Indiana recently passed a new sales tax exemption for Software as a Service (“SaaS”), effective July 1, 2018. Under the new law, sales, leases, and licenses of prewritten software remains taxable, regardless of delivery mechanism, but sales, leases, and licenses of SaaS products are not subject to tax. As such, it appears that if a customer has access or control over the software code, the transaction remains taxable in Indiana. If not, the transaction will not be subject to tax going forward. This distinction is similar to the possessory versus non-possessory rules of the Chicago Personal Property Lease Transaction Tax (“Chicago Lease Tax”) which taxes the lease or license of cloud products at a lower rate, 5.25%, than leases or licenses of software delivered by other methods, which is taxed at 9%.
Today, the U.S. Supreme Court issued its decision in South Dakota v. Wayfair, overturning Quill Corp. v. North Dakota, 504 U. S. 298 (1992) and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), that required businesses to have a physical presence in a taxing jurisdiction in order to create nexus for sales and use tax purposes. The Court, overturning its own precedent, held that those cases were “unsound and incorrect.” Additionally, the Court implied with this decision that its prior jurisprudence on the dormant Commerce Clause may be questioned.
In a narrow 5-4 decision, the Court in South Dakota v. Wayfair, Inc. overruled its long-held precedent and held that under the Commerce Clause physical presence is no longer the touchstone for sales tax nexus. Dating back to its decision in National Bellas Hess in 1967, the Court had been clear that a state sales tax passes scrutiny under the Commerce Clause only if the out-of-state business had a physical presence in the taxing state. The holding in National Bellas Hess was affirmed by the Court most recently in 1992 in Quill. Since Quill, the e-commerce marketplace has exploded and, in many ways, is now the sole channel through which consumers shop for purchases of tangible personal property.
The Tax Cuts and Jobs Act (Act) made significant changes to the Internal Revenue Code. One such change significantly restricts business interest deductions, which were fairly broad under the old law. However, significant carve outs remain in place for the complete deduction of floor plan financing interest. Revised Code § 163(j) states that the deduction for business interest is limited to the sum of:
- business interest income for the taxable year;
- 30 percent of the taxpayer’s adjusted taxable income for the taxable year; and
- the taxpayer’s floor plan financing interest for the taxable year.
Sales and use tax compliance is complicated. Both sellers and purchasers are required to determine where they have nexus, where the purchased products or services should be sourced, and whether the product or service itself is subject to tax. While this sounds simple enough, in practice, it is extremely difficult.
Limited tax amnesty programs gain popularity every few years and this is one of those years. The Alabama legislature has joined the growing list of states providing amnesty programs for taxpayers with unreported tax liabilities. The Tax Delinquency Amnesty Act of 2018 was recently passed and will be in effect from July 1, 2018, to September 30, 2018. Act 2018-153 (H.B. 137), Laws 2018. The program applies to all taxes administered by the Department of Revenue, but excludes motor fuel, motor vehicle, and property taxes. Eligible tax liabilities include liabilities that became due prior to January 1, 2017, or tax liabilities for periods that began before January 1, 2017.
The Colorado Department of Revenue, to the surprise of many, announced that effective as of February 28, 2018, it was rescinding all prior Revenue Bulletins and Policy Positions previously published by the Department.
Businesses were pleasantly surprised to learn that the Illinois Secretary of State reduced Limited Liability Company (“LLC”) filing fees following the passage of Senate Bill 867. This bill was passed in both houses on November 7, 2017 and went into immediate effect upon signature by the governor on December 20, 2017. The fee reduction is intended to allow more businesses to register and maintain business registrations in Illinois. The reduction impacts nearly all LLC filings, reducing fees across the board. For example, the filing fee for Articles of Organization was $500, it is now $150. Similarly, the annual report filing fee was $250, it is now $75.
The Illinois legislature recently mandated electronic filings for certain sales and use and withholding income tax filings as of January 1, 2018. H. B. 0821 was passed in both houses by May 2017 and signed into law on August 24, 2017 by Governor Rauner creating Public Act 100-0303. In September 2017, the Illinois Department of Revenue published an informational bulletin, FY 2018-05-A, explaining the Department’s implementation of P.A. 100-0303. The Bulletin states that as of January 1, 2018 specific sales and use tax and withholding income tax filers are required to file certain forms electronically. Failure to file the appropriate sales and use tax forms electronically results in the disallowance of timely filing discounts/collection allowances claimed on those forms.
The United States Supreme Court has recently agreed to hear oral argument in South Dakota v. Wayfair, Inc. – a case exploring the boundaries of sales and use tax nexus. The crux of the dispute in Wayfair relates to the defining purposes and protections of Commerce Clause of the U.S. Constitution. Much of the discussion to date focuses on the importance of the Court’s decision to grant the appeal. However, there is a fascinating undercurrent yet to be addressed.