Report

New York Sales and Use Tax Nexus

 
Sales Tax: New York State imposes a sales tax on retail sales of both tangible personal property as well as certain enumerated services. Tax Law § 1105. 1. Sales tax is imposed on the receipts from every (non-exempt) retail sale of tangible personal property or taxable service delivered by a vendor to a purchaser in New York. 20 N.Y.C.R.R. § 527.1(a), et seq. 2. Sales tax is a “transaction tax,” meaning the liability for the tax occurs at the time of the transaction. 3. Sales tax is a “destination tax,” meaning the place of delivery (i.e.,the place where possession is transferred from seller to buyer) controls the incidence and rate of tax. 4. It is presumed that all receipts from sales of tangible personal property or taxable services are taxable. The burden to prove otherwise is on the vendor or the customer. Tax Law 1132(c)(1).

Faculty

Debra S. Herman

Hodgson Russ LLP

Agenda

I. Brief Overview of New York Sales and Use Taxes
II. Nexus Generally – “Jurisdiction” to Tax
III. U.S. Constitution – Origins of Nexus
IV. Quill Corp. v. North Dakota, 504 U.S. 298 (1992): Commerce Clause Requires In-State Physical Presence
V. Physical Presence Requirement – Type of Tax Matters!
VI. How Much Physical Presence Is Required??
VII. Advertising – When Can Advertising in New York by an Out-Of-State Business Constitute an In-State Physical Presence??
VIII. Attributional Nexus – How the Presence of Others in a State Can Be Enough
IX. Who Is a New York “Vendor”??
X. Ok, I Am a “Vendor,” So What??
XI. “Amazon” Click Through Nexus and Other Remote Seller Reporting
Statutes: New York and Multistate Update
XII. Proposed Federal Sales Tax Legislation
XIII. I Have Nexus. I Haven’t Filed. What Can I Do??

Faculty

Debra S. Herman

Hodgson Russ LLP

  • Partner, Hodgson Russ LLP, New York, N.Y.
  • Practice spans most tax matters, but focuses primarily on New York State, New York City and multistate tax issues, working with clients from both a planning and an audit and controversy viewpoint and on complex transactions
  • Extensive experience counseling clients with respect to corporate income tax, unincorporated business tax, flow-through entity income taxation, sales and use taxes, and excise taxes on real property transfers
  • Widely recognized for experience in state and local taxation and is a nationally recognized author on state tax topics; co-wrote the BNA Portfolio “New York Sales and Use Taxes” and a bi-monthly article on New York State and New York City taxation in the New York Law Journal and writes a monthly column in the Journal of Multistate Taxation and Incentives on state and local tax matters before the U.S. Supreme Court
  • Currently a Vice Chair of the American Bar Association Section of Taxation’s State and Local Tax Committee, Executive Board; former Chair of the New York City Bar State and Local Tax Committee
  • J.D degree, American University Washington College of Law; LL.M. degree, New York University School of Law; B.A. degree, University of Madison

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