Interstate Sales Tax, Marketplace Fairness, Remote Transactions Parity
What is this all about and why should I care (and even take action)?
Currently, state and local governments are not able to require remote (out of state) businesses to collect and remit their sales taxes. In-state businesses are required to collect sales tax on retail sales. As a result, there is a lack of parity between local (in-state) businesses and remote (out-of-state) businesses. This equates to as much as a 10% difference in the ultimate cost to the consumer in some parts of Washington State. It also means that state and local governments are not receiving a large and growing share of the sales taxes they are entitled to. Why is that and how can we resolve it?
In 1967 the U.S. Supreme Court case National Bellas Hess v. Illinois Department of Revenue essentially set the stage for the current debate on taxing remote Internet sales – 50 years ago! National Bellas Hess addressed whether a state could require a mail order business with no physical presence in the state to collect sales taxes on sales within the state. At that time, the Court held that the state could not impose such a requirement on the business unless it had a “physical presence” within the state.
Fast forward several decades to 1992 when the Court revisited the issue in Quill v. North Dakota. In Quill, the Court reaffirmed its 1967 decision but acknowledged that the underlying issue of the burdens that taxes impose on interstate commerce is one that Congress has the power to resolve.
While these cases were about remote mail order sales, the exponential growth of the Internet as a retail marketplace has fundamentally changed commerce and illustrated the need to modernize these types of tax laws. In recent years several state legislatures have made attempts to modernize their sales and use tax laws and others are considering remote sales tax legislation.
In the past, states addressed sales and use tax issues independently. This created a patchwork quilt of sales and use tax laws across the country complicating compliance for multi-state business (e.g. Walmart, Macys) as well as e-commerce companies (e.g. Amazon, Ebay). This inconsistency in state laws and regulations is the “undue-burden” objected to by the Supreme Court in the 1967 case. In 1999 both the governors association (National Governors Association) and the state legislatures (National Conference of State Legislatures) initiated an effort to “streamline” and simplify state sales and use tax.
The effort was dubbed “Streamlined Sales Tax” (SST) resulting in a “Streamlined Sales and Use Tax Agreement” among participating states. (See www.streamlinedsalestax.org for more information about the SSUTA). Over the years the SST has developed a simplified and standardized approach to sales and use tax administration with the intent to substantially reduce the burden on interstate retailers. Some examples of the new standards include: state level administration, a consistent rates and boundaries approach, consistent definitions of products subject to tax, etc. Some examples of simplification include: one point registration and remittance for multiple states, limitations on audits, a taxability matrix for goods and services by state, etc.
To date, 23 states have fully adopted the SSUTA (meaning their laws and regulations are consistent with it) and 1 state (Tennessee) will revert to the SSUTA upon federal authority to collect taxes on remote sales. This sets the stage for a reconsideration of the undue burden issue first addressed in Bellas Hess. Congress has considered the issue in a few forms at different times over the past few years. The Senate passed the Marketplace Fairness Act in 2013 by a wide margin, but the matter was held up in the House Judiciary Committee. Since then a very similar “Remote Transactions Parity Act” was introduced in the House – but it also has been bottled up in the Judiciary Committee. Committee Chairman Goodlatte has drafted his version of a solution as well, however it has several legal and practical flaws and is not seen as viable by many business interests nor state and local government.
Meanwhile several states have initiated fresh efforts to enable the courts to revisit their guidance, now 50 years old. Most notably South Dakota (a member of SST) has adopted a law that is specifically tailored to enable the Supreme Court to have the original issues on Bellas Hess presented anew in the light of e-commerce and the simplifications that have occurred. This follows on Justice Kennedy’s invitation for just such an opportunity.
