By Attorney Morris N. Robinson, CPA, LLM
This article provides practitioners with a practical overview of (1) the changing law of nexus; (2) the Multistate Tax Commission Amnesty Program ending on October 17, 2017; and (3) on-going state voluntary disclosure programs. This article is particularly valuable for companies involved in Amazon’s “Fulfillment by Amazon” program. The article is divided into three parts.
- Nexus is the name commonly given to the right of a state to tax out-of-state companies. The Changing Law of Nexus describes how exploding e-commerce sales – which are growing almost four times as fast as traditional sales – is quickly changing traditional nexus concepts.
- The Multistate Tax Commission Amnesty Program ends on October 17, 2017. This program involves 23 states and the District of Columbia. This program allows qualified out-of-state companies to avoid, in many cases, all taxes, penalties and interest arising from prior noncompliance. This portion of the article is written in an easy-to-understand question-and-answer format.
- The quickly changing tax landscape makes it very easy for out-of-state companies to find themselves owing considerable taxes to the state where their customers and clients live and work. Voluntary Disclosure Programs describes how out-of-state companies can use ongoing state and MTC disclosure programs to achieve partial forgiveness of tax and complete avoidance of penalties. Their managements can also avoid potential criminal exposure. This portion of the article is provided as an outline. For details, see my article entitled State Voluntary Disclosure Programs: An Overview.
The Changing Law of Nexus
What Is Nexus?
Nexus is the word we give to the right of a state to require a company to follow the laws of the state. These state laws include income and franchise tax laws as well as sales and use tax laws. But these state laws also include state licensing laws, which regulate the practice of professions such as law, accounting and engineering. It also includes lost property laws.
Nexus is serious. The flip side of a state’s nexus-based right to tax is the obligation of companies and their managements to pay taxes to the state. Companies that fail to pay over nexus-based taxes are subject to these taxes along with penalties and interest (“tax obligations”). Top management in smaller companies – the CEO, the CFO and members of the Board of Directors – can become personally responsible for the payment of these tax obligations. These tax obligations can build up quickly, especially (1) sales taxes, which are based on a percentage of a company’s gross receipts; and (2) use taxes, which are based on a company’s expenditures for consumable supplies.
The Changing Law of Nexus
The law of nexus is changing rapidly. We are quickly moving towards an era where companies are taxed by the states where their customers and clients live and work. I call this the “new law” of nexus. We are not quite there, but the trend is now unmistakable. How did we get here?
Let’s begin with the “old law” of nexus. Under the “old law” of nexus, an out-of-state company became obligated to pay taxes to a state if the company:
- Was organized under the laws of the state.
- Had tangible personal property located in the state.
- Had real estate or rental property in the state.
- Had employees performing work in the state.
Under the new, evolving law of nexus, out-of-state companies become obligated to pay taxes to a state if the company has customers in the state even if the company does not have a physical presence in the state. This is not yet the law. But this is where the law of nexus is quickly heading.
Comment: The location of the customer is determined by the state’s sales sourcing rules for income tax purposes. Many states, including Massachusetts, now use market-based sourcing rules. For example, under the Massachusetts sales sourcing rules, if the customer is located in Massachusetts, the sale is generally a Massachusetts sale.
The new law of nexus has been evolving for about 30 years. Here are four types of nexus that are not based on the physical presence of the company within the geographical boundaries of the taxing state:
1.Economic Nexus. An out-of-state company becomes subject to the tax laws of a state if it derives economic benefit from its contacts with the state. Here are two examples from Massachusetts:
- An out-of-state bank solicits credit card customers through mass mailings into Massachusetts. The bank is subject to income taxation of the interest derived from these credit card customers.
- An out-of-state company licenses the use of its company logo in Massachusetts. The company must pay income taxes on the royalty income derived from the use of its logo in Massachusetts.
2. Agency Nexus. The out-of-state company sells to customers in a state. The out-of-state company’s sales efforts are actively supported by an in-state agent who provides, for example, set-up, repairs, credit checking and/or returns. Under these circumstances, the out-of-state company may be responsible to report, collect and pay state income, franchise and sales taxes to the state where its customers live and work.
