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July 7th, 2009, 11:47 PM #1
N.C. Revenue Laws Study and Related Items
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- June 29th, 2009
While researching how the "affiliate nexus" legislation came about so quickly, I came across documentation from the "Revenue Laws Study Committee" produced earlier this year. I will post these documents and related material when I find them in this thread.
Document: Memorandum Re: Streamlined Sales and Use Tax Governing Board Activities Update
Author: Author Andy Sabol, Director, Sales and Use Tax Division, North Carolina Department of Revenue
This information was presented at a meeting of the Revenue Laws Study Committee in January 2009. Key points pushed here that relate to the proposed “affiliate nexus” legislation:
- N.C. is missing out on a cash cow buy not being able to collect sales tax from out-of-state businesses.
- N.C. can’t cash in because it is unconstitutional to impose the tax on a business without a “physical presence” in the state.
Here are some observations based on my initial analysis:
- N.C. is a member of a 22-state consortium trying to figure out how to get out-of-state businesses to collect sales tax that in-state residents must pay on purchases, rather than rely on the purchaser to make sure the tax is paid.
- The consortium has set up a voluntary registrar for businesses who want to collect this tax. So far about 1,000 companies have registered. The memorandum does not state who these companies are, their particular level of ease or difficulty in collecting the tax, or why they have chosen to voluntarily pay.
- States are frustrated that the voluntary collection is far below what they would receive if they could collect the tax from all out-of-state businesses.
- The writer acknowledges that without "physical presence" in the state, it is Constitutionally unlawful for states to require out-of-state retailers to collect sales tax.
- The consortium is trying to figure out a way around this by lobbying members of the U.S. Congress to adopt FEDERAL legislation that would make it easier for states to impose this tax on out-of-state businesses. My initial interpretation is that this tax would be required even when there is no “physical presence” in the state requiring the tax.
"The states realize that the amounts being collected voluntarily are far less than the amounts estimated that states are not collecting from sales by remote sellers that do not have a physical presence in states and, based on United States Supreme Court decisions, cannot be required by states to collect."
I posted this document to give some background on the document in my next post: Revenue Laws Study Committee - Report to the 2009 General Assembly (2009 Session).
Whether knowing this stuff will help fight the battle, I don't know. But perhaps putting it out here will illustrate how our legislators became so mis-informed and show there was a true lack of any analysis of how affliate marketing works.
July 8th, 2009, 01:21 AM #2
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- January 18th, 2005
I think North Carolina is the only SSTP-member state to introduce an "Advertising-Nexus" tax law. Logically, of course, there's nothing really illogical in trying both approaches.
The "Advertising-Nexus" tax law is a quick cash-grab, which is nearly certain to be invalidated by the courts (but the states get to keep all monies collected in the interim). Based on the experience in New York, legislators in other states thought it would be an easy way to force Amazon to collect sales taxes for a year or two before a final appellate ruling. (When Amazon warned that it would terminate its advertising in the states that enacted the "Advertising-Nexus" tax law -- and would thus not be required to collect the sales tax -- several states decided to "call Amazon's bluff," and those states lost the game of brinksmanship. Even after losing that "game," North Carolina's politicians have refused to accept reality, and many seem hell-bent on damaging their state's web-publishing small businesses despite the lack of any positive revenue benefit.)
The Streamlined Sales Tax Project (SSTP) is a longer-term plan, designed specifically to follow the blueprint laid out by the U.S. Supreme Court. Its success would be more likely if Congress enacts enabling legislation; without Congress' approval, it's unclear whether the SSTP will ever truly be viable. Alas, with only 19+3 states as members, including only 30% of the US population, the SSTP still faces some obstacles and challenges.
July 8th, 2009, 02:53 AM #3
Originally Posted by markwelch
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- June 29th, 2009
For the past few hours I've been poring over the report the revenue committee sent the the NC GA and making notes to post here. What's really scary is how it clearly demonstrates a lack of study on this particular issue. The lion's share of the committee's analysis as it relates to "remote" sellers is based on the sale of digital media. It's like they just decided to shove the "nexus" thing in there at the last minute while they were rewriting the legislation to accommodate the digital stuff. Anyway, I'll have something from what I'm finding there posted shortly.
