Should you charge sales tax on shipping?

Sales tax on shipping

Whether or not you should charge sales tax on shipping charges depends on several factors

Shipping charges may be exempt from sales tax if some or all of the following apply:

  1. Delivery by common carrier or USPS
  2. Charges stated separately and not bundled with other charges such as handling
  3. Shipping charges are not included in the price of the item
  4. Purchased items are tax exempt
  5. If shipment includes both exempt and taxable property the seller should allocate the delivery charge and tax the non-exempt portion.
  6. Charges paid by purchaser
  7. Delivery and billing by independent contractor who is not the seller and paid by the purchaser
  8. Delivery charges are optional
  9. Delivery is separately contracted
  10. Items delivered outside the state
  11. Retailer is engaged in a separate delivery business
  12. Shipment is made direct to the purchaser
  13. Shipment occurs after title passes to purchaser

 

Taxability of shipping rules by state

Some states apply sales tax on shipping based on the shipping agreement in relation to the item’s transfer of title to the purchaser while others treat shipping as a non-taxable service if contracted for independently. Some states try to merge these two approaches thereby creating a patchwork of regulations and opaque rules.

While not a fail-safe approach, here are a few best practices to improve your company’s chances of avoiding having to collect sales tax on shipping: Have the buyer pay the freight charges; bill the transportation charges separately following the sale; pass the title to the purchaser before shipping; and use a common carrier or the US mail.

Following is a list of the basic tax on shipping rules for each state and a few of their most general exceptions and caveats.

Refer to the numbered exemptions listed above

Alabama – Shipping is not taxable in Alabama (AL) if 1 and 2.

Arizona – Shipping is not taxable in Arizona (AZ) if 2.

Arkansas – Shipping is taxable in Arkansas (AR).

California – Shipping is not taxable in California (CA) if 1, 2, 7 or 13.

Colorado – Some shipping is taxable in Colorado (CO) except if 2, 3 and 8; certain localities may tax all shipping.

Connecticut – Shipping is taxable in Connecticut (CT) except 4.

District of Columbia – Some shipping is taxable in the District of Columbia (DC) except when 2 and 13.

Florida – Some shipping is taxable in Florida (FL) except when 2 and 8 or 2 and 13.

Georgia – Shipping is taxable in Georgia (GA) with certain exceptions.

Hawaii – Shipping is taxable in Hawaii (HI) except 10.

Idaho – Shipping is not taxable in Idaho (ID) if 2.

Illinois – Some shipping is not taxable in Illinois (IL) if 9.

Indiana – Shipping is taxable in Indiana (IN) but 5.

Iowa – Shipping is not taxable in Iowa (IA) if 2 or 9 but 5.

Kansas – Shipping is taxable in Kansas (KS) but 5.

Kentucky – Shipping is taxable in Kentucky (KY)

Louisiana – Shipping is not taxable in Louisiana (LA) if 2 and 13.

Maine – Some shipping is taxable in Maine (ME) except when 1 and 2 and 12 all apply.

Maryland – Shipping is not taxable in Maryland (MD) if 2.

Massachusetts – Some shipping is taxable in Massachusetts (MA) except when 2 and other exceptions.

Michigan – Shipping is taxable in Michigan (MI) except when 11 or 13 but 5.

Minnesota – Shipping is taxable in Minnesota (MN) but 5.

Mississippi – Shipping is taxable in Mississippi (MS)

Missouri – Some shipping is taxable in Missouri (MO) except when 2 and 8.

Nebraska – Shipping is taxable in Nebraska (NE) but 5.

Nevada – Some shipping is taxable in Nevada (NV) except 2 and 13.

New Jersey – Shipping is taxable in New Jersey (NJ) except when 4.

New Mexico – Shipping is taxable in New Mexico (NM)

New York – Shipping is taxable in New York (NY)

North Carolina – Shipping is taxable in North Carolina (NC) but 5.

North Dakota – Shipping is taxable in North Dakota (ND) but 5.

Ohio – Shipping is taxable in Ohio (OH) but 5 and except 6.

Oklahoma – Shipping is not taxable in Oklahoma (OK) if 2 and 3 but 5.

Pennsylvania – Shipping is taxable in Pennsylvania (PA) except when 4 or 7.

Rhode Island – Shipping is taxable Rhode Island (RI) except 7.

South Carolina – Shipping is taxable South Carolina (SC) except 13.

South Dakota – Shipping is taxable in South Dakota (SD) except 7 but 5.

Tennessee – Shipping is taxable in Tennessee (TN) except 7.

Texas – Shipping is taxable in Texas (TX) except 7.

Utah – Some shipping is taxable in Utah (UT) except when 1, 2 and 3 but 5.

Vermont – Shipping is taxable in Vermont (VT)

Virginia – Shipping is not taxable in Virginia (VA) if 2.

Washington – Shipping is taxable in Washington (WA) except 13.

West Virginia – Shipping is taxable in West Virginia (WV) except 1 , 2 and 7.

Wisconsin – Shipping is taxable in Wisconsin (WI) but 5.

Wyoming – Shipping is not taxable in Wyoming (WY) if 2.

As always, we recommend you consult with the department of revenue for any state in which your company has nexus and ask for a determination in writing whenever the rules are confusing or contradictory.

Tennessee assesses use tax on stored property

use tax on stored property

Tennessee assesses use tax on stored property

use tax on stored property such as a motor homeSometimes just storing valuable personal property can raise tax issues. A businessman in Tennessee recently learned this lesson when the state assessed more than $100,000 in use tax on stored property against him for keeping a motor home within the state’s borders. Although a lower court previously ruled in the businessman’s favor, a state court of appeals sided with the state’s tax collectors.

