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Amazon and Other "Nexus Expanding" Laws - By State Summary

author photo of Sylvia F. Dion

It seems every day we hear about one state or another enacting some type of legislation aimed at requiring out-of-state online retailers to collect tax on sales to customers in states enacting these laws.

This seeming flurry of state expanding nexus laws isn’t just imaginary – it's really happening!

Without a doubt, states have been fueled by their frustration at our U.S. Congress’s inability to pass federal remote seller legislation, energized by states that are willing to blatantly defy the Quill standard by adopting an economic nexus standard for sales tax, and encouraged by the U.S. Supreme Court’s recent decision to “bless” Colorado’s notification and reporting law.

So today I’m kicking off a new 5-part series which will begin with a recap of which states have enacted some type of nexus expanding law, notification and reporting law, or that have enacted or adopted an economic nexus standard for sales tax. This first post in the series will provide a by–state summary in an easy to view chart with a brief description of the various types of provisions and other relevant information (you'll find a decription of each type of provision in the notes at the end of the chart). The series will continue with an in-depth look at each specific type of provision, including examples and information to help enhance your knowledge. The series will then turn its focus on the newest proposals making their way through the state legislatures, including new approaches being considered by states in an effort to increase tax collections from online sales, such as legislation which would transfer the collection and remittance responsibilities to marketplace providers such as Amazon.com.

So, without further ado, following is a chart which shows as of March 1, 2017, the states that have enacted a nexus expanding or other provisions aimed at online remote retailers, the type of provision enacted, and other relevant information.

Note that the provisions falls into five different categories:

  • Click-through,
  • Affiliate (Related Party),
  • Notification Only,
  • Notification & Reporting, and
  • Economic Nexus.

(At the end of the chart you will find notes providing a brief description of each type of provision.)

Amazon and Other "Nexus Expanding" Laws - By State Summary (3/1/2017)

STATE

YEAR ENACTED (Effective Date in Parenthesis)

CITATION OR LEGISLATIVE BILL

TYPE OF NEXUS PROVISION (See Notes at the End of Chart for an Explanation of Each Type Provision)

Alabama

2015 (Jan 1, 2016)

Alabama (Reg. 810-6-2-.90.03)

Economic Nexus (adopted via Regulation). (AL sales > $250K plus engaging in specfic activities. Also see our prior post for more on Alabama's Economic Nexus provision.

Arkansas

2011 (Oct 24, 2011)

Ark. Code Ann. §26-52-117(d)-(e); Ark. Code Ann. §26-52-117(b)(1)-(5)

Click-through, ($10,000) [Note A]

Affiliate (related party) [Note B]

California

2011 (Sept 15, 2012)

Cal. Rev. & Tax Code §6203(b)(5)(A); Cal. Rev. & Tax Code §6203(c)(4)

Click-through ($10,000; $1,000,000) [Note A]

Affiliate (related party) [Note B].

See our prior posts on the enactment, repeal and delayed effective date of the California law.

Colorado

N&R enacted 2010 (July 1, 2017)

Affiliate Nexus enacted 2014 (July 1, 2014)

Colo. Rev. Stat. §39-21-112(3.5)

Colo. Rev. Stat. §39-26-102(3)(d)(I)(A)-(E)

Notification & Reporting [see Note D for the significance of the US Supreme Court's final action]

Affiliate (related party) [Note B]

Connecticut

2011 (July 1, 2011)

Conn. Gen. Stat. §12-407(a)(12)(L); Conn. Gen. Stat. §12-407(a)(15)(A)(vi)

Click-through ($2,000) [Note A]

Affiliate (related party) [Note B]

Georgia

2012 (Oct 1, 2012)

Ga. Code Ann. §48-8-2(8)(M); Ga. Code Ann. §48-8-2(8)(K), (L)

Click-through ($50,000) [Note A]

Affiliate (related party) [Note B]

Illinois

First enacted in 2011 (July 1, 2011); revised version enacted 2014 (Jan 1, 2015)

35 Ill. Comp. Stat. 105/2 & 110/2

Click-through ($10,000) [Note A]

Challenged and held to be preempted by the Federal Internet Tax Freedom Act. Revised version enacted in 2014 with effective date of Jan 1 2015)

Kansas

2013 (July 1, 2013)

Kan. Stat. Ann. §79-3702(h)(2)(A)-(C)

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

Louisiana

2016 (March 14, 2016)

H.B. 30, 2016 1st Extra.Sess. (La. 2016)

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

Maine

2013 (Sept 17, 2013)