July 8th, 2009, 03:18 AM #4
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- June 29th, 2009
Mark, do you know what the laws are concerning advertising in print publications? If an out-of-state business takes out an advertisement in a national magazine based in N.C., is that business required to collect sales tax from purchasers in N.C.
In short, does taking out an advertisement in a print publication constitute nexus? It doesn't appear to based on the N.C. statutes but sometimes they are so murky I can't be sure.
July 8th, 2009, 03:54 AM #5
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- June 29th, 2009
I don't think I can get to everything in this one right now but I'll do what I can.
Document: Report to the 2009 General Assembly (2009 Session)
Author: Revenue Laws Study Committee
This is the formal document submitted to the General Legislature February 10, 2009, signed by Rep. Paul Luebke and Sen. John Kerr, Co-Chairs of the Revenue Laws Study Committee. It contains all the new tax changes recommended for the state.
Here are some observations based on my initial analysis:
Committee Proceedings > Sales and Use Tax >
Modernize Sales Tax Statutes/Digital Products (pages 10-14)
This legislation was recommended by a 16-member “Revenue Laws Study Committee.” Eight members are appointed by the President Pro Tempore of the Senate. Eight are appointed by the speaker of the House. The members can be selected from legislators and/or the general public. The Report states a goal of the Committee goal is to ensure N.C. tax laws are simple, fair, and easy to administer.
It appears the “affiliate nexus” clause is actually rooted in the quest for taxation of digital downloads, such as iTunes, video on demand, and ringtones. After analyzing the taxation of digital products in N.C., the committee concluded:
- When current sales tax statutes were enacted, digital products were not available and therefore the tax codes do not adequately cover this new type of product.
- The physical version of a product is taxable while the digital version is not, therefore the tax laws are not fair as they relate to products that are available in both a physical format and digital format.
- The committee assumes a consumer trend that will evolve is that more and more people will purchase the digital version of a product instead of the physical version and as a result, the state will lose revenue it would have otherwise collected had the digital version not been an option.
These conclusions are the root of Legislative Proposal #5, Modernize Sales Tax Statutes, Digital Products, which:
- Adds a sales tax to digital items that are assumed to have a physical version that is currently being taxed.
- Adds sales tax to software downloads by eliminating the sales tax exemption for software delivered electronically.
- Alters the current "mail order" statute to "remote" sales and adds language attempting to define relationships between retailers and N.C. residents that the state can claim is nexus.
So how did “affiliate nexus” get bundled in with what started out as a study on taxing digital downloads? This appears to be the result of a ONE-MEETING discussion the committee had regarding New York’s law.
“At its last meeting, the Committee discussed North Carolina's current 'mail order' provisions and a recent New York trial court decision.“
According to the Agendas posted in Appendix B, this meeting took place January 27, 2009. The "Modernize Sales Tax Statutes/Digital Products" presentation was a sub-item for five major items. The Report goes on to state:
"After the presentation of the proposal, there was some Committee discussion with regard to the scope of the tax on digital goods under the proposal and the extent to which other states were already taxing these items. There was no discussion of the Amazon case."
In reading the Report, it's clear they just went over a summary of what New York did and decided just to plunk this idea into the proposed legislation. All in an afternoon, an hour, maybe only 15 minutes.
It is absolutely appalling that something that affects so many businesses and individuals in this state would not have received more in-depth analysis and study on its impact.
Anyway, that's all I'm doing for now. You can read it for yourself.
July 8th, 2009, 11:57 AM #6
> "Mark, do you know what the laws are concerning advertising in print publications? If an out-of-state business takes out an advertisement in a national magazine based in N.C., is that business required to collect sales tax from purchasers in N.C.Requiring companies to collect sales tax because they purchase advertising in a state is absolutely one of several "hooks" which the courts have rejected under the "physical presence" standard. (In fact, North Carolina's existing law already provides that ordinary advertising does create nexus, but that law is invalid; see the end of this post.)
