Massachusetts Joins Multistate Tax Commission Amnesty Program. For Most States, Amnesty Features Complete Tax Forgiveness. Urgent Action May Be Needed.

Boston – On August 18, 2017 Massachusetts joined 22 other participating states and the District of Columbia in offering a special limited-time tax amnesty through the Multistate Tax Commission’s Online Marketplace Seller Voluntary Disclosure Initiative.[1] For most participating states the tax amnesty features complete forgiveness of back taxes, penalties and interest! Massachusetts, not unexpectedly, may be an exception with a three-year lookback.[2] Here is what you need to know:

Which Taxpayers are Targeted for Amnesty?

The targets of this amnesty are Internet sellers who are members of the Fulfillment by Amazon program and similar programs sponsored by other online retailers. These targets are not physically present in the taxing state. These targets will sometimes be called FBA members.  See, also, Which Taxpayers Qualify for the Amnesty?

Which States Are Participating in the MTC Tax Amnesty?

Alabama, Arkansas, Colorado , Connecticut, District of Columbia, Florida, Idaho, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Missouri, Nebraska , New Jersey, North Carolina, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, and Wisconsin.

What Taxes Are Covered by the Amnesty?

• Sales Taxes
• Use Taxes
• Income taxes
• Franchise taxes
  

What Tax Relief Is Granted by the Amnesty?

• Complete forgiveness of sales and use taxes, including penalties and interest, arising from online retail sales activity in the state. But see below for Exceptions.

• Complete forgiveness of income and franchise taxes, including penalties and interest, arising from online retail sales activity in the state. But see below for Exceptions.

• Comment: Normally, when a taxpayer applies for voluntary disclosure relief with states through the MTC MVDP, the taxpayer will be required to file returns and pay back tax liability, plus interest, for the “lookback period” that the state uses, which is generally the prior three to four years or more, depending on the state’s law or policy.  The state will then waive tax liability, interest and penalties for the time period prior to the lookback period. Under this amnesty, however, most participating states waive taxes, penalties and for all prior tax periods, without regard to any lookback period, provided the taxpayer meets all amnesty requirements described below.

Are There Exceptions to the Look-Back Rule Discussed under the Above Comment?

The look-back exceptions[3] are Colorado, Massachusetts,[4] Nebraska and Wisconsin.

Are There Exceptions to Sale/Use Tax Relief?

Sales/Use taxes that have been collected but not remitted must be remitted along with penalties and interest.

Are There Exceptions to Amnesty from Criminal Prosecution?

People who collect but do not pay over sales/use taxes may have committed a serious crime. These people might be immune from criminal prosecution if they and their employers participate in the sales/use tax amnesty. Immunity from criminal prosecution, however, was not discussed in the Multistate Tax Commission announcement and is therefore not free from doubt.

Which Taxpayers Qualify for the Amnesty?

• A qualifying taxpayer, called an “online marketplace seller”, sells through the Internet using a marketplace facilitator (such as the Fulfillment by Amazon “FBA” program) to facilitate its retail sales. Generally, a “marketplace facilitator” is a person who (1) lists the taxpayer’s product on a website; (2) collects payment from the customer and transmits that payment to the taxpayer; and (3) provides fulfillment services for the taxpayer.

• A qualifying taxpayer has no property, employees, or agents in the state, except for its inventory stored in a third-party warehouse or fulfillment center located in the state.

• A qualifying taxpayer has not yet:

-          Registered with the state taxing authority;

-          Filed returns with such state for the tax type that the taxpayer is seeking voluntary disclosure relief for (sales/use tax, income/franchise tax, or both);

-          Made payments of such taxes to the state; or

-          Had any other prior contact with the state concerning liability or potential liability for such tax type.

What Are the Amnesty Starting and Ending Dates?

The amnesty period began yesterday, August 17, 2017. The amnesty applies for all applications filed with the Multistate Tax Commission on or before October 17, 2017.

What Are the Conditions of the Sales/Use Tax Amnesty?

To qualify for sales/use tax relief, described above, an otherwise qualifying taxpayer must agree:

• To register as a seller or retailer with the state;

• To timely collect, report and remit sales/use taxes;

• To file returns on all taxable retail sales to customers in the state prospectively as of the effective date of the voluntary disclosure agreement, which cannot be later than December 1, 2017.

If the taxpayer has any collected but unremitted sales/use tax, then the taxpayer must agree to remit such tax to the state, including penalties and interest.

What Are the Conditions of the Income/Franchise Tax Amnesty?

To qualify for income/franchise tax relief, described above, an otherwise qualifying taxpayer must agree:

• To timely file income/franchise returns arising from retail sales to customers in the state; and

• To timely pay such taxes due.