Me. Rev. Stat. Ann. tit. 36, §1754-B(1-A)(A)-(B); Me. Rev. Stat. Ann. tit. 36, §1754-B(1-A)(C)

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

Michigan

2015 (Oct 1, 2015)

Mich. Comp. Laws §205.52b(3); Mich. Comp. Laws §205.52b(1)

Click-through ($10,000; $50,000) [Note A]

Affiliate (related party) [Note B]

Minnesota

2013 (July 1, 2013)

Minn. Stat. §297A.66(4a); Minn. Stat. §297A.66(4)(a)(a)-(2)

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

Missouri

2013 (Aug 28, 2013)

Mo. Rev. Stat. §144.605(2)(e).

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

Nevada

2015 (click-through effective Oct 1, 2015; affiliate nexus effective July 1, 2015)

2015 Nev. A.B. 380

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

New Jersey

2014 (July 1, 2014)

N.J.S.A. 54:32B-2(i)(1)

Click-through ($10,000) [Note A]

New York

2008 (June 1, 2008)

N.Y. Tax Law §1101(b)(8)(vi)

Click-through ($10,000) [Note A]

North Carolina

2009 (Aug 7, 2009)

N.C. Gen. Stat.§105.164.8(b)(3)

Click-through ($10,000) [Note A]

Ohio

2015 (July 1, 2015)

Ohio Rev. Code Ann. §5741.01(I)(2)(g); Ohio Rev Code Ann. §5741.01(I)(2)(a)-(f)

Click-through ($10,000) [Note A]

Affiliate (related party) [Note B]

Oklahoma

Notification - 2010 (July 1, 2010)

Expanded version N&R - 2016 (Nov 1, 2016)

Affiliate Nexus - 2016 (Nov 1, 2016)

Okla. Stat. Ann. tit. 68, §1406.1

Okla. Stat. Ann. tit. 68, §1406.2(A)

2016 Okla. H.B. 2531, §3

Notification only enacted in 2010 [Note C]

Notification & Reporting (law amended in 2016 to include requirement to send direct and specific notification to Oklahoma purchasers)

Affiliate (related party) [Note B

Pennsylvania

2011 (Sept 1, 2012)

Penn. Dept. of Rev., Sales and Use Tax Bulletin 2011-01

Click-through (no threshold)

Affiliate Nexus (related party)

No enacting legislation, both adopted through administrative guidance - Bulletin 2011-01 clarified that activities such as engaging in-state marketing affiliates create nexus

Rhode Island

2009 (July 1, 2009)

R.I. Gen. Laws §44-18-15(a)(2);

Click-through ($5,000) [Note A]

South Dakota

Notification - 2011 (March 11, 2011)

Economic Nexus - 2016 (May 1, 2017)

S.D. Codified Laws Ann. §10-63-2

S.B. 106, Laws 2016, § 1

Notification [Note C]

Economic Nexus (SD sales > $100K or 200+SD transactions). Also see our prior post for more on South Dakota's Economic Nexus provision. (Important Development: On 3/6/2017, the SD 6th Judicial Court ruled that South Dakota's economic nexus legislation is unconstitutional.)

Tennessee

Click-through - 2015 (July 1, 2015)

Economic nexus - 2016 (Jan 1, 2017)

2015 Tenn. H.B. 644

TN Rule 1320-06-01-.129

Click-through ($10,000) [Note A]

Economic Nexus (adopted via Regulation) (TN sales > $100K and regular/systematic solicition. Also see our prior post for more on Tennessee's Economic Nexus provision

Texas

2011 (Jan 1, 2012)

Tex. Tax Code Ann. §151.107(a)(3) & Tex. Tax Code Ann. §151.107(a)(8

Affiliate (related party) [Note B]

Vermont

Click-through - 2011 (Dec 1, 2015),

Economic Nexus and Notification enacted 2016 (July 1, 2017 – but see comment)

Vt. Stat. tit. 32, § 9701(9)(I); Vt. Stat. Ann. tit. 32, §9783(b)-(c)

Vermont H.B. 873

Click-through [Note A}

Economic Nexus (VT sales > $100K or 200+ VT transactions) (not effective until the later of July 1, 2017 or the Quill physical presence requirement is abolished)

Notification [Note C]

Virginia

2012 (Sept 1, 2013)

Va. Code Ann. §58.1-612

Affiliate Nexus (related party) [Note B]

Washington

2015 (Sept 1, 2015)

Wash, Rev, Code §82.08.052(1)

Click-through ($10,000) [Note A]

Economic Nexus (for Wholesale Sales)

Wyoming

2017 (July 1, 2017)

H.B. 119; Wyo. Stat. Ann. § 39-15-501(a)

Economic Nexus (WY sales > $100K or 200+ WY transactions)


The following notes provide a brief description of the various type of provisions so that readers have a general idea of the provisions while reviewing the chart above.

