Sep 302014
 

In response to today’s reality where security breaches are one of every IT departments top concerns, Zip2Tax is addressing that concern by updating the sample codes for the Database Interface direct connect methods to take advantage of our safer and more secure API. The API provides your account with extra levels of validation to “hide” your activity and prevent data leakage and “SQL injection” attacks. This API masks your server’s information, adding firewalls between your data and potential security breaches.

ACTION IS REQUIRED: Please note, to take advantage of the benefits the API has to offer, you must replace the existing code in your system with the new code samples provided on our web site at API Connect Samples.

As an additional benefit, the new API can provide more information than the original direct connection could. While the sSecure APIamples provided here have the same data fields as the original samples had, the new API does contains more information which you may find of value. Data such as latitude and longitude, jurisdictional warning messages and even special notes on the taxability of certain items can be obtained if your coder follows the directions for the API and modifies the code following the same general parameters.

Although the older direct connect methods will continue to function, we will no longer provide customer support for them and we have removed the code sample pages from the live web site. Below, you will find a list of the original direct connect code and the updated API samples for your reference. We encourage you to switch over to the new code at your soonest convenience. Please call our offices at 866-492-8494 or e-mail info@zip2tax.com if you have any questions.

SQL Server using ASP  —  Recommended upgrade: API using ASP

SQL Server using ASP.NET  — Recommended upgrade: API using ASP.NET

SQL Server using C#.NET  — Recommended upgrade: API using C#.NET

MySQL using PHP  — Recommended upgrade: API using PHP

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Nov 012014
 

Sales and/or use tax rates have changed for four states in Zip2Tax products since October 2014. There were changes in Alabama, Arizona, Georgia and New Mexico.

In Alabama, tax rates changed for Sardis City, Detroit, Pickens County, Alexander City and Lee County.

In Arizona, tax rates changed for Coconino County.

In Georgia, tax rates changed for Greene and Pickens Counties.

In New Mexico, tax rates changed for Cimarron and Las Cruces.

There were 12 states with ZIP code changes effective after October 2014 including California, Colorado, Iowa, Kansas, Kentucky, Louisiana, Missouri, Ohio, Oregon, Virginia, and West Virginia.

Download the full ZIP code change documentation.

Angel Sauer

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Oct 272014
 

air charter businessMost states assess both a tax on the sale and use of personal property. The use tax applies when no sales tax has previously been paid. State officials frown upon efforts to circumvent the use tax requirements, as an airplane dealer in Mississippi recently learned.

Two men formed a partnership in Tate County, Mississippi, called Johnny Reb, ostensibly to buy and sell airplanes. Johnny Reb paid no tax on the planes it purchased. Therefore Johnny Reb either had to sell the planes – and collect Mississippi’s 3% sales tax – or pay an identical amount in use tax if it used the planes for any other purpose.

According to Mississippi officials, Johnny Reb did neither. Instead, a state audit revealed the partners were using planes for personal use and, in effect, running a charter air service. Indeed, Johnny Reb’s tax returns and website identified it as a “charter” or “airplane leasing” business, not a dealership. Based on this information, the Mississippi Department of Revenue assessed Johnny Reb for unpaid use taxes (plus interest) of more than $160,000.

Johnny Reb appealed the department’s assessment to the Tate County Chancery Court. The Chancery Court is a trial court that handles certain administrative cases. The chancery judge reversed the department’s decision. He re-examined the facts of the case, including new information presented by Johnny Reb, and determined the company really was a dealership exempt from use tax. And even though there was evidence Johnny Reb used its planes to transport passengers, that was not the company’s “principal business” and it never made a profit from providing charter service.

But in a decision issued on Oct. 14 of this year, the Mississippi Court of Appeals reversed the chancery judge and reinstated the department’s original use-tax assessment. The appeals court said the chancery judge exceeded his authority in questioning the department’s determination of the facts. A chancery court may not reverse a tax decision because he personally disagrees with it; rather, he must find there was no “substantial evidence” supporting it. That was not the case here.

