Kirsner advises finance executives to consult with a tax professional before responding to a state’s nexus survey, even if they feel certain they have no tax liability in the state. Many companies may believe they are protected by a federal statute that says a state cannot impose income taxes on a company that is in the state simply to solicit sales. But as Kirsner points out, the statute doesn’t apply when a company is selling services. Nor does it apply when sales tax is involved, or when a state has a gross receipts tax instead of a corporate income tax, as Washington, Texas, Michigan, and Ohio do. In such cases, “Once you respond [to a nexus survey] and admit in writing that you were there soliciting sales, then the question becomes, How much were you there? In the state of Washington, one day is enough,” says Kirsner.
Recent court cases may make nexus even harder to avoid. While companies once were thought to have nexus only if they maintained a physical presence in a state, state supreme courts have held that conducting business in a state — through catalog sales, trademark licensing, or the solicitation of credit-card holders — can constitute so-called economic nexus and subject a company to tax. In the recent case of Amazon v. New York, an Empire State trial court ruled that if an Internet retailer generates at least $10,000 worth of sales through referral agreements in New York in a given year, it has nexus and must collect and remit New York sales tax. Amazon.com will likely appeal the decision, but in the meantime, other states, including Illinois and California, are considering adopting New York’s approach.
In Massachusetts, the state supreme court is considering a case in which a regional tire retailer is arguing that it does not have to collect use tax on tires sold in New Hampshire — the Bay State’s sales-tax-free neighbor — to Massachusetts residents. Massachusetts tax authorities contend that the retailer knew those customers intended to use the goods in Massachusetts, and should have charged a 5% tax and remitted the resulting monies to the Massachusetts Department of Revenue. If the state prevails, the ruling may affect other chain retailers with outlets in both states.
The last time the U.S. Supreme Court weighed in on nexus issues was in 1993, and it has indicated that any further action on the issue should come from Congress. Legislation regarding nexus has been introduced in the House, but it is unclear when or whether it will move forward. As a result, “the state courts are not getting any guidance, so they’re just saying we’ll do what we think is right,” says Kirsner.
Another approach gaining favor with state revenue departments is to require unitary reporting, in which companies must consolidate all their business units or affiliated companies and report their combined income in the state if any single unit conducts business there. The state can then levy a tax on that income based on a formula that varies by state, but typically considers the proportion of the company’s sales, property, and personnel in the state relative to its overall business. “It’s a way of bringing out-of-state business into your web,” says Faber.