3. “Click-Thru” Nexus. An out-of-state vendor uses a website owned by an in-state company to consummate sales. The in-state company receives compensation for the use of its website by the out-of-state vendor. “Click Thru” nexus is a form of agency nexus.
4. Affiliate Nexus. There are many forms of affiliate nexus. Examples of in-state affiliates that can provide nexus for the out-of-state vendor include:
- Providing warehousing and/or fulfillment services for the out-of-state vendor.
- Using the same trade name as the out-of-state vendor.
- Having a common ownership with the out-of-state vendor.
Economic and Political Realities Affecting Nexus
The changing law of nexus reflects changing economic realities. In a word, e-commerce is exploding. According to the U.S. Census Bureau:
- E-commerce sales in the 2nd quarter of 2017 accounted for about 8.9 percent of total
U.S. retail sales.
- E-commerce sales the 2nd quarter of 2017 grew about 3.7 times faster than overall U.S. retail sales.
Meanwhile, Amazon now collects sales taxes on all jurisdictions where sales taxes are imposed; and, according to Internet reports, Amazon accounts for about 43 percent of e-commerce sales in the United States.
These economic realities have significant political repercussions. States lose very substantial sales tax revenue when out-of-state e-commerce vendors, other than Amazon, choose not to collect, report and pay over sales taxes on e-commerce sales. Congress has proven unwilling to deal with this issue by failing to act on various legislative proposals, such as the proposed Marketplace Fairness Act and similar proposed legislation.
The Current Multistate Tax Commission Initiative
On August 17 and 18, 2017 the District of Columbia and 23 states joined forces to collect sales taxes arising from e-commerce through Multistate Tax Commission, thereby bypassing Congress! They devised a 60-day amnesty that ends of October 17, 2017. Thereafter, participating states may be expected to move aggressively to identify noncompliant companies and to collect the taxes owed.
The MTC tax initiative focuses on companies involved with Amazon’s “fulfillment” program and similar programs because these “Fulfillment by Amazon” companies represent easy targets.
- Out-of-state vendors participating in Amazon’s “Fulfillment by Amazon” program generally receive the following services from Amazon: (1) Amazon lists the vendor’s product on its website; (2) Amazon collects payment from the customer and transmits that payment to the vendor; and (3) Amazon provides fulfillment services for the vendor. Amazon typically has nexus with all taxing jurisdictions. Since Amazon performs the above services for FBA participants, they arguably have “agency” nexus with the state where their customer is located. Also, the FBA participants own the property held in Amazon warehouses. Therefore, the FBA participants arguably have “physical presence” nexus in the customer’s state as well. There appears to be little doubt that sales taxes are due on these e-commerce sales to the state where the customer is located.
- The tax exposure of out-of-state companies involved with the Fulfillment by Amazon program can be considerable. For example, a company selling about $75,000 per week (about $4 million per year) into Massachusetts will generate an annual Massachusetts sales tax of about $250,000. With penalties and interest, the company’s obligation can easily rise to $375,000 per year. As noted earlier, management – the CEO, the CFO, and in some cases the Board of Directors – may be personally responsible for the unpaid taxes. There are also criminal penalties for those who intentionally fail to report, collect and pay over sales taxes.
Thus, companies and their managements will want to minimize or avoid both potential criminal exposure as well as crushing tax obligations. Generally,
- Tax exposure to old tax obligations can be eliminated under the currently ongoing Multistate Tax Commission Amnesty that ends on October 17, 2017. In many cases all back taxes, including all penalties and interest are forgiven.
- Exposure to criminal prosecution can be eliminated and tax exposure to old tax obligations is minimized under the on-going voluntary disclosure programs of the various states and the Multistate Tax Commission. Under these programs, taxes beyond the typical “lookback period” are forgiven along with all penalties. In some cases, interest is also forgiven.
The balance of this article provides an overview of (1) the current Multistate Tax Commission Amnesty that ends of October 17, 2017; and (2) ongoing voluntary disclosure programs of the states and the Multistate Tax Commission.