Moreover, the Court of Appeals said the use tax applies to Johnny Reb regardless of its “principal business” or whether it made a profit on charters. The department agreed Johnny Reb was primarily in business to sell planes. The problem was that it wasn’t doing that. It was using the planes, which meant it had to pay a use tax.

S.M. Oliva is a writer living in Charlottesville, Virginia. He edits the international legal blog Bonham’s Cases.

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Oct 272014
 

New York State court case highlights differences between states when it comes sales tax refund procedures

Class actions seeking sales tax refunds are becoming more prevalent. As noted in “Papa John’s in lawsuit over sales tax on delivery fees,” back in July a federal judge in Miami denied a motion to dismiss a class action against pizza-delivery giant Papa John’s over allegations of improperly charged sales tax on its $3 delivery fees. More recently, on Sept. 30 a federal judge in New York dismissed a similar lawsuit against Home Depot. The New York decision illustrates the difference in state approaches to addressing claims for sales tax refunds.

Home depot sales tax on tool rentalThe lead plaintiff in the New York case is a man who rented three pieces of equipment from a Home Depot. He was charged 63 cents under a “tool rental agreement” with Home Depot. The plaintiff contends this was an unlawful sales tax collection, and he filed suit on behalf of any New York customer who signed a similar tool rental agreement.

In his Sept. 30 decision, U.S. District Judge William R. Skretny of Buffalo granted Home Depot’s motion to dismiss the class action complaint outright. Sketny said even if Home Depot incorrectly or illegally charged sales tax on its tool rental agreement, the plaintiff had to first seek a refund from the State of New York. State law allows any taxpayer to file a refund claim with the Department of Taxation and Finance within three years of the alleged improper payment. If the department rejects the refund, the taxpayer must then pursue an administrative appeal through the Department of Taxation, and if necessary, the New York State courts. Ultimately, Skretny said “the question of whether a vendor is collecting and remitting sales taxes in accordance with state law is a question that has been entrusted to the Department of Taxation in the first instance.”

In contrast, the federal judge who allowed the Papa John’s class action to proceed said it was unnecessary for the plaintiffs to pursue an administrative remedy before filing a lawsuit. Under Florida law, a person who makes an improper sales tax payment to a vendor must seek a refund from that vendor rather than the state. The judge explained Florida law allowed taxpayers to seek an administrative refund only when they directly paid the sales tax to the state. In contrast, Judge Skretny found New York law imposed an exclusive requirement to seek an administrative refund regardless of whether the tax was paid to the vendor or directly to the state.

S.M. Oliva is a writer living in Charlottesville, Virginia. He edits the international legal blog Bonham’s Cases.

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Oct 142014
 

Sales tax laws often distinguish between taxable products and non-taxable services. For example, a pizza restaurant may have to collect sales tax on the sale of pizzas, but not on any delivery fees attached to that sale. This distinction may not always be obvious, however, and many combined product-service providers run afoul of local tax authorities on this issue.

Pot-O-Gold

A divided Louisiana appeals court found that cleaning and disposal of waste from portable toilets was considered a taxable provision of tangible property rather than a non-taxable service regardless of the fact that the cleaning services were optional and also stated separately on the invoices.

Here is a recent example from Louisiana. The City of East Baton Rogue assesses a 2% tax on the “gross proceeds” from the sale or rental of “tangible personal property.” The city exempts most “services” from the tax.

Pot-O-Gold Rentals leases portable toilets and holding tanks to customers in East Baton Rogue. Pot-O-Gold also provides cleaning and disposal services, both for its own products and those sold by other companies. Based on its reading of local law, Pot-O-Gold collected the 2% sales tax on its toilet rentals, but not on its cleaning or disposal services, which were stated in a separate charge on customer invoices.

During a 2011 tax audit, the city of East Baton Rogue assessed Pot-O-Gold for nearly $70,000 in back sales taxes, together with penalties and interest. The city argued Pot-O-Gold read the services exemption incorrectly; any cleaning and disposal provided in connection with the rental of toilets is subject to tax. Pot-O-Gold challenged the city’s position in court.