Ralph McCurry owns a one-member limited liability company that buys and sells “recreational parks and other real property.” Although McCurry organized his business in Montana, he maintained a residence in Tennessee. He purchased a motor home to serve as his mobile office. He did not pay any sales tax on the nearly $1 million purchase.

McCurry used the motor home between 2007 and 2012 to conduct business trips outside of Tennessee, but he spent at least six months out of the year at home. The Tennessee Department of Revenue argued this made McCurry liable for use tax on the motor home. The Department assessed McCurry approximately $103,000 in use taxes less a credit of about $27,000 for taxes previously paid to the State of Alabama on the same motor home.

McCurry sued the Department in Tennessee state court to overturn the assessment. A trial judge ruled against the Department, holding it could not assess use taxes against McCurry for a vehicle he used exclusively for business outside of Tennessee. The court said there were insufficient “minimum contacts” between Tennessee and McCurry to justify the tax assessment.

But in a decision issued on Nov. 14 of this year, a three-judge panel of the Tennessee Court of Appeals reversed the trial judge and upheld the Department’s assessment. Presiding Judge J. Steven Stafford, writing for the panel, said the trial court should have gone beyond the “minimum contacts” test and determined whether there was a “substantial nexus” between Tennessee and McCurry’s business. The United States Supreme Court has previously held a state cannot assess sales or use taxes without first establishing a substantial nexus exists.

Here, even though McCurry did not conduct business within Tennessee, he established a “physical presence” by storing the motor home there. He also “used” the motor home within Tennessee by traveling to and from his home. Stafford stated that this was enough to establish a substantial nexus in Tennessee, especially since McCurry previously agreed to pay use taxes to Alabama when he stored the same motor home in that state.

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

Eleven states hold Back To School sales tax holidays in August

Back To School sales tax holidays in August

Back To School sales tax holidays in August

Back to school sales tax holidayEleven states have already announced that they will be holding their annual Back To School sales tax holidays in August. Here is an up-to-date list of the dates for the various tax holidays as well as a summary of what’s exempted from the usual state taxes.

Alabama: August 1-3. The tax holiday includes clothing (<$100 per item); computers, computer software, and computer supplies (<$750 per item); school supplies, school art supplies, and school instructional material (<$50 per item).

Arkansas: August 1-3. Clothing (<$100 per item); clothing accessories or equipment (<$750 per item); school supplies, school art supplies, and school instructional materials (<$50 per item).

Connecticut: August 17-23. Clothing (<$300 per item); shoes (<$300 per item).

Florida: August 1-3. Clothing, shoes, and accessories (<$75 per item); school supplies (<$15 per item); computers and computer accessories (<$750 per item)

Georgia: August 1-2. School supplies and school instructional materials (<$20 per item); clothing and shoes (<$100 per item); computers and computers software (<$1,000 per item)

Louisiana: August 1-2. The Louisiana sales tax holiday is one of the most expansive and includes far more than school supplies, clothing, and computers:  “The exemption applies statewide to all consumer purchases of tangible personal property, other than vehicles subject to license and title and meals furnished for consumption on the premises where purchased, including to-go orders, provided that the property is not for use in a business, trade, or profession.”

Missouri: August 1-3. Clothing (<$100 per item); school supplies (<$50 per purchase), computer software (taxable value of <$350); personal computers (<$3,500); computer peripheral devices (<$3,500).

New Mexico: August 2-4. Clothing and shoes (<$100 per unit); desktop, laptop, tablets, or notebook computers (<$1,000 per item); computer hardware (<$500); school supplies for use in standard classrooms (<$30 per unit).

Tennessee: August 1-3. Clothing ($100 or less); school supplies ($100 or less); and computers ($1,500 or less).

Texas: August 8-10. Clothing; school supplies; shoes; and backpacks (<$100 per item)

Virginia: August 1-3. School supplies (<$20 per item); clothing and footwear (<$100 per item).

Tennessee counties seek share of online tax collections

online tax collections

online tax collections

Tennessee online tax collectionCounty commissioners throughout the state of Tennessee are waking up to the fact that they aren’t seeing their share of online tax collections from newly collected sales taxes from online giants like Amazon. In fact, Tennessee doesn’t even have legislation in place to distribute the local option portions of the sales tax collected from out of state retailer’s sales.

Carmin Lynch, 9th District commissioner, drew up a resolution which reads “Local option sales tax is the second largest source of revenue for most local governments. The Cumberland County legislative body hereby requests that our state legislators initiate appropriate legislation to ensure that local option sales tax collected and remitted to the state of Tennessee is distributed to local governments based upon the residence and ship to address of the purchaser, who paid the tax; and further request the Tennessee County Services Association and County Mayor’s Association work with the state legislature and Department of Revenue to more equitably distribute local option sales tax collected by online retailers.”

The resolution will be sent to other county legislative bodies seeking support before it is presented to the General Assembly.

Amazon now collecting online sales taxes in three more states

online sales taxes

online sales taxes

Amazon collects online sales tax from 3 more statesMore states across the country have passed laws requiring Amazon to collect its online sales taxes. As of January 1st, 2014 shoppers in Indiana, Nevada, and Tennessee will now need to pay online sales taxes when they shop with the online retailer.

At this point, 19 states now have laws that require Amazon to collect sales taxes. North Carolina is set to join this group as well starting February 1st. South Carolina legislators have also passed a law that will require Amazon to start collecting sales taxes starting in 2016.

Amazon continues to battle against these laws. Company representatives stand by their reasoning that as an online retailer, Amazon shouldn’t be held to the same tax laws as a company with a physical presence in a state.

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