury, Indiana, which is approximately eight miles from the Michigan border. When the RV dealership made sales to Michigan customers, it would drive the RVs to a Michigan gas station approximately three miles north of the Indiana border that functioned as the delivery location. At the gas station, the customers would sign confirmations of delivery and receive the keys to their new RVs. The Indiana Tax Court ruled that these transactions were not subject to Indiana sales tax because the transactions were made outside of the state. The Indiana Supreme Court reversed the tax court’s decision, holding that Indiana sales tax was due on the Michigan sales because the RV dealership delivered the RVs in Michigan solely to avoid paying Indiana sales tax with no other independent, non-tax-related business purpose. (Richardson’s RV, Inc. v. Indiana Dep’t of State Revenue, 112 N.E.3d 192, (Ind. 2018)).

On December 31, 2018, District of Columbia Mayor Muriel Bowser signed B22-1070, the Internet Sales Tax Emergency Amendment Act of 2018 (Emergency Act). As of January 1, 2019, the District of Columbia now subjects digital goods to the 6% sales tax rate and imposes Wayfair-style economic nexus sales tax collection requirements. As of April 1, 2019, the District also will require marketplace facilitators to collect sales tax on behalf of their marketplace sellers.

Read the full Legal Alert here.

The California Court of Appeal affirmed a trial court decision finding that transactions involving an Internet retailer headquartered in Brisbane, California, were subject to local use tax, rather than local sales tax, because title in the transactions at issue passed outside California. The court explained that when a retail seller delivers goods to a common carrier at an out-of-state warehouse for shipment to a customer in California, title will pass to the buyer at the time and place that the retailer delivers the goods to the carrier, absent an agreement to the contrary.

City of Brisbane v. Cal. Dep’t of Tax & Fee Admin., No. A151168 (Cal. Ct. App. Nov. 14, 2018) (unpublished).

The Texas Comptroller ruled that the purchase of a battery system did not qualify for the manufacturing exemption from Texas sales and use taxes because it was used to store electricity, not manufacture it. The taxpayer operated a wind farm and began a project to participate in the Electric Reliability Council of Texas’ Fast-Responding Regulation Service (FRRS). Each participant in the FRRS was required to make energy available on demand. To do this, the taxpayer needed a battery system, which could store and maintain the electricity so it would be available and ready for distribution.

The taxpayer argued that its purchase of the battery system qualified for the manufacturing exemption – which is available for items directly used or consumed during manufacturing of tangible personal property (such as electricity) if the use or consumption is necessary for the manufacturing operation and makes or causes a chemical or physical change to the property being manufactured. The taxpayer argued that the exemption applied because the energy underwent a chemical change when the battery converted the direct current energy from the wind farm from electrical energy to chemical energy and, upon discharge, converted the chemical energy to direct current electrical energy. However, the Comptroller disagreed and ruled that the chemical change was done for storing manufactured electricity, not to manufacture electricity, and the manufacturing exemption specifically excludes property used to maintain or store tangible personal property.

Texas Private Letter Ruling No. 20180110142309 (Aug. 14, 2018).

The Texas Comptroller ruled that a taxpayer, which provided education and networking services for the property management industry, was not providing “information services,” but rather a non-taxable service. Taxable information services involve “furnishing general or specialized news or other current information” or “electronic data retrieval or research.” Tex. Tax Code § 151.0101(a)(10), 151.0038; Texas Rule 3.342(a)(6). Here, the taxpayer’s online courses were interactive, involved an instructor and contained tools for student assessments. Because the taxpayer provided student instruction and assessment tools, the Comptroller concluded that the education and networking services were not information services or any other taxable service. Tex. Comptroller of Pub. Accts., Comptroller’s Letter No. 2017010109, Accession No. 201809007R (Sept. 11, 2018).

This is the eleventh edition of the Eversheds Sutherland SALT Scoreboard, and the third edition of 2018. Each quarter, we tally the results of what we deem to be significant taxpayer wins and losses and analyze those results. This edition of the SALT Scoreboard includes a discussion of California combined reporting, insights regarding the Washington bad debt deduction, and a spotlight on apportionment cases.

View our Eversheds Sutherland SALT Scoreboard results from the third quarter of 2018!

The South Carolina Administrative Law Court ruled that the taxpayer was required to collect sales tax on its retail sales of prepaid cellular telephone service.  The taxpayer argued that its sales did not constitute “prepaid wireless calling arrangements,” which must be “sold in units or dollars which decline with use in a known amount.”  Because it sold unlimited plans, the taxpayer contended its sales did not meet this test.  The court disagreed, finding the statute to unambiguously subject prepaid plans to sales tax.  Although the taxpayer’s prepaid plans were unlimited, they were still subject to a known unit and known expiration date of 30 days.

Unlimited Phone Store, LLC v. S.C. Dep’t of Revenue, No. 16-ALJ-17-0399-CC

The US Supreme Court recently overruled the long-standing “physical presence rule” that barred states from imposing sales tax collection requirements on certain out-of-state sellers. However, in South Dakota v. Wayfair, Inc., the Court did not clearly state a new standard to replace the physical presence rule. States are responding to the decision in different ways. This Bottom Line videocast, Eversheds Sutherland attorneys Todd Lard and Jessica Eisenmenger discuss:

  • the US Supreme Court’s decision in Wayfair
  • the ambiguity of the new nexus standard
  • three approaches to nexus that states are taking in the wake of the Wayfair decision