A trial judge sided with Pot-O-Gold, but in a decision issued on Sept. 17, a divided Louisiana First Circuit Court of Appeal ruled in favor of the city. Judge Mitchell R. Theriot, writing for the majority, said since the “true object” of Pot-O-Gold’s toilet rentals was the provision of tangible property to customers, the entire transaction – including any cleaning or disposal services – was subject to local sales tax. It did not matter that the cleaning services were optional, or that Pot-O-Gold provided standalone, nontaxable services to other customers.

Judge J. Michael McDonald filed a dissenting opinion. He said the majority’s decision created “an absurd result”: Pot-O-Gold had to collect sales tax for cleaning its own toilets, but not for cleaning someone else’s. McDonald said this was inconsistent with other areas of Louisiana sales tax law. For instance, removing garbage from a dumpster is not considered a taxable event according to the Louisiana Department of Revenue. But, according to the majority, Pot-O-Gold’s services were merely “incidental” to the rental of the toilets, and therefore subject to tax.

S.M. Oliva is a writer living in Charlottesville, Virginia. He edits the international legal blog Bonham’s Cases.

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Oct 072014
 

The medical use of cannabis – marijuana – is controversial in the United States. But other countries, like Canada, allow licensed producers to cultivate and sell marijuana for medicinal purposes. A Canadian judge recently considered the question of how to classify such medical marijuana sales for sales tax purposes.

Cannabis in Canada

In Canada, medical marijuana is not taxable if obtained with a doctor’s prescription. But cannabis is subject to the GST if obtained through a legal private club with a just a medical certificate.

Unlike the United States, where sales tax is a purely state and local matter, Canada has a combined federal-provincial sales tax known as a Goods and Services Tax (GST). The GST applies to all sales of property and services, although many categories of transactions are subject to a “zero-rate,” which effectively exempts them from the tax. Under current law, the zero-rate applies to any “drug” listed on the government of Canada’s schedule of controlled substances. This exemption covers most prescription drugs.

Gerry Hedges grew cannabis in British Columbia for sale to a local medical marijuana club. The Canadian government said Hedges failed to collect more than $300,000 in back sales taxes on his cannabis. Hedges appealed the government’s assessment, arguing his cannabis constituted a zero-rate drug.

Judge Campbell J. Miller of the Tax Court of Canada heard the case. In a decision issued last month, Miller agreed with the government and said Hedges’ marijuana was subject to the GST. While the term “drug” includes marijuana, according to Miller, the GST law also requires the drug be made available only by prescription to qualify for the zero-rate. And Canadian law has been muddled on this point. Before 2013, a person only needed a certificate from a medical practitioner before legally obtaining medical marijuana, which according to Miller was not the same thing as a prescription one would give to a pharmacist. Last year, the government amended its regulations to require a prescription, which must be filled by a government-approved dispensary, rather than a private club like the one Hedges dealt with.

Miller said “[t]here is understandable confusion in the industry” as a result of the government’s changing regulations. There are effectively two ways to obtain medical marijuana. If it is obtained from a government dispensary with a prescription, it is considered a zero-rate drug under the GST. But if, as was the case with Hedges’ sales, marijuana is obtained through a private club with a medical certificate, the seller must collect the GST. Miller acknowledged his decision does not totally clarify the law, as “there remain gaps and inconsistencies” due to the government’s evolving approach to medical marijuana.

S.M. Oliva is a writer living in Charlottesville, Virginia. He edits the international legal blog Bonham’s Cases.

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Sep 302014
 

Sales and/or use tax rates have changed for 16 states in Zip2Tax products since September 2014. There were changes in Alaska, Alabama, Arizona, Arkansas, California, Idaho, Kansas, Minnesota, North Carolina, Nebraska, Nevada, Oklahoma, Ohio, Texas and Washington.

In Alaska, tax rates changed for Sitka, Skagway and Whittier.

In Alabama, tax rates changed for Enterprise, Childersburg, Greensboro, Marion, Tuskegee, Jackson, Trafford and Union.

