In a 5-4 decision with major implications for e-commerce retailers, the Supreme Court has closed the “online sales tax loophole” by holding that a state may collect sales tax from out-of-state sellers that do not maintain a physical presence in the state. The decision, South Dakota v. Wayfair, Inc. et al., No. 17-494, 585 U.S. __ (2018), overturns two prior Supreme Court cases holding that an out-of-state seller’s duty to collect and remit tax to a consumer’s home state depended on whether the seller had a physical presence in that state. The Court found that this “Physical Presence Rule” was inconsistent with “the present realities of the interstate marketplace” and was costing states an estimated $8 to $33 billion in revenue each year. The Court also was persuaded by the notoriously low rate of consumer compliance with use taxes, and by the fact that the state law in question afforded small merchants a “reasonable degree of protection” by applying only to sellers that annually delivered more than $100,000 of goods or services or engaged in 2,000 or more separate transactions for the delivery of goods or services into the state. The dissenting opinion by Chief Justice Roberts insists that Congress, not the courts, should have undertaken the task to overturn the Physical Presence Rule and that the burden of this new tax regime will fall disproportionately on start-ups and small businesses.

Businesses, financial institutions and governmental entities (state and local) are required to file tax information returns with the U.S. Social Security Administration (“SSA”) or Internal Revenue Service (“IRS”). Common information returns include W-2 and 1099 forms for employees and contractors, 1098s for mortgage interest, and various 1099s for dividends, interest and miscellaneous income. Some organizations file hundreds of thousands of these forms on a regular basis. Continue Reading Incorrect Tax Information Returns: IRS Penalties

On January 18, 2018, Hunton & Williams LLP’s retail industry lawyers, composed of more than 100 lawyers across practices, released their annual Retail Year in Review publication. The Retail Year in Review includes many topics of interest to retailers including blockchain, antitrust enforcement in the Trump Administration, ransomware’s impact on the retail industry, SEC and M&A activity in 2017, cyber insurance, vulnerability to class actions, and the reduced tax rate.

Read the full publication.

As posted on the Hunton Privacy and Information Security Law blog, recently, Virginia passed an amendment to its data breach notification law that adds state income tax information to the types of data that require notification to the Virginia Office of the Attorney General in the event of unauthorized access and acquisition of such data. Under the amended law, an employer or payroll service provider must notify the Virginia Office of the Attorney General after the discovery or notification of unauthorized access and acquisition of unencrypted and unredacted computerized data containing a Virginia resident’s taxpayer identification number in combination with the income tax withheld for that taxpayer. Continue Reading Virginia Adds State Income Tax Provision to Data Breach Notification Law

This week, the 10th Circuit Court of Appeals upheld a 2010 Colorado law (Colo. Rev. Stat. §39-21-112.3.5) requiring out-of-state retailers that do not collect sales tax from Colorado consumers to report transactions to state taxing authorities, in an effort to boost state “use tax” compliance. The Colorado statute requires out-of-state retailers to (1) remind consumers with each transaction that their purchase may be subject to state “use tax” laws; (2) deliver an “annual purchase summary” to any customers with transactions totaling greater than $500 in any year; and (3) annually report the transaction information to state taxing authorities. There is an exception for “retailers who made less than $100,000 in total gross sales in Colorado in the previous calendar year, and who reasonably expect gross sales in the current calendar year to be less than $100,000.”

Continue Reading Colorado Tax Law Determined Constitutional