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- January 18th, 2005
In short, does taking out an advertisement in a print publication constitute nexus? It doesn't appear to based on the N.C. statutes but sometimes they are so murky I can't be sure." <
That's one reason why the language of the "Advertising-Nexus" tax law so awkward and confusing: because they're trying to define advertising as not being advertising.
The situation presented by the booksellers' lobbyists doesn't sound like "ordinary advertising," of course: they're trying to create the impression that there are commission-based sales agents walking around in the state and soliciting people to buy from Amazon and other out-of-state resellers. The law is clear on this: a company that employs people in the state to sell products, or authorizes an in-state sales agent to solicit in-person and collect sales orders which the company fulfills, has "physical presence" in the state and can be required to collect sales tax.
The booksellers' lobbyists are seeking to re-define an advertising relationship into an agreement between a merchant and a "sales agent" who "solicits" transactions.
New York's tax agency examined the "Advertising Nexus" law and (knowing that lawsuits were already pending) offered a very narrow interpretation that ignores much of the plain language of the statute, and instead focuses primarily on the "solicitation" angle. In effect, New York's tax agency conceded that a merchant who pays for ordinary advertising (banners, buttons, and text links) on a New York web site is not required to collect sales tax. The sales-tax collection duty only arises if the merchant benefits from activities which can be viewed as in-state solicitation.
New York's tax agency issued an advisory which states (in relevant part):> [i]"In addition, an agreement to place an advertisement does not give rise to the presumption described above. For this purpose, placing an advertisement does not include the placement of a link on a Web site that, directly or indirectly, links to the Web site of a seller, where the consideration for placing the link on the Web site is based on the volume of completed sales generated by the link." < (bold emphasis added)Here is Example 4 from New York's advisory:
> "[i] Example 4:
"G Inc. (G) is an Internet-based retailer of gardening tools and supplies. G’s home office is in North Carolina, where its warehouse and administrative offices are located. G makes sales of its products nationwide, including New York State, and its products are delivered to its customers by common carrier. Other than having customers in New York State and the agreements described below, G has no other connection with New York State.
"As part of its business plan to market its products in New York State, G enters into agreements with several garden clubs and other local organizations to place online advertisements on their Web sites, which, when clicked, lead the Web site user to G’s retail Web site. In exchange for placing G’s advertisements on its Web site, G will pay the organizations a set fee based only on the number of clicks on the link to G’s Web site, whether or not sales are
"G’s agreement with the organizations is merely to place advertising on the organizations’ Web sites. Therefore, G is not presumed to be a vendor making taxable sales in New York State by soliciting business in New York State through the use of independent contractors or other representatives. Therefore, G is not required to register for sales tax purposes." < (bold emphasis added)
In a supplemental advisory, the New York tax agency essentially created a "safe harbor" for merchants who include certain language in their advertising agreements and who obtain "proof of compliance" from publishers. The required contract language must provide:> "that the resident representative [web publisher] is prohibited from engaging in any solicitation activities in New York State that refer potential customers to the seller including, but not limited to: distributing flyers, coupons, newsletters and other printed promotional materials, or electronic equivalents; verbal solicitation (e.g., in-person referrals); initiating telephone calls; and sending e-mails. In addition, if the resident representative [web publisher] is an organization such as a club or a non-profit group, the contract or agreement must provide that the organization will maintain on its Web site information alerting its members to the prohibition against each of the solicitation activities described above" <Under the "New York solution" (adopted by many merchants), this list was expanded to include additional specific activities, such as "direct-to-merchant PPC advertising."