In Arizona, tax rates changed for Flagstaff.

In Arkansas, tax rates changed for Crawfordsville, Ekins, Greers Ferry, Cleveland County, Crawford County and Crittenden County.

In California, tax rates changed for Anderson, Cotati, Davis, Hayward, San Pablo, Truckee and Watsonville.

In Idaho, tax rates changed for Nez Perce County.

In Kansas, tax rates changed for Fairway and Mulvane.

In Minnesota, tax rates changed for Douglas County.

In North Carolina, tax rates changed for Davidson County.

In North Dakota, tax rates changed for Burleigh County, Leeds, Morton County, Watford City and West Fargo.

In Nebraska, tax rates changed for Fairfield, Hickman, Atkinson and La Vista.

In Nevada, tax rates changed for Carson City.

In Oklahoma, tax rates changed for the counties of Greer, Latimer, Marshall, Washita and Logan and the cities of Kiowa, Kaw City and Chouteau.

In Ohio, tax rates changed for Erie County.

In Texas, tax rates changed for Tatum, Aubrey, Annetta, Fayetteville, Lakeport, Rogers, Shavano Park, Terrell Hills, Lucas and Tuscola.

In Washington, tax rates changed for Marysville TBA.

There were 12 states with ZIP code changes effective after September 2014 including Alabama, California, DC, Delaware, Massachusetts, North Dakota, New Hampshire, New Mexico, Ohio, Oregon, Tennessee and Texas.

Download the full ZIP code change documentation.

Angel Sauer

Angel Sauer, sales tax research team leader

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Sep 292014
 

Marketplace-Fairness-Act

November is lame duck season

Senate Majority Leader Harry Reid (D-Nev.) has placed passage of the Marketplace Fairness Act (MFA) at the top of his post-election priority list claiming he’ll “do whatever it takes to get that done.”

Apparently getting that legislation passed is high enough of a priority to cause him to bundle it with the Internet Tax Freedom Act (ITFA), a soon-to-expire act which prevents taxes on Internet access. ITFA not only has widespread popular support but lends urgency to the long-languishing MFA.

But getting the legislation passed through the House this year is anything but a done deal. Both Speaker John Boehner (R-Ohio) anlame duck congressd Judiciary Committee Chairman Bob Goodlatte (R-Va.) have said they oppose the MFA.

Rep. Jason Chaffetz (R-Utah) is working on a compromise but a spokesperson for Chaffetz said it was too soon to know whether a bill could be ready by year’s end.

“We’re always working to find something that will attract the necessary votes in the House to pass,” Senate Majority Whip Dick Durbin (D-Ill.) said in September. Durbin is one of the bill’s top supporters, along with Sens. Lamar Alexander (R-Tenn.) and Mike Enzi (R-Wyo.).

Jason Brewer, of the Retail Industry Leaders Association, a supporter, said that pairing the two tax bills allowed retail groups to make the case that their measure wasn’t an “Internet tax. “For every member that is saying, ‘Let’s get ITFA done,’ there’s another member saying, ‘Let’s get both done,’ ” Brewer said.

Reid faces opposition even from within his own party. Senate Finance Committee Chairman Ron Wyden (D-Ore.) warned his colleagues that anyone trying to combine the two bills was “holding the Internet economy hostage.” “Anyone who votes for passing MFA alongside ITFA is voting to repeal the Internet Tax Freedom Act,” Wyden said.

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Sep 262014
 

The U.S. Constitution grants Congress the exclusive power to regulate “commerce with the Indian tribes,” a general term used to describe indigenous Native American groups. The federal government presently recognizes 562 American Indian tribes representing nearly 2 million individuals. The secretary of the interior oversees tribal reservations, and federal law exempts such lands from state and local taxes, including sales tax.

Indian reservation sales taxThe scope of this exemption is presently the subject of a dispute between Florida’s Department of Revenue and the Seminole Tribe of Florida, a group of about 2,000 Native Americans with six reservations located throughout the state. The Seminole lease parts of their land to outside commercial businesses. The department’s executive director, Marshall Stranburg, argued these leases are subject to Florida’s 6% “transient rental tax,” a form of sales tax on commercial property. The Seminole replied federal law prevents Stranburg from requiring the tribe to collect such a tax.