The Multistate Tax Commission Amnesty Program
Ending on October 17, 2017
As noted earlier, 23 states and the District of Columbia joined a Multistate Tax Commission amnesty program entitled the Multistate Tax Commission’s Online Marketplace Seller Voluntary Disclosure Initiative. For most participating states this amnesty features complete forgiveness of back taxes, penalties and interest! Massachusetts, not unexpectedly, is an exception with a three-year lookback. Here is what you need to know:
Which Taxpayers are Targeted for Amnesty?
The targets of this amnesty are Internet sellers who are members of the Fulfillment by Amazon program and similar programs sponsored by other online retailers. These targets will sometimes be called FBA members. See, also, Which Taxpayers Qualify for the Amnesty?
Which States Are Participating in the MTC Tax Amnesty?
Alabama, Arkansas, Colorado, Connecticut, District of Columbia, Florida, Idaho, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, North Carolina, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, and Wisconsin.
What Taxes Are Covered by the Amnesty?
- Sales Taxes
- Use Taxes
- Income taxes
- Franchise taxes
What Tax Relief Is Granted?
- Complete forgiveness of sales and use taxes, including penalties and interest, arising from online retail sales activity in the state. But see below for Exceptions.
- Complete forgiveness of income and franchise taxes, including penalties and interest, arising from online retail sales activity in the state. But see below for Exceptions.
Comment: Normally, when a taxpayer applies for voluntary disclosure relief with states through the MTC MVDP, the taxpayer will be required to file returns and pay back tax liability, plus interest, for the “lookback period” that the state uses, which is generally the prior three to four years or more, depending on the state’s law or policy. The state will then waive tax liability, interest and penalties for the time period prior to the “lookback period”. Under this amnesty, however, most participating states waive taxes, penalties and for all prior tax periods, without regard to any lookback period, provided the taxpayer meets all amnesty requirements described below.
Are There Exceptions to the Look-Back Rule Discussed under the Above Comment?
The look-back exceptions are Colorado, District of Columbia, Massachusetts, Minnesota, Nebraska and Wisconsin.
Are There Exceptions to Sale/Use Tax Relief?
Sales/Use taxes that have been collected but not remitted must be remitted along with penalties and interest.
Are There Exceptions to Amnesty from Criminal Prosecution?
People who collect but do not pay over sales/use taxes may have committed a serious crime. These people might be immune from criminal prosecution if they and their employers participate in the sales/use tax amnesty. Immunity from criminal prosecution, however, was not discussed in the Multistate Tax Commission announcement and is therefore not free from doubt.
Which Taxpayers Qualify for the Amnesty?
Taxpayers who qualify for the MTC amnesty program are called “online marketplace sellers.” These taxpayers sell through the Internet using a marketplace facilitator (such as the Fulfillment by Amazon “FBA” program) to facilitate its retail sales. Generally, a “marketplace facilitator” is a person who (1) lists the taxpayer’s product on a website; (2) collects payment from the customer and transmits that payment to the taxpayer; and (3) provides fulfillment services for the taxpayer. Under the MTC amnesty program:
- A qualifying taxpayer has no property, employees, or agents in the state, except for its inventory stored in a third-party warehouse or fulfillment center located in the state.
- A qualifying taxpayer has not yet:
- Registered with the state taxing authority;
- Filed returns with such state for the tax type that the taxpayer is seeking voluntary disclosure relief for (sales/use tax, income/franchise tax, or both);
- Made payments of such taxes to the state; or
- Had any other prior contact with the state concerning liability or potential liability for such tax type.
What Are the Amnesty Starting and Ending Dates?
The amnesty began on August 17, 2017. The amnesty applies for all applications filed with the Multistate Tax Commission on or before October 17, 2017.
What Are the Conditions of the Sales/Use Tax Amnesty?
To qualify for sales/use tax relief, described above, an otherwise qualifying taxpayer must agree:
- To register as a seller or retailer with the state;
- To timely collect, report and remit sales/use taxes;
- To file returns on all taxable retail sales to customers in the state prospectively as of the effective date of the voluntary disclosure agreement, which cannot be later than December 1, 2017. 