GFOA is asking for your support in urging Congress to bring a bill substantially similar to the Marketplace Fairness Act, like that passed in the Senate, to a floor vote in Congress. For more information about this issue see:
- GFOA – Marketplace Fairness Act & The Remote Transactions Parity Act Resource Center
- NACO – Allowing the Collection of Existing Sales Taxes
- NLC – Take Action on Marketplace Fairness
- Washington DOR summary – Destination-based sales tax and streamlined sales tax
- WA DOR – WA DOR – estimates of local revenue losses (3.10.07 Article)
- WA DOR – WA DOR – estimates of local revenue losses worksheet (3.10.07 Article)
For more information contact Mike Bailey, City of Redmond
Added: March 10, 2017
****************************GASB INVITATION TO COMMENT****************************
GASB Issues Invitation to Comment in Project Designed to Improve Financial Reporting Model
The GASB has issued an Invitation to Comment (ITC) on potential improvements to the governmental funds portion of the financial reporting model.
The ITC, Financial Reporting Model Improvements—Governmental Funds, is intended to obtain feedback from stakeholders at an early stage of the Board’s financial reporting model reexamination project. Interested parties are asked to review and provide input on the ITC by March 31, 2017.
If you are a financial statement preparer, reviewer, auditor, or user, PLEASE take some time to read the ITC and provide your feedback to GASB. This is your chance to be heard.
Added: February 2, 2017
***UPDATED Wednesday, August 31, 2016****
From: “Gordon, Joanne (DOR)” <JoanneG@DOR.WA.GOV>
Subject: Department of Revenue – Legislative Proposal – Information
Date: August 30, 2016 at 12:34:20 PM PDT
Thank you for providing feedback to the Department of Revenue about its potential legislative proposal for the 2017 Legislative Session to require public bodies that enter into public improvement contracts to pay sales tax directly to the Department instead of to the prime contractor.
The Department’s intent in considering the proposal was to:
- Reduce the burden on small and medium contractors;
- Simplify the process; and
- Reduce the Department’s administrative costs.
After careful consideration of the comments you and others provided, the Department does not plan to proceed with the proposal in the 2017 Legislative Session.
Again, thank you for taking the time to review the proposal and provide feedback.
Legislative Coordinator, Washington Department of Revenue
Original News Article (added August 23, 2016):
Department of Revenues Proposed Legislative Change to AN ACT relating to requiring public entities to pay retail sales tax directly to the department of revenue on public improvement contracts
The Department of Revenue (Department) is considering request legislation for the upcoming 2017 Legislative Session that would require public bodies that enter into public improvement contracts to pay sales tax directly to the Department instead of to the prime contractor. The working title of the bill draft is AN ACT relating to requiring public entities to pay retail sales tax directly to the department of revenue on public improvement contracts as defined in section 1 of this act.
The Department is requesting public bodies to please help them by reviewing the bill draft and providing feedback by Friday, August 26, 2016. The Department apologizes for the limited review period. If the Department does not receive a response by August 26th, they will assume that you have no concerns and will indicate such when the Department submits their proposed agency request legislation to the Office of Financial Management.
For a Copy of the DRAFT ACT CLICK HERE
Please direct your comments and questions to:
JoAnne Gordon, Legislative Coordinator
Department of Revenue
Legislation and Policy Division
Revised: August 31, 2016
WFOA Board Votes in Opposition of the Proposed Budget Cuts to the Performance Audit Fund, affecting the State Auditor’s Office Local Government Performance Center
In January 2016 the board voiced their support for the State Auditor’s Office Local Government Performance Center (LGPC) and voted to oppose the proposed budget reductions to the Performance Audit Fund. The board issued a letter to the Washington State Legislature stating our opposition. The LGPC has provided WFOA members a wide range of support from training to technical assistance. The work LGPC has performed has significantly improved government services and reduced government costs.
The letter and LGPC highlights were delivered to members of the Washington State Legislature on February 10, 2016.
To view the letter, click: WFOA Letter Opposing Budget Reductions to the Performance Audit Fund
To view the SAO LGPC highlights, click: SAO LGPC Highlights
Added February 12, 2016
Per GASB News Release – The Governmental Accounting Standards Board (GASB) added to its technical agenda a project to reexamine the financial reporting model for state and local government financial statements.
The project’s objective is to make improvements to the existing financial reporting model, which was established in 1999 through Statement No. 34, Basic Financial Statements—and Management’s Discussion and Analysis—for State and Local Governments, and subsequent related pronouncements. Among other benefits, any improvements would be meant to enhance the effectiveness of the model in providing information essential for decision-making and assessing a government’s accountability.
