AMNESTY FOR FL ECONOMIC NEXUS

UPDATE - GOVERNOR SIGNS ECONOMIC NEXUS LEGISLATION.  MORE DETAILS AT END OF ARTICLE.

On April 12, 2021, Florida legislature passed economic nexus and marketplace provider statutes, which is expected to be signed by the Governor by Monday April 19. In the final bill, most remote sellers will be very glad to hear that there is an amnesty provision that is very generous. However, the amnesty in not all forgiving, and some people are likely to get surprised when they simply apply for the amnesty and end up with a large tax bill going back many years. The purpose of this article is to discuss Florida’s new economic nexus amnesty provision, including the traps for the unwary, and how to minimize your exposure to possible tax liabilities for the past. There are links at the end of this article describing the overall Florida economic nexus statute. The “must know list” for Florida economic nexus amnesty is as follows:

• The first thing to note about the amnesty provision is that you must register as a Florida retailer for sales tax BEFORE October 1, 2021 to qualify for the amnesty. The statute leaves no wiggle room for registering on or after October 1, 2021.
• I do not recommend registering BEFORE July 1, 2021, because the statue does not go into effect until that date. So, technically, the amnesty does not exist until the statute is effective.
• Registration to be a dealer MUST be done electronically (through the Florida Department of Revenue’s website).
• The amnesty is only for remote sales that occur BEFORE July 1, 2021. So, a remote seller that registers sometime in September 2021 will still be responsible for Florida sales tax on remote sales into Florida for July, August, and September 2021 (unless made through a marketplace provider).
• The amnesty also applies to remote sales facilitated through a marketplace provider before July 1, 2021, presuming you register before October 1, 2021.
• If you qualify, then the amnesty is for all remote sales by the company, even if the remote sales started 15 years ago. This will be a huge win for many remote sellers, potentially even Amazon FBA sellers.
• The amnesty does not apply to anyone who, as of July 1, 2021, is under audit or has been issued an assessment, notice, or demand for payment, or is under an administrative or judicial proceeding.
• Any pre-July 1, 2021 sales that are not considered “remote sales” would NOT qualify for amnesty. So a company that had nexus prior to July 1, 2021 under the old nexus standards might not qualify for amnesty, except potentially Amazon FBA sellers. This is going to be the nasty mine field for many companies.
• The following actives might give a company nexus under the old standards and cause serious complications for amnesty:
  • Sales people in Florida
  • Hiring subcontractors to do warranty work in Florida
  • Hiring subcontractors to do installation work in Florida
  • Remote employees in Florida
  • Company officers or directors owning property in Florida
  • Subsidiary or affiliated companies having nexus in Florida

LAND MINE – PRIOR ACTIVITIES CREATING NEXUS

If a company had nexus creating activities prior to the enactment of Florida’s economic nexus, then the amnesty provisions may not apply to some or all of that company’s sales. If there is any question whether your company had prior nexus creating activities, then I would highly recommend talking to someone very knowledgeable in Florida sales tax law. You want to a thorough review of your activities and know your potential exposure. It might worth the time to register through Florida’s voluntary disclosure program rather than simply trying to register online to minimize the exposure for past activity. If anything else, the voluntary disclosure will cut off the look back period to 3 years and wipe out the penalties. A taxpayer may also find significant forgiveness for past liabilities through the voluntary disclosure program very similar to the amnesty for non-marketplace provider sales.

The Double-Edged Loophole for Amazon FBA Sellers

A remote seller must look to their 2020 sales to determine whether they cross the $100,000 threshold for the new Florida economic nexus effective July 1, 2021. However, sales through a marketplace provider are not counted towards the threshold. One of the biggest loopholes I can see in the amnesty provisions is that Amazon FBA sellers had nexus under the old standards because the inventory in Florida gave the remote seller physical presence in Florida, but the statute provides amnesty for sales made through a marketplace provider. So, an Amazon FBA seller that would have had nexus in 2020 because of the inventory in the state, may claim amnesty between July 1 and September 30, 2021 forgiving all prior tax liabilities for all sales through a marketplace provider, like Amazon. However, the loophole is also a double edge sword. A remote seller than used Amazon FBA prior to July 1, 2021 who does not file for amnesty prior to October 1, 2021 very well could be liable for pre-July 1, 2021 sales tax on Amazon FBA sales as far back in time as the company had nexus under the old standards. Let me repeat this a different way, if your company has been an Amazon FBA seller in Florida, then you really want to register and qualify for Florida amnesty prior to October 1, 2021 or you leave yourself exposed to Florida coming back to claim you owe tax on all your pre-July 1, 2021 sales into Florida…. all of them, for however many years you have been using Amazon FBA in Florida.

Even if your company does not meet the $100,000 threshold for 2020, if your company is concerned about prior nexus activities, then it might be a good idea to register during the amnesty period. For example, a company that sold $50,000 in Florida each of the last 5 years through Amazon FBA would have approximately $35,000