Since this contract language eliminates the application of New York's "Advertising-Nexus" tax law, I'm not sure what authority New York has to require merchants to also obtain annual "proof of compliance" from publishers. The New York tax agency clearly recognizes this problem, because the supplemental advisory also asserts that the "proof of compliance" statement must: > "contain a statement alerting the representative [publisher] that the certification and any information submitted with it is subject to verification and audit by the Tax Department." <
As I discussed in the Rhode Island Affiliates sub-forum, Rhode Island's tax agency has adopted an extremely different interpretation of the same "Advertising-Nexus" tax language. In a direct contradiction to New York's "Example 4" (above), Rhode Island's interpretation says:
> "In addition, an agreement to place an advertisement does not give rise to the presumption described above. For this purpose, placing an advertisement does not include the placement of a link on a Web site that, directly or indirectly, links to the Web site of a seller, where the consideration for placing the link on the Web site is based on the volume of completed sales generated by the link." < (bold emphasis added)
As I mentioned in Rhode Island Affiliates sub-forum, Rhode Island's tax agency concedes (like New York's) that mere advertising cannot create nexus -- but then Rhode Island absurdly attempts to re-define a subset of advertising as not being advertising. Under this interpretation, the "New York solution" won't work in Rhode Island, because Rhode Island's tax agency has read the "solicitation" language right out of the statute, and instead bases its interpretation on two factors: first, a compensation arrangement based on sales volume, and second, the presence of a web link. (Under this interpretation, performance-based advertising in "offline" media [TV, radio, newspapers, magazines] is unaffected.)
North Carolina has not yet enacted the "Advertising-Nexus" tax law, and so, as I discussed in another discussion thread yesterday, we simply don't yet know how North Carolina's tax agency will interpret the language. It seems reasonable to expect language similar to both New York and Rhode Island acknowledging that "an agreement to place an advertisement" doesn't trigger the statute. However, we can't predict whether North Carolina's tax agency will adopt New York's narrow interpretation (e.g. Example 4), or Rhode Island's bizarre re-definition of certain types advertising as not being advertising when it's done online.
But it's important to recognize that North Carolina's existing law already provides that any retailer is required to collect North Carolina sales tax if:
> "The retailer, by purposefully or systematically exploiting the market provided by this State by any media‑assisted, media‑facilitated, or media‑solicited means, including direct mail advertising, distribution of catalogs, computer‑assisted shopping, television, radio or other electronic media, telephone solicitation, magazine or newspaper advertisements, or other media, creates nexus with this State." <
Thus, the current "Advertising-Nexus" tax law is not the first time North Carolina has attempted to force out-of-state advertisers to collect sales tax. This language directly contradicts U.S. Supreme Court decisions which rejected this logic and required "physical presence" to create nexus. Accordingly, it is invalid and the state doesn't try to enforce this unconstitutional language. Unfortunately, it does demonstrate a legislative intent, and therefore it does seem possible that North Carolina's tax agency may not interpret the law favorably.
The "Advertising-Nexus" tax language is unconstitutional, on its face: it is absurdly overbroad and clearly attempts to re-define "web advertising" as creating "physical presence," despite court rulings that mere advertising cannot create nexus.
Unfortunately, compliance with the U.S. Constitution is not a requirement for passage of a law; instead, our system requires that the constitutionality of an enacted law be resolved by the courts -- starting with the state courts, whose judges are likely to favor the state's interests over constitutional precedent. As a result, it is quite likely that this issue will not be resolved in the courts until after several appeals, possibly to the U.S. Supreme Court. That could take years.
Legislative analysts in each state have responded to the argument that the law is unconstitutional by pointing out that even if this is true, the state will be able to enforce the law until a final court ruling, and will thus be able to collect tens of millions of dollars in sales taxes. Since the taxes are legally owed by consumers, they won't need to be repaid, so the state "wins" even if the law is later declared unconstitutional and sales tax collections stop. (The analysts have all assumed that Amazon will, in fact, collect the tax, which was a rational but mistaken assumption. And the analysts never considered the loss of advertising revenue by in-state publishers as an offset.)
Last edited by markwelch; July 8th, 2009 at 12:27 PM.
July 8th, 2009, 12:44 PM #7
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- January 18th, 2005
Okay, I just re-read the sentence that Rhode Island used in its notice, and I re-read the New York tax agency's advisory. And to my surprise, the language is identical.
Yes, indeedy -- Rhode Island's interpretation isn't "different" but is merely less complete.
New York did state that paying for a web link which is compensated based on sales volume is not "placing an advertisement." But then, in its "Example 4," New York contradicted this by describing exactly the same arrangement and concluding that the merchant did not need to collect sales tax.
I'm pounding my head on the table now.
Hopefully, both Rhode Island and North Carolina will adopt the exact same interpretation as New York did.