If the taxpayer has any collected but unremitted sales/use tax, then the taxpayer must agree to remit such tax to the state, including penalties and interest.
What Are the Conditions of the Income/Franchise Tax Amnesty?
To qualify for income/franchise tax relief, described above, an otherwise qualifying taxpayer must agree:
- To timely file income/franchise returns arising from retail sales to customers in the state; and
- To timely pay such taxes as they become due.
These income/franchise tax obligations begin with the taxpayer’s tax year that includes the effective date of the voluntary disclosure agreement, which cannot be later than December 1, 2017. Thus, for calendar year taxpayers, state income/franchise tax returns must be filed and the related taxes paid for calendar year 2017.
How Are Amnesty Applications Made?
Applications are made electronically using the Multistate Tax Commission website. All requirements of the MTC website and the MTC’s Online Marketplace Seller Voluntary Disclosure Initiative must be met.
When seeking amnesty relief, a taxpayer may choose among both states and tax types (sales/use tax, income/franchise tax or both).
A taxpayer can also withdraw the application for voluntary disclosure with any state at any time prior to execution of the voluntary disclosure agreement.
Are Amnesty Applications Anonymous?
A taxpayer can apply to a state for voluntary disclosure anonymously and will not be required to disclose its identity to the state until the taxpayer registers with the state and the voluntary disclosure agreement is executed.
Are Voluntary Disclosure Agreements Anonymous?
Participating states have agreed not to disclose to other taxing jurisdictions the identity of any taxpayer entering into a voluntary disclosure agreement under this special time-limited initiative, except as required by law, pursuant to a court order, or in response to an inter-government exchange of information agreement in which the requesting entity provides the taxpayer’s name and the taxpayer’s identification number. Blanket requests from other jurisdictions for the identity of such taxpayers will not be honored by the Multistate Tax Commission.
Are CPAs Covered by the Attorney/Client Privilege?
Licensed attorneys are protected by the Attorney/Client Privilege when they obtain information to evaluate a legal matter, such as a target’s liability for taxes. CPAs are protected by the Attorney/Client Privilege only if the CPA acquired that information while assisting an attorney who is evaluating a legal matter for a client. Otherwise, a CPA’s information is not protected from disclosure to the taxing authorities.
Are Employees of a Potential Target Covered by the Attorney/Client Privilege?
Employees of targeted taxpayers are generally not subject to any privilege unless these employees are licensed attorneys employed as in-house counsel who are evaluating a legal matter, such as their employer’s liability for taxes.
The Possible Post-Amnesty Strategy of Participating States
The fact that about 23 states and the District of Columbia are involved in this tax amnesty indicates that there is a consensus among the states that at least some FBA members are liable for unreported sales/use and income/franchise taxes arising from their sale of property and services over the Internet. It is possible that at least some of these states will attempt to obtain the identity of FBA members from Amazon and will contact these potential taxpayers either during or immediately after the amnesty ends on October 17, 2017.
The dates of the amnesty – August 17, 2017 through October 17, 2017 – suggest that many states do not really want taxpayers to come forward. The amnesty begins only two weeks before Labor Day when many tax professionals were on vacation. It ends on October 17, 2017, only one day after the final due date for most extended personal income tax returns. These states may therefore intend to collect back taxes, penalties and interest after giving their targets “fair warning” to participate in an amnesty at the end of the summer vacation and during CPA’s “mini tax season”, which ends the day before the amnesty ends.
The Need for Urgent Action
Some states may intend to ask Amazon for a listing of its FBA members and then contact these members. As soon as a state contacts an FBA member, that taxpayer no longer qualifies for the amnesty. See Which Taxpayers Qualify for the Amnesty? Therefore, targeted taxpayers will want to apply for amnesty as soon as possible and certainly before they are contacted by a state department of revenue.