The project will consider improvements to major features of the financial reporting model, including:
- MD&A—Explore options for enhancing the financial statement analysis section of MD&A and clarify guidance for presenting currently known facts, decisions, or conditions expected to have a significant effect on financial position or results of operations.
- Government-Wide Financial Statements—Explore alternatives for the format of the statement of activities and assess whether the value of the information provided by a government-wide statement of cash flows would outweigh the costs of providing that information.
- Major Funds—Explore options for providing additional information about debt service funds.
- Governmental Fund Financial Statements—Explore a conceptually consistent measurement focus and basis of accounting and develop a related presentation format for governmental fund financial statements.
- Proprietary Fund Financial Statements—Explore options for enhancing the consistency and usefulness of presenting operating and nonoperating revenues and expenses.
- Budgetary Information—Explore options for enhancing the consistency of the presentation method and value of budgetary information.
The full text of GASB News Release is here.
Added September 2, 2015
Key Legislative Changes that May affect Your Budget
Excerpt from MRSC newsletter – The gas tax, TBD reform, marijuana excise taxes, and other legislative changes that are likely to impact 2016 budgets for local governments. More from MRSC Insight.
Also, MRSC has published their 2016 Budget Suggestions document.
Added August 17, 2015
GASB Requires Governments to Disclose Information on Tax Abatements
Per GASB Report- The Governmental Accounting Standards Board (GASB) issued final guidance on August 14, 2015 that requires state and local governments for the first time to disclose information about tax abatement agreements.
Governments often agree to abate or reduce the taxes of individuals and corporate taxpayers to promote economic development, job growth, redevelopment of blighted or underdeveloped areas, and other actions that are beneficial to the government or its citizens. The disclosure requirements in GASB Statement No. 77, Tax Abatement Disclosures, are designed to provide financial statement users with essential information about these agreements and the impact that they have on a government’s finances.
The full text of Statement 77 is available on the GASB website, www.gasb.org.
Added August 14, 2015
Excerpt from MRSC newsletter – MRSC is excited to launch a new online research tool, Find Your Contracting Requirements, which allows local government officials to quickly pinpoint their statutory requirements for public works, purchasing, and service contracts. More from MRSC Insight.
Added July 30, 2015
The Governmental Accounting Standards Board (GASB) Has issued three exposure drafts for public comment. Comments related to Accounting and Financial Reporting for Certain External Investment Pools are due by August 31, 2015. This would replace the existing concept of the “2a7-like” pool. It would require note disclosures for the pools and governments that participate in the pools. Comments related to Accounting and Financial Reporting for Irrevocable Split-Interest Agreements are due by September 18, 2015. These arrangements are when a donor provides resources that are to be used by two or more beneficiaries. This would require additional reporting of assets and liabilities of these arrangements. Comments related to Blending Requirements for Certain Component Units are due by October 2, 2015. This statement would establish additional blending requirements. The full text of these exposure drafts, and how to comment, can be found on GASB’s website.
Added July 14, 2015
Excerpts from GFOA Newsletter – Last week Congressman Jason Chaffetz (R-UT-3) introduced legislation (HR 2775) that would enable state and local governments to collect taxes from retailers on remote sales. This legislation is essential in giving states and localities the access to collect more than $23 billion in unpaid sales and use taxes each year. Read more from GFOA’s News Release.
On August 12 at 10 a.m., GFOA’s (and WFOA’s) Mike Bailey, finance director for the City of Redmond, Washington, and Dustin McDonald, director of GFOA’s Federal Liaison Center, will lead a joint webinar with the American Society for Public Administration (ASPA) on federal efforts to require online retailers to collect and remit sales taxes to state and local governments. The webinar is free for GFOA and ASPA members and $75 for non-members. Register for this webinar. Read more from GFOA’s News Release.
