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Expanded “Physical Presence” Codification Bill Introduced in House

On, June 12, 2017, the No Regulation Without Representation Act of 2017 was introduced by Congressman Jim Sensenbrenner (R-WI) with House Judiciary Chairman Bob Goolatte (R-VA) as one of seven original co-sponsors. As described in detail below, the scope and applicability of the “physical presence” requirement in the 2017 bill is significantly broader than the first iteration of the bill that was introduced last year. Not only does the bill expand the physical presence rule to all taxes, it expands the rule to all regulations.

2016 Bill

In July 2016, Congressman Sensenbrenner introduced the No Regulation Without Representation Act of 2016 (H.R. 5893) in the US House of Representatives. The bill provided that states and localities could not: (1) obligate a person to collect a sales, use or similar tax; (2) obligate a person to report sales; (3) assess a tax on a person; or (4) treat the person as doing business in a state or locality for purposes of such tax unless the person has a physical presence in the jurisdiction during the calendar quarter that the obligation or assessment is imposed. “Similar tax” meant a tax that is imposed on the sale or use of a product or service.

Under the 2016 bill, persons would have a physical presence only if the person: (1) owns or leases real or tangible personal property (other than software) in the state; (2) has one or more employees, agents or independent contractors in the state specifically soliciting product or service orders from customers in the state or providing design, installation or repair services there; or (3) maintains an office in-state with three or more employees for any purpose. The bill provided that “physical presence” did not include the following: (1) click-through referral agreements with in-state persons who receive commissions for referring customers to the seller; (2) presence for less than 15 days in a taxable year; (3) product delivery provided by a common carrier; or (4) internet advertising services not exclusively directed towards, or exclusively soliciting in-state customers.

The bill did not define the term “seller,” but did provide that “seller” did not include a: (1) marketplace provider (specifically defined); (2) referrer (specifically defined); (3) carrier, in which the seller does not have an ownership interest, providing transportation or delivery of tangible personal property; or (4) credit card issuer, transaction billing processor or other financial intermediary. Under the 2016 bill, persons not considered “sellers” (e.g., marketplace providers) were protected as well because the bill provided that a state may not impose a collection or reporting obligation or assess tax on “any person other than a purchaser or seller having a physical presence in the State.”

2017 Bill

The scope of the 2017 bill is significantly broader than the bill introduced in 2016 and would require a person to have “physical presence” in a state before the state can “tax or regulate [the] person’s activity in interstate commerce.” (emphasis added) The new bill applies the “physical presence” requirement to sales and use tax, as well as net income and other business activities taxes, and also the states’ ability to “regulate” interstate commerce. “Regulate” means “to impose a standard or requirement on the production, manufacture or post-sale disposal of any product sold or offered for sale in interstate commerce as a condition of sale in a state when: (1) such production or manufacture occurs outside the state; (2) such requirement is in addition to the requirements applicable to such production or manufacture pursuant to federal law and the laws of the state and locality in which the production or manufacture occurs; (3) such imposition is not otherwise expressly permitted by federal law; and (4) such requirement is enforced by a state’s executive branch or its agents or contractors.”

The definition of “physical presence” in the 2017 bill is different from the definition in the 2016 bill. Under the 2017 bill, a person would have a “physical presence” in a state if during the calendar year the person: (1) maintained its commercial or legal domicile in the state; (2) owned or leased real or tangible personal property (other than software) in the state; (3) has one or more employees, agents or independent contractors in the state providing design, installation or repair services on behalf of a remote seller; (4) has one or more employees, exclusive agents or exclusive independent contracts in the state who engage in activities that substantially assist the person to establish or maintain a market in the state; or (5) regularly employs three or more employees in the state.

The 2016 bill did not include maintaining a commercial or legal domicile in the state in the definition of “physical presence.” Additionally, under the 2016 bill, a person who had three or more employees performing activities (other than solicitation of sales, design, installation or repair services) in a state was physically present in the state only if the person also maintained an office in the state. Under the 2017 bill, there is no requirement that the person also maintain an office in the state.  Additionally, the 2017 bill provides that a person has “physical presence” in a state if it has one or more employees, exclusive agents or exclusive independent contracts in the state who engage in activities that substantially assist the person to establish or maintain a market in the state. The 2016 bill did not require that the agents and independent contractors be “exclusive”—thus, the 2017 bill limits the scope of this provision. The 2017 bill also requires that the employees, agents or independent contractors “maintain a marketplace” for the seller in the state (rather than solicit the sale of product or service orders as in the 2016 bill).