On Sept. 5, 2014, U.S. District Judge Robert N. Scola, Jr., of Miami agreed with the Seminole and granted the tribe’s motion for summary judgment against Stranburg. Scola said the secretary of the interior’s regulations governing Indian tribes clearly prohibit a state from assessing any form of tax on the “permanent improvements” or “activities conducted” on restricted reservation lands, including leases to non-Indians. While acknowledging higher federal courts, including the U.S. Supreme Court, have not directly addressed this particular situation, Scola was confidant current law preempted Florida’s authority to collect sales tax on the Seminole leases.

Scola said the courts should defer to the secretary’s “comprehensive analysis” of the impact of state taxes on Indian tribes. Scola noted the Interior Department, through its Bureau of Indian Affairs, deals with tribes on a day-to-day basis and therefore understands the “chilling effect” Florida’s sales taxes could have on Seminole lands. At a minimum, such taxes reduce the amount of money available to the Seminole for the benefit of its members.

Scola also rejected the Department of Revenue’s efforts to tax the utility services provided to the Seminole. Florida assesses a 2.5% tax on the “gross receipts” of the delivery or sale of gas or electricity to a “retail consumer.” Scola determined that this was an “impermissible direct tax” on the Seminole Tribe, which could not be collected on any utilities delivered to reservation lands.

The Florida Department of Revenue may still appeal Scola’s decision to the U.S. Eleventh Circuit Court of Appeals in Atlanta.

S.M. Oliva is a writer living in Charlottesville, Virginia. He edits the international legal blog Bonham’s Cases.

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Sep 242014
 

Minnesota high court finds that customized software sales tax exempt only if prewritten portion stated separately on invoice

computer software invoiceSales tax exemptions often turn on matters of form over substance. How you bill a client – not what you bill them for – can determine whether you must collect sales tax. A Minnesota software company recently learned that painful lesson after losing a battle in state court over the assessment of back sales taxes.

The company, LumiData, provides sales-tracking software to retailers. According to LumiData, each customer purchases a custom software package tailored to their needs. The Minnesota-based company did not collect sales taxes on dozens of these sales between 2005 and 2008. In 2009, Minnesota’s commissioner of revenue audited LumiData and assessed more than $233,000 in back sales taxes, together with over $65,000 in penalties and interest.

Under Minnesota law, the sale of “prewritten computer software” is subject to sales tax. This excludes software “that is not designed and developed by the author or other creator to the specifications of a specific purchaser.” LumiData argued its software fell within this exclusion. But the commissioner disagreed, that LumiData did not separately state any “customization” charges in its customer invoices, as the law requires. LumiData replied the entire software package was customized and therefore a separate charge should be unnecessary.

Unfortunately, neither Minnesota’s Tax Court nor the state’s Supreme Court agreed with LumiData. In a decision issued on Sept. 10th of this year, the Minnesota Supreme Court unanimously affirmed the findings of the commissioner and the court holding LumiData liable for sales tax on all of its prior software sales. Justice Wilhelmina M. Wright authored the Supreme Court’s opinion. She concluded while LumiData customized its software for each customer, the overall package represented “a combination of prewritten and customized software.” Therefore the burden was on LumiData to state a separate charge for customization in order to receive a sales tax exemption.

Wright said LumiData could not simply declare its entire package was customized and therefore exempt from sales tax. She credited the Tax Court’s finding that LumiData failed to provide any evidence – beyond the self-interested testimony of its own employees – proving its entire fee was related to customization.

Wright also upheld the commissioner’s assessment of penalties against LumiData for failing to pay its sales taxes on time. Normally a taxpayer can avoid such penalties in Minnesota if it relied upon the advice of its accountant. But here, Wright said LumiData failed to even ask its accountant for a formal opinion.

S.M. Oliva is a writer living in Charlottesville, Virginia. He edits the international legal blog Bonham’s Cases.

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