Note A: Click-through nexus is what many people think of when they hear the term “Amazon Law.” These laws say that a presumption of nexus is created when an out-of-state retailer contracts with in-state marketing affiliates - businesses or individuals who post web-links on their in-state website that refer their visitors to the online store of the internet retailer with whom they contract and that are compensated by commission or otherwise for referred sales. All states that have click- through nexus laws generally have a "referred sales" revenue threshold that must be exceeded in order for the nexus presumption to apply. You may have noticed that $10,000 appears in parenthesis after "Click-through" in most of the states above. This means that the amount of referred sales that originate from weblinks on the in-state marketing affiliates' websites must exceed exceed $10,000 combined. As an example, lets say an out-of-state online retailer has 3 in-state marketing affiliates each with a link on their website that lead to the out-of-state retailer's store. Now let's say that in the prior year, visitors to the 3 marketing affiiates websites ended up making total puchases of $12,000 at the online retailer's store. in this example, the out-of-state retailer would be presumed to have nexus in the state with the click-through nexus law. It's easy to see from this example, that click-through nexus doesn't just impact the large mega online retailers.

Note B: Many states have what is referred to as affiliate (related party) nexus provision. Affiliate nexus laws attribute nexus to an out-of-state retailer with a corporate affiliate, such as a parent or subsidiary company, operating in the state and engaging in the type of activity that the state law says creates affiliate nexus. An affiliate nexus provision might say that the out-of-state retailer is presumed to have nexus in the state if the remote retailer's corporate affiliate engages in activites that benefit the out-of-state retailer, such as as providing fulfillment or repair services for property sold by the out-of-state retailer, or where the in-state corporate affiliate uses the same or similar trademarks or tradenames in the state as the out-of-state retailer, The affiliate nexus laws usually require that the in-state and out-of-state companies have some ownership connection.

Note C: Notification and Notification & Reporting laws impose requirements on out-of-state retailers who do not meet the state's nexus threshold. Since these non-nexus retailers are not required to collect and remit the state's sales or use tax, the state imposes other requirements on the out-of state retailer that aim to increase the awareness of and compliance with a states use tax laws such as by requiring out-of-state retailers to notify their in-state customers of their requirement to pay use tax and requiring the out-of-state retailer to submit certain information to the state taxing agency.

Note D: Colorado's Notification & Reporting law was originally enacted in 2010 - but was almost immediately challenged as unconstitutional by the Direct Marketing Association. After making its way up and down and across the court system over a six year period, on December 12, 2016, the U.S. Supreme Court denied cert to the DMA’s petition and the Colorado Department of Revenue’s conditional cross-petition for writ of certiorari. This final inaction by the U.S. Supreme Court meant that the 10th Circuit Court’s prior decision affirming the constitutionality of Colorado’s notification and reporting law was allowed to stand. The Colorado Department of Revenue recently announced that that its Notification & Reporting law would finally go into effect on July 1, 2017.

There you have it! A summary as of March 1st of the states that have enacted nexus expanding, notification and reporting and economic nexus laws. The list, I guarantee you, is sure to increase. I'll continue the series with a more detailed look at each of provision, and an update on proposals under consideration by state legislatures in 2017.

If you have any questions or comments, please feel free to post them below. Alternately, if you are an extablished on-line retailer with multi-state activities, and you'd like to have a complimentary consultation regarding these (or other) issues, please select the "Request a Consultation" link on my FIRM PROFILE page, to contact me.

About the Author: Sylvia F. Dion, MPA, CPA, is the Founder and Managing Partner of SALT Consulting firm, PrietoDion Consulting Partners LLC. Sylvia has been covering Internet Sales Tax developments for SalesTaxSupport’s Issues blog since 2011. Sylvia is also the “U.S. Sales Tax for Foreign Sellers” contributor for SalesTaxSupport’s Industry blog and the “Massachusetts Sales Tax” contributor for SalesTaxSupport’s State blog. You can follow Sylvia on twitter and on Google+ and can contact Sylvia via e-mail at sylviadion@prietodiontax.com or at 978-846-1641.

Other recent “Internet Tax / E-Commerce” posts by Sylvia F. Dion, CPA:

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