In addition to the activities not considered “physical presence” under the 2016 bill, the 2017 bill also provides that “physical presence” does not include the following: (1) ownership by a person outside of the state of an interest in a LLC or similar entity organized or with a physical presence in the state; (2) the furnishing of information to people in the state or the gathering of information from people in the state, provided the information is used or disseminated from outside of the state; and (3) activities related to the person’s potential or actual purchase of goods or services in the state if the final decision to purchase is made out of the state. Additionally, the 2017 bill provides that product delivery by a carrier or other service provider (not just a common carrier as in the 2016 bill) will not be considered “physical presence.”

The 2017 bill has the same protections for non-sellers as the 2016 bill.  While the 2017 bill still excludes “marketplace providers” (defined substantially the same) from the definition of “seller” (protecting them from a tax or collection obligation as a non-seller), it adds a new carve out for sales through the marketplace of products owned by the marketplace provider. In this instance, the marketplace provider would be the “seller,” and a tax or collection obligation would be permitted if the marketplace provider has a “physical presence” in the jurisdiction.

As introduced, the 2017 bill would apply to calendar quarters beginning on or after January 1, 2018.

Practice Note

If passed, the 2017 bill would have an enormous impact not just on taxes, but on all regulation of business activities by states. Last year’s bill was an attempt to codify and define the Quill physical presence rule and preempt state nexus legislation. The 2017 bill does the same; it codifies the Quill physical presence rule which would not only legislatively enact and define Quill, but also preempt many of the state attempts to expand physical presence nexus, including click-through, marketplace nexus and economic nexus.

However, the 2017 bill goes even further. It would expand the physical presence rule to all other taxes, including business activity and net income taxes. This is similar to the rule that would have been established under the Business Activity Tax Simplification Act (BATSA) introduced as H.R. 2584 in the last congressional session.

But the 2017 bill goes even beyond BATSA, prohibiting any regulation by a state over a person or business unless that person or business has physical presence in the state. This expansion is likely related to a fight between states that has been progressing through the courts. California has a law that requires eggs sold in California to be laid by hens in cages that are of a specific size. Missouri and other states sued to invalidate California’s law, but lost in the 9th Circuit and certiorari was denied by the US Supreme Court on May 30, 2017. Thus, the 2017 bill is unlike anything seen before in the tax context—and the impact, whether enacted or not, remains to be seen.

© 2017 McDermott Will & Emery

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About this Author

Stephen P. Kranz, taxpayer advocacy lawyer, McDermott Will legal practice
Partner

Stephen P. Kranz is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  He engages in all forms of taxpayer advocacy, including audit defense and litigation, legislative monitoring, and the formation and leadership of taxpayer coalitions.  Steve is at the forefront of state and local tax issues, including developments arising in the world of cloud computing and digital goods and services.  He assists clients in understanding planning opportunities and compliance obligations for all states and all tax types. ...

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Mark Yopp Tax Law attorney McDermott Will Law Firm
Partner

Mark Yopp is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s New York office.  He focuses his practice on state and local tax matters. 

Mark has experience in state tax controversy, multistate planning and multistate legislative analysis.  He has assisted clients in analyzing various state tax and unclaimed property issues, including issues related to the internet and electronic commerce.  He has advised clients on the implications of state tax legislation.  Mark also has experience analyzing state tax issues in bankruptcies for both creditors and debtors.  Prior to joining the firm, Mark was an associate at a national law firm where he focused on state and local tax matters. 

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Kathleen Quinn, McDermott Will, State Tax Matters Lawyer, Corporate Development Attorney
Associate

Kathleen Quinn focuses her practice on state and local tax matters. She has represented corporations and individuals in New York State and New York City income tax controversies. She also has advised clients on the state and local consequences of corporate restructurings and other business transactions.

Previously, Kathleen worked at a Big Four accounting firm, where her practice focused exclusively on state and local tax.

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Eric Carstens, McDermott Will Emery, State Tax Controversy Lawyer, Taxpayer Advocacy Attorney
Associate

Eric D. Carstens is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. He focuses his practice on state and local tax matters.

Eric assists clients with state tax controversy, compliance and multistate planning across all states for a variety of tax types and unclaimed property. He engages in all forms of taxpayer advocacy, including litigation, legislative monitoring and audit defense. He works closely with several of the Firm’s taxpayer coalitions focused on specific state tax...

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