These income/franchise tax obligations begin with the taxpayer’s tax year that includes the effective date of the voluntary disclosure agreement, which cannot be later than December 1, 2017.  Thus, for calendar year taxpayers, state income/franchise tax returns must be filed and the related taxes paid for calendar year 2017.

How Are Amnesty Applications Made?

Applications are made electronically using the Multistate Tax Commission website. All requirements of the MTC website and the MTC’s Online Marketplace Seller Voluntary Disclosure Initiative must be met.

A taxpayer may choose which state and which tax type (sales/use tax, income/franchise tax or both) for which to seek voluntary disclosure relief.

A taxpayer can also withdraw the application for voluntary disclosure with any state at any time prior to execution of the voluntary disclosure agreement.

Are Amnesty Applications Anonymous?

A taxpayer can apply to a state for voluntary disclosure anonymously and will not be required to disclose its identity to the state until the taxpayer registers with the state and the voluntary disclosure agreement is executed.

Are Voluntary Disclosure Agreements Anonymous?

Participating states have agreed not to disclose to other taxing jurisdictions the identity of any taxpayer entering into a voluntary disclosure agreement under this special time-limited initiative, except as required by law, pursuant to a court order, or in response to an inter-government exchange of information agreement in which the requesting entity provides the taxpayer’s name and taxpayer identification number.  Blanket requests from other jurisdictions for the identity of such taxpayers will not be honored by the Multistate Tax Commission.

Are CPAs Covered by the Attorney/Client Privilege?

Licensed attorneys are protected by the Attorney/Client Privilege when they obtain information in order to evaluate a legal matter, such as a target’s liability for taxes. CPAs are protected by the Attorney/Client Privilege only if the CPA acquired that information while assisting an attorney who is evaluating a legal matter for a client. Otherwise, a CPA’s information is not protected from disclosure to the taxing authorities.

Are Employees of a Potential Target Covered by the Attorney/Client Privilege?

Employees of targeted taxpayers are generally not subject to any privilege unless these employees are licensed attorneys employed as in-house counsel who are evaluating a legal matter, such as their employer’s liability for taxes.

The Possible Post-Amnesty Strategy of Participating States

The fact that about 23 states and the District of Columbia are involved in this tax amnesty indicates that there is a consensus among the states that at least some FBA members are liable for unreported sales/use taxes and income/franchise taxes arising from the sale of property and services over the Internet. It is possible that at least some of these states will attempt to obtain the identity of FBA members from Amazon and will contact these potential taxpayers either during or immediately after the amnesty ends on October 17, 2017.

Are the Participating States Giving “Fair Warning?”

The dates of the amnesty period – August 17, 2017 through October 17, 2017 – are problematic. The amnesty period begins about two weeks before Labor Day when many tax seasoned professionals are on vacation. It end on October 17, 2017, only one day after the last of the extended due dates for corporate, trust and personal income tax returns, when many experienced tax professionals complete a “mini tax season.” Thus, are participating states giving their targets “fair warning” before beginning the tax audit process?

The Need for Urgent Action

Some states may intend to ask Amazon for a listing of its FBA members and then contact these members.  As soon as a state contacts an FBA member, that taxpayer no longer qualifies for the amnesty. SeeWhich Taxpayers Qualify for the Amnesty?Therefore, targeted taxpayers will want to apply for amnesty as soon as possible and certainly before they are contacted by a state department of revenue.

Look Before You Leap

If taxes are owed, this is a good time to come into full compliance on a prospective basis where past liabilities generally are forgiven. If taxes are not owed, however, then coming forward will create unnecessary compliance obligations. Therefore, before making an amnesty application it is important to conduct a state-by-state nexus evaluation:

• To confirm that sales/use taxes are owed.

• To confirm that income/franchise taxes are owed.

Many taxpayers value the privilege of remaining anonymous until the Voluntary Disclosure Agreement is signed.  To protect this privilege, it is important that the taxpayer’s representative be subject to the attorney/client privilege. As noted earlier, only licensed attorneys are subject to the attorney/client privilege.

Call Us Today

We are qualified to assist Internet sellers and their professional advisors with legal issues arising under this tax amnesty. We are licensed tax attorneys subject to the attorney/client privilege. We have substantial experience with state voluntary disclosure programs. Our lawyers have published two articles (in January 2016 and February 2016) on different forms of nexus and the voluntary disclosure of state taxes with State Tax Notes, a national publication. Our lawyers have also participated recently on a national webinar on nexus and voluntary disclosure, which included a discussion of participation in the Multistate Tax Commission regular Voluntary Disclosure Program.