Look Before You Leap
If taxes are owed, this is a good time to come into full compliance where past liability generally are forgiven. If taxes are not owed, however, then coming forward will create unnecessary compliance obligations. Therefore, before making an amnesty application it is important:
- To confirm that sales/use taxes are owed.
- To confirm that income/franchise taxes are owed.
Many taxpayers value the privilege of remaining anonymous until the Voluntary Disclosure Agreement is signed. To protect this privilege, it is important that the taxpayer’s representative be subject to the attorney/client privilege. As noted earlier, only licensed attorneys are subject to the attorney/client privilege.
On-Going Voluntary Disclosure Programs
of the States and the Multistate Tax Commission
What is State Voluntary Disclosure?
State voluntary disclosure allows noncompliant taxpayer to come forward voluntarily. In so doing, they generally avoid:
- The threat of criminal prosecution.
- Accrued taxes before the lookback period.
- Interest on forgiven taxes.
What is Multistate Voluntary Disclosure?
- Multistate voluntary disclosure is made through the Multistate Tax Commission.
- The MTC voluntary disclosure allows a nonfiler to make a voluntary disclosure and negotiate settlement agreements with multiple states and the District of Columbia using a single point of contact.
The Taxpayer’s Goals
- Quantifying unreported tax liability.
- Avoiding criminal responsibility.
- Avoiding penalties and interest.
- Clarifying tax obligations on an ongoing basis.
The Mechanics of Voluntary Disclosure
- Who should represent the taxpayer?
- What Is At Stake?
- Potential Criminal Responsibility
- Need for Anonymity
- Knowledge of Substantive Law – This knowledge is often essential in permitted the filing of technically accurate income tax returns.
- The Alternatives
- Company Personnel
- The Company’s CPA
- A Tax Attorney – Generally, only attorneys can protect client confidences under the attorney/client privilege.
- The Lookback Period – Generally between three and six years
Acceptance Into the Voluntary Disclosure Program
- Did the taxpayer act in “Good Faith”?
- Did the taxpayer have previous contact with the Department of Revenue?
- Did the taxpayer previously register for the tax?
- Did the taxpayer previously collect the tax?
- Consider “Plan B” if the taxpayer is NOT accepted into the requested voluntary disclosure program.
The Application for Voluntary Disclosure
- Were the specific rules for voluntary disclosure followed precisely?
- Was the voluntary disclosure application candid and truthful?
Be Aware of “Catch 22”
- Failure to knowingly collect and pay over sales taxes may be a crime and filing to collect sales taxes may disqualify the taxpayer from a voluntary disclosure.
- But registering to collect and pay over the sales taxes may prevent a taxpayer from making a voluntary disclosure.
When to Disclose?
- Before you are caught!
- Practically, this means as soon as possible!
End of Article
 Attorney Morris N. Robinson, CPA, LLM is Managing Director of M. Robinson Tax Law, a tax boutique located in the heart of Boston’s financial district. State and local taxes is one of the focuses of his practice.
 State Tax Notes, January 18, 2016 Page 225.
 There is an exception: Public Law 86-272. But Public Law 86-272 applies only to income taxes, NOT to franchise taxes or sales and use taxes. Public Law 86-272 excludes income from taxation where nexus is based on the activities of sales people in a state. Public Law 86-272 does not exclude income from taxation if the company’s employees perform acts other than the solicitation of sales. Also, Public Law 86-272 does NOT prevent the operation of a state’s lost property laws or licensing laws.
 Agency nexus can exist where the in-state service provide does not have the legal authority to bind contractually the out-of-state vendor. Thus, agency in the context of nexus is a broad concept whose complete clarification is beyond the scope of this article.
 Exceptions are Colorado, District of Columbia, Massachusetts, Minnesota, Nebraska and Wisconsin.
 “Catch-22” possibilities exist. Amnesty agreements might not be in place by December 1, 2017. But taxpayers are required to be in full filing compliance by December 1, 2017. Compliance after December 1, 2017 voids the amnesty; but compliance before final agreement also voids the amnesty. Therefore, taxpayers are advised to begin amnesty proceedings as soon as possible.
 See Footnote 2, above.