13 Oct 2019

New York Sales Tax Economic Nexus Update

Since the United States Supreme Court’s decision in South Dakota v. Wayfair, 585 U.S. ___ (2018), on June 21, 2018, state governments have been rapidly rewriting their rules to impose economic nexus (as opposed to physical presence) standards for sales and use taxes. At present, 43 states have implemented Wayfair-inspired rules. In the past six months, New York has been busy updating its own laws.

Interestingly, New York had its own sales tax economic nexus rule for remote sellers of tangible personal property in place prior to the Wayfair case, but it was seemingly dormant until the physical presence rule established in Quill Corp. v. North Dakota,504 U.S. 298 (1992), was overturned by Wayfair. Under New York’s remote seller rule, a business that had no physical presence in New York but had made more than $300,000 in sales of tangible personal property delivered in the state andconducted more than 100 sales of tangible personal property delivered in the state in the immediately preceding four sales tax quarters would be required to register as a sales tax vendor. In January 2019, New York issued Notice N-19-1 announcing this rule, which was effective immediately.

As discussed in the authors’ June 2019 column addressing New York’s 2020 Budget (“Tax Changes in the 2019/2020 New York State Budget,” http://bit.ly/2M6xlt0), New York further imposed sales tax economic nexus requirements upon marketplace facilitators and remote sellers. Under the budget, a person is not a marketplace provider if it lacks physical presence and for the immediately preceding four quarters can demonstrate that the cumulative total gross receipts of sales it made or facilitated in New York did not exceed $300,000 or that such person had not made or facilitated more than 100 sales in the state. The marketplace provider rules became effective June 1, 2019.

On May 31, New York issued Technical Guidance TSB-M-19(2)S, which set forth New York’s policy with respect to the new marketplace provider rules. Under the guidance, and similar to the budget, a person with no physical presence in New York that facilitates sales for marketplace sellers is required to register as a vendor if in the prior four quarters the cumulative total gross receipts from sales made or facilitated of tangible personal property delivered into the state exceeded $300,000 and that person made or facilitated more than 100 sales delivered into the state.