Added July 2, 2015
The Governmental Accounting Standards Board (GASB) adopted GASB Statement 76, The Hierarchy of Generally Accepted Accounting Principles for State and Local Governments. This statement reduces the GAAP hierarchy to two categories of authoritative GAAP from the four categories under GASB Statement No. 55. The first category of authoritative GAAP consists of GASB Statements of Governmental Accounting Standards. The second category comprises GASB Technical Bulletins and Implementation Guides, as well as guidance from the American Institute of Certified Public Accountants that is cleared by the GASB. For more information, and the full text of Statements 76 go to the full GASB news release.
Added July 1, 2015
Excerpt from MRSC newsletter – Each legislative session, there are changes – some substantial, some not – to statutes affecting contracting for public works, services, materials, supplies, etc., that affect all or some local government agencies. More from MRSC Insight.
Added June 18, 2015
GFOA Adopts Policy Statement on Retirement Policy Excerpt from GFOA Newsletter – Solidifying its position in the national conversation on adequate retirement savings, GFOA unanimously ratified a policy statement on retirement security at its annual conference in Philadelphia. Recognizing that retirement income is essential in ensuring that employees retire from the workforce with financial security, and that these retirees contribute to the economic well-being of their communities, the statement suggests several steps for policymakers to consider acting on.
Added June 11, 2015
GASB Issues Statements 73, 74, and 75 on Reporting Health Insurance and OPEB GASB News Release – The Governmental Accounting Standards Board (GASB) today voted unanimously to approve two Statements that will significantly improve the accounting and financial reporting by state and local governments for postemployment benefits other than pensions (OPEB), primarily retiree health insurance. The GASB also approved a third Statement establishing accounting and financial reporting requirements for pensions and pension plans that were outside the scope of the pension standards the GASB released in 2012. For more information, and the full text of Statements 73, 74, and 75 go to the full GASB news release.
Added June 4, 2015
After many years of concern, watching, and waiting, GASB finally dropped its project focusing on financialprojections for economic conditions. This proposal received much backlash from the preparer side of the table as future projections are more difficult for accountants to report than historical balances and transactions. This project has been “on hold” for several years, and the board finally decided to remove it from its agenda. At the same time, they have added two new items to their pre-agenda research: going concern and debt. It sounds like there is still a possibility of the economic and financial projections surfacing in the going concern research. According to the GASB Chair, “The input and feedback we received from stakeholders on the Preliminary Views on economic condition reporting was highly valuable and will likely serve to inform our work in the future—including the research the Board has called for regarding going concern disclosures.”
Added April 27, 2015
Notable 2015 State Legislative Bills With the large number of bills that are proposed it is easy to miss something important. If you come across any bills that would affect you as a government finance officer, please send an email to Brad Posenjak so we can share them here with other WFOA members. Here is what we have received from our members so far. Keep them coming! EHB 2084 – Substitute bill preventing special purpose districts from receiving their property or sales tax revenue if they have not filed their annual reports timely. Requires the state auditor to notify the state and county treasurers of special purpose districts that have not timely filed the required annual financial report for the current year. Prohibits the state treasurer from distributing local sales and use taxes imposed by the special purpose district to the district until the state treasurer is notified that the district is compliant. Prohibits county treasurers from distributing regular property taxes imposed by the special purpose district, or other charges the county collects on behalf of the district, to the district until the county treasurer is notified that the district is compliant. This bill passed the house on March 10 by a vote of 83-15. It moved out of the Senate Committee on April 1st with an amendment that makes this only applicable to governments with budgets over $1 million. Now it awaits a vote in the Senate.
Updated April 6, 2015
GASB Issues Statement 72 on Fair Value Measurement GASB News Release – The Governmental Accounting Standards Board (GASB) has issued final guidance on accounting and financial reporting issues related to fair value measurements, which primarily applies to investments made by state and local governments. GASB Statement No. 72, Fair Value Measurement and Application, defines fair value and describes how fair value should be measured, what assets and liabilities should be measured at fair value, and what information about fair value should be disclosed in the notes to the financial statements. For more information, and the full text of Statement 72, go to the full GASB 72 news release.
