Congress Hears Your Problems with Wayfair

If your business has been struggling to comply with new sales and use tax laws, Congress is listening.

A subcommittee on Economic Growth Tax and Capital access met on March 3 to discuss how businesses are being impacted by Wayfair.  The meeting was called to bring to the attention of national lawmakers  just how burdensome sales and use tax compliance can be for a business post Wayfair.

Attention captured.  

Wayfair has made collecting and remitting sales tax across 10,814 jurisdictions “nightmarishly complex” and “this places new burdens on small businesses in the form of increased compliance costs and a higher probability of error when collecting taxes,” according to testimony delivered to the Committee recently at a hearing entitled, “South Dakota v. Wayfair, Inc.: Online Sales Taxes and Their Impact on Main 

Street.” One 30-employee online retailer of school, library and office furniture estimated that they’ve devoted some 1,500 hours and more than $75,000 to compliance so far.
 
The testimony aimed to paint how Wayfair “will continue to impose a barrier for businesses to participate in interstate commerce, which could hinder future economic growth,” read the Congressional announcement. 

 It’s encouraging to learn that finally national lawmakers might be listening to this new kind of tax problem. During the hearing, members heard from entrepreneurs about how the ruling is being applied in individual states and their overall experience complying with the new requirements.

The hearing also covered steps the federal government can take to ease the compliance burden on small firms and ensure the ruling is not hindering business growth.

The major complaints here were:  

• There are often prohibitive costs to ensuring that the compliance is performed correctly, whether in-house or outsourced.

• The scattershot ways in which states have reacted to Wayfair could impair the ability of businesses to grow and impair the economy.

• Few small businesses are in compliance. Others try to comply and fail “miserably,” hoping they can just keep under the radar.

• Businesses need tax policy that is “simple and certain, not ever-changing.”

• The Wayfair decision has also inspired states to adopt economic nexus legislation that reaches “well beyond the sales tax issues specifically addressed.”

Those testifying raised other problems with Wayfair and small businesses, such as the definition for “transaction.” Is it each line within an invoice, an entire invoice or a contract billed in installments? Questions you may have agonized over in your own business are at last being heard on Capitol Hill.

And sympathetically, it seems: Businesses are also caught in what testimony called “a rushed integration project,” having to collect sales and use tax without valid exemption certificates on file. Automating compliance also proved a dead end: Regional accounting firms were not fully informed or capable of assistance, and national accounting firms declined to work with local businesses.

Recommendations for government action include:

• Creating more consistency between sales and income tax nexus rules;

• Clarifying definitions for marketplace facilitators;

• Standardized measurement periods for economic thresholds; and

• A 90-day grace period for sales tax obligations.

Maybe this is the first step in easing this crushing business burden, as Congress looks to re-examine past legislation to help businesses with tax complications. The most recent proposed legislation has included the “Protecting Businesses from Burdensome Compliance Cost Act (H.R. 379), the “Stop Taxing Our Potential Act (S. 128) and the “Online Sales Simplicity and Small Business Relief Act (H.R. 1933). Both H.R. 379 and S. 128 propose to reinstate a physical presence requirement in order to collect sales and use tax.

As Congress moves forward to examine the issues left unresolved by the Wayfair decision, it should keep small, rather than mid-sized or large businesses, at the forefront of its mind. Small businesses are the lifeblood of the U.S. economy,” the hearing report concluded.

Want to contact members of the Subcommittee? Some might be from your own state. They are: chairman Andy Kim (D-NJ); ranking member Kevin Hern (R-OK); Aumua Amata Coleman Radewagen (R-American Samoa); Jason Crow (D-CO); Ross Spano (R-FL); Brad Schneider (D-IL); Sharice Davids (D-KS); Pete Stauber (R-MN); Antonio Delgado (D-NY); and Andriano Espaillat (D-NY)

Sales and use tax collection is constantly changing. We can help you stay on top of critical news and determine your liabilities and credits. Contact us to learn about the latest developments in sales-tax nexus and what they mean to you and your company.