On January 15, 2019, The New York State Department of Taxation and Finance released Notice N-19-1, Notice Regarding Sales Tax Registration Requirements for Businesses with No Physical Presence in New York State.
Click here for Notice N-19-1 https://www.tax.ny.gov/pdf/notices/n19-1.pdf
The Department of Taxation and Finance is using a provision that already exists in the sales tax law [Sec. 1101(b)(8)(iv); Reg. § 526.10(a)4)] to apply economic nexus thresholds to remote sellers who have no physical presence in the state. This language was added to the statute in September 1989 and was previously unenforceable until Quill’s physical presence requirement was overturned by the Wayfair decision in June 2018. New York’s threshold for economic nexus will be as follows:
- More than $300,000 in sales of tangible personal property delivered in the state AND more than 100 sales of tangible personal property delivered in the state in the immediately preceding four sales tax quarters.
This is a higher threshold than what is imposed by South Dakota ($100,000 in sales or 200 sales delivered into state) and most other states including California, and is rational considering that New York is one of the largest states in terms of population and economy size. The fact that the threshold includes both sales dollars AND sales transactions is also significant, as remote sellers who make a high volume of low-dollar sales to New York customers may not potentially have to register if their sales are not in excess of $300,000 in New York in the four immediately preceding quarters. Keep in mind that New York sales tax quarters are not based on a calendar year when reviewing your sales dollars and transactions.
What is concerning about this Notice, is that the Department is indicating that these economic nexus provisions immediately became effective upon the Wayfair decision, and that sellers who meet the above threshold should register immediately, if they have not already done so. At this time, there is no guidance about when remote sellers are expected to comply with these provisions or whether the Department expect sellers to comply retroactively back to when Wayfair was decided. This could create compliance issues for remote sellers selling tangible personal property to customers in the State. According to the Department’s website, additional information, including FAQ’s are forthcoming.
In the meantime, should you have any questions regarding New York or any other states’ filing requirements for remote sellers pursuant to the Wayfair decision, please contact Tom Mazurek at 716.633.1373 or by email at .