Added March 3, 2015
2015 State Legislative Session Resources
As the 2015 Washington State Legislative session is under way, there are several resources that you can use to keep up-to-date on important bills that may affect government finance officers. The Association of Washington Cities has a couple great resources. The AWC Bill Tracker lists relevant bills, their priority to AWC, and the current bill status. Digging deeper, you can go to AWC’s Legislative Bulletin page to see more in-depth commentary of what the legislature is doing what the effects of the bills could be. The Washington State Association of Counties (WSAC) has been publishing a weekly Legislative Bulletin that they post on the public WSAC Facebook page and on a Legislative Bulletin Archive page. This bulletin provides links to individual bills by topic along with commentary on the most pressing bills that WSAC is tracking.
Updated February 4, 2015
DRS Updates GASB 67 & 68 Website The WA State Department of Retirement Systems (DRS) recently updated its GASB 67 & 68 resource page. FAQ 12 says that DRS will provide information as suggested by an AICPA white paper. Hopefully between these schedules and guidance from the State Auditor, the technical details of reporting PERS pension liabilities won’t be a nightmare.
Added January 9, 2015
The 2015 Washington State Legislative session will begin on January 12. With the large number of bills that are proposed it is easy to miss something important. If you come across any bills that would affect you as a government finance officer, please send an email to Brad Posenjak so we can share them here with other WFOA members.
Added January 2, 2015
Marketplace Fairness Act Republished From GFOA Newsletter – Despite the best efforts of the state and local community, House Speaker John Boehner (R-OH) was unwilling to bring the Marketplace and Internet Tax Fairness Act to the floor for a vote by the full House of Representatives in the final days of the congressional session. The measure would have enabled state and local governments to compel online retailers to collect and remit taxes from remote sales, and extended the current moratorium on the taxation of Internet access for ten years. The current tax structure for online sales creates vast disparities between brick-and-mortar businesses and online retailers, and costs state and local governments an estimated $23 billion per year in taxes owed on remote sales. All 45 states that impose a sales tax already require consumers to pay a tax on online purchases. However, there is no federal law enabling states to compel online stores to require consumers to pay this tax. In the absence of such a law, these taxes are not being paid, and local businesses are being put at a 5 to 10% competitive disadvantage to remote sellers. House Speaker Boehner and House Judiciary Chair Bob Goodlatte (R-VA) have committed to considering issues related to marketplace fairness in the next Congress. Congress did, however, pass a one-year extension of the Internet Tax Freedom Act, until October 15, 2015, which will continue to limit the ability of states and localities to tax Internet access. The enactment of the Marketplace Fairness Act legislation, as well as an end to the moratorium on the ability of states and localities to tax Internet access, will remain priority issues for GFOA in 2015.
Added December 18, 2014
GASB Issues Preliminary Views on Leases and Fiduciary Responsibilities
The GASB recently announced the issuance of Preliminary Views documents on lease accounting and on reporting governments’ fiduciary responsibilities. The Preliminary Views, Leases, includes proposals to improve the accounting and financial reporting for leases for state and local governments from both a lessee and lessor perspective. The Preliminary Views, Financial Reporting for Fiduciary Responsibilities, presents the Board’s current thinking on fundamental issues associated with the reporting of activities in which a government has a fiduciary responsibility. The purpose of these documents is to obtain comments from stakeholders on the Board’s views before developing more detailed proposals for changes to existing accounting and financial reporting standards.
Added November 21, 2014
GASB Seeks Participants for Field Test of Proposed New Lease Standards The Governmental Accounting Standards Board is seeking participants for a field test of certain new standards that the Board is about to propose for leases. Participating entities will go through the exercise of “implementing” the GASB’s proposed new lease guidance and then provide feedback about their experience. Governments interested in participating should contact GASB Practice Fellow Deborah Beams either by e-mail firstname.lastname@example.org or by telephone at 203-956-5210.
Added November 14, 2014
DRS Website Discusses GASB 67 & 68 The WA State Department of Retirement Systems (DRS) has a resource section on their website addressing the implementation of GASB 67 & 68. They include a “Frequently Asked Questions” section where you are encouraged to submit any question you may have for their consideration. Looking at the last question on the FAQ, it sounds like each entity will be responsible to take the collective liability in the DRS CAFR and apply a percentage given by DRS. See for yourself at the DRS GASB Website.