July 8th, 2009, 02:29 PM #8
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- June 29th, 2009
Wow, Mark it's fantastic that you are doing all this research. I found NC § 105‑164.8. about mail order company advertising very confusing. Your insight is helping a lot to paint the big picture on the inequities around this proposed legislation. Thanks!
July 8th, 2009, 02:38 PM #9
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- June 29th, 2009
I spent several hours going over the documents in the Amazon case. The verbiage the N.C. legislation uses is exactly the same as New York's. Specifically proposed changes to § 105 164.8(b)(3) copied directly from N.Y. are below. This tells me that again - NO ANALYSIS was done by anyone in the pipeline of this proposed regulation in N.C.
Over the past couple of weeks I've been picking this passage apart. I'll bet 100% of the legislators supporting this proposed legislation would not be able to clearly define what it means. And no surprise since it did not originate from anyone in N.C.
The purpose of wording a passage like this is to make it intentionally confusing so the legislators pushing it can make up their own convenient definition of it when lobbying their colleagues to vote for it.
SECTION 27C.2.(b) The catch line of G.S. 105 164.8 reads as rewritten:
"(3) The retailer solicits or transacts business in this State by employees, independent contractors, agents, or other representatives whether the remote sales thus subject to taxation by this State result from or are related in any other way to the solicitation or transaction of business. A retailer is presumed to be soliciting or transacting business by an independent contractor, agent, or other representative if the retailer enters into an agreement with a resident of this State under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an Internet Web site or otherwise, to the retailer, if the cumulative gross receipts from sales by the retailer to purchasers in this State who are referred to the retailer by all residents with this type of agreement with the retailer is in excess of ten thousand dollars ($10,000) during the preceding four quarterly periods. This presumption may be rebutted by proof that the resident with whom the retailer has an agreement did not engage in any solicitation in the State on behalf of the seller that would satisfy the nexus requirement of the United States Constitution during the four quarterly periods in question."
July 10th, 2009, 06:17 PM #10
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- June 29th, 2009
This is a draft of my next letter to our legislators. I have redacted a couple of the URLs because they point to a web page where I plan to add iTunes links.
How Scripto v. Carson Proves We Are NOT a Sales Force in N.C.
Much of the rhetoric going around by proponents of the “affiliate nexus” changes to § 105 164.8(b)(3) claim that N.C. residents who post links from out-of-state retailers constitute a “sales force.”
In its February 20, 2009, Report to the 2009 General Assembly, the Revenue Laws Study Committee spotlighted the1960 case Scripto v. Carson to support its assertion that “independent contractors” create nexus for an out-of-state business. Proponents of the proposed legislation are using this assertion to claim that out-of-state retailers have created a “sales force” in North Carolina by establishing relationships with N.C. businesses and individuals who manage websites.
The circumstances of the 10 in-state independent contractors are not the same as those of web publishers in N.C. who post sponsored ads on their web sites (About web publishers: http://XXXXXXXXXXXwebpub). Our state government failed to do a proper analysis of this issue prior to introducing this legislation and as a result, many N.C. businesses and individuals are already suffering from its effects even before it has passed.
Below are five key statements directly from Justice Clark’s written opinion for SCRIPTO v. CARSON, 362 U.S. 207 (1960) reflecting how the Court came to the conclusion that these “independent contractors” created nexus. After each statement is the “key phrase” that separates the Scripto case nexus assertions from web publishers, followed by is a rebuttal showing why N.C. web publishers do NOT create nexus through their relationships with out-of-state companies.
Court Opinion: At the time of suit, there were 10 such brokers - each having a written contract and a specific territory.
Key phrase: “specific territory”
Rebuttal: N.C. web publishers are not assigned territories by the companies who sponsor ad links on our web sites.
Court Opinion: The contract specifically provides that it is the intention of the parties "to create the relationship . . . of independent contractor." Each order is to be signed by the solicitor as a "salesman";
Key phrase: “solicitor as a ‘salesman’”
Rebuttal: Web publishers are not salesmen or saleswomen for these out-of-state retailers.
Court Opinion: Next, as Florida points out, appellant has 10 wholesalers, jobbers, or "salesmen" conducting continuous local solicitation in Florida and forwarding the resulting orders from that State to Atlanta for shipment of the ordered goods.