Added November 12, 2014
The Association of Washington Cities has posted it’s 2015 Legislative Agenda which places its priorities on shared revenue, transportation, revenue authorities, infrastructure, marijuana.
Added November 12, 2014
New GASB Project for Asset Retirement Obligations: Sewage Treatment Plants Beware
The Governmental Accounting Standards Board (GASB) recently added Asset Retirement Obligations (ARO) to their project agenda. If you recall GASB Statement No. 18, Accounting for Municipal Solid Waste Landfill Closure and Postclosure Care Costs, this should sound familiar. The current project is looking at any capital asset that may require additional costs to retire. Examples that GASB provides are nuclear power plants, coal-fired power plants, and sewage treatment plants. While I don’t expect many WFOA members operate nuclear or coal power plants, I believe several local governments operate sewage treatment plants.
According to the GASB website, “One major topic expected to be addressed will be what constitutes an ARO and what the term retirement should encompass in the guidance. The project will determine a general approach to recognition and measurement of an ARO, considering existing practice among governments and feedback received from preparers and auditors regarding their concerns about complexity, comparability, and the balance of costs and benefits. The project also will consider the following issues: Should costs, if any, associated with AROs should be capitalized? If so, how should these costs be recognized and measured? What information about AROs should be disclosed in the notes to the financial statements?”
This project is at the early stages of development, so if you have an opinion or concern about this becoming a standard, now is the time to let GASB know. Contact information for GASB project staff is located on the ARO project page.
Added November 7, 2014
Tax Abatement Disclosures Exposure Draft Released The GASB issued an Exposure Draft of a proposed statement, Tax Abatement Disclosures, which would require state and local governments to disclose information about property and other tax abatement agreements. The GASB notes that many governments offer tax incentives to promote economic development, but “it is difficult to discern the magnitude and nature of those effects from financial statements at present.” Stakeholders are encouraged to review the proposals and comment by January 30, 2015.
Added November 6, 2014
New GASB Projects GASB recently added two new projects to their current agenda: (1) Asset Retirement Obligations considers applying landfill closure rules (Statement 18) to other types of assets such as sewage treatment facilities and nuclear power plants. (2) Blending Requirements for Certain Business-Type Activities addresses issues related to inconsistent presentation of component units in governments that only report business-type activities.
Added September 12, 2014
September WFOA Newsletter Check out this issue of the WFOA newsletter for articles relating to:
- LEOFF 1 and ACA Cadillac Tax
SAO Progress Report of Local Government Financial Health
GASB OPEB Exposure Drafts
- Federal Sales Tax Legislation
- Supreme Court Issues Rulings in Gain-Sharing, UCOLA Lawsuits
Added September 12, 2014
New Federal Banking Rules Could Increase Borrowing Costs for State and Local Governments Federal regulators are set to approve new liquidity standards on banks that could increase borrowing costs for state and local governments. GFOA provides resources to address these concerns
Added August 27, 2014
GFOA Issues an Alert on the SEC MCDC Initiative The SEC MCDC Initiative provides issuers and underwriters the opportunity to self-report instances of material misstatements in bond offering documents. The GFOA is urging it’s members to exercise caution before they participate.
MRSC 2015 Budget Suggestions The Municipal Research and Services Center’s popular annual budget resource is now available!
GASB Projects: Exposure Drafts Coming in 2014 GASB is working on several projects that are expected to result in exposure drafts during 2014. Follow this link and read page 5 of the June WFOA newsletter for more information.
MRSC Develops Model Policy for New Unpaid Holiday Requirement MRSC introduced a model policy that addresses the new unpaid holiday requirements recently passed by the Washington Legislature, which go into effect on June 12, 2014.
GASB Issues Exposure Draft on Fair Value Measurement Proposed GASB standard that defines clarifies fair value measurement for assets and liabilities. Will require new note disclosures on what methods an entity uses to measure fair value. This exposure draft is open for comments until August 15, 2014.