Key phrase: “continuous local solicitation”
Rebuttal: Out-of-state retailers who have relationships with N.C. web publishers do not make stipulations or requirements that we must exploit our physical proximity to N.C. residents in order to participate in their advertising programs.
Court Opinion: The only incidence of this sales transaction that is nonlocal is the acceptance of the order.
Key phrase: “only incidence of this sales transaction that is nonlocal”
Rebuttal: The only incidence of sales resulting from links on N.C. web publisher sites that IS local is where the items purchased are delivered.
Court Opinion: The formal shift in the contractual tagging of the salesman as "independent" neither results in changing his local function of solicitation nor bears upon its effectiveness in securing a substantial flow of goods into Florida.
Key phrase: “local function of solicitation”
Rebuttal: This iterates the key point that the purpose of “independent contractors” in the Scripto case was to use the physical presence of these sales people to generate sales specifically from Florida residents. Web publishers do not operate in that capacity, therefore, we do not pass the test of “independent contractor” as stated in Scripto.
Furthermore, Justice Clark reminds us:
“Of course, no State can tax the privilege of doing interstate business. See Western Live Stock v. Bureau, 303 U.S. 250 . That is within the protection of the Commerce Clause and subject to the power of Congress.”
It is disturbing so little analysis was by the Revenue Laws Study Committee and lawmakers prior to introducing the proposed updates to § 105 164.8(b)(3). It appears most of the Committee’s official discussions surrounding “modernizing the tax code for the digital age” centered on the issue of digital sales, with the nexus issue brought in at the last minute almost as an afterthought.
I can find NO evidence that there was any detailed analysis to find out the true circumstances of the relationship between N.C. web publishers and out-of-state retailers. The Revenue Laws Study Committee report itself states “At its last meeting, the Committee discussed North Carolina's current ‘mail order’ provisions and a recent New York trial court decision.”
According to the Committee’s agendas, that last meeting was January 27, 2009. The “Modernize Sales Tax Statutes/Digital Products” was a sub-item on a five-item agenda. I could find no reference with the “nexus” issue itself was a main item on ANY of the agendas going back to October. Furthermore, the documents from that January 27, 2009 meeting are missing (http://www.ncleg.net/gascripts/Docum...January%202009). There is a PowerPoint on “Taxation for the Digital Age” from January 7, 2009, but it appears to deal exclusively with digital matters and NOT nexus. There is also a report on the Streamlined Sales Tax Project, but that was just addressing the issues of federal laws to address the interstate tax issue.
After presenting Legislative Proposal #5 to the Committee, the only discussion - according to the official Report - was regarding the DIGITAL tax and the “Amazon case was not discussed.” The report also acknowledges that the existing law was updated by “adding language identical to the New York provision.”
The state of New York should not be writing laws for North Carolina - especially when we’re dealing with a law that is so young and that hasn’t been thoroughly tested. To just say “Oh this is what happened in New York - let’s do that, too” is WRONG. New York’s law is still very new, and the Amazon case there is under appeal. North Carolinians who are so deeply impacted by this contentious issue deserve more consideration than this.
Now proponents of the legislation are spinning this to be some sort of “aggressive action” on Amazon.com’s part. Lots of out-of-state retailers are dropping their sponsorships on N.C. web publishers’ sites as a practical matter, not an act of aggression (Myths:http://XXXXXXXXXXXmyths). Amazon.com continues to make money from the thousands upon thousands of links on my sites, yet I can collect no fees for this now thanks to this proposed legislation brought about so hastily.
Now that I have backtracked to this proposed legislation’s source and see the methodology that brought it about, I can see how lawmakers who have pushed this so hard would have no interest in digging beneath the surface to discover what’s really going on here. On the other hand, I am encouraged by lawmakers who have shown a sincere desire to look at all sides of this issue. Let’s hope all of our lawmakers will study the facts and the consequences and make the decision that is best for North Carolina.
July 11th, 2009, 08:22 AM #11
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- June 17th, 2009
BizDocs, you rock! This is great. Excellent job researching this. I hope you'll post it someplace so that others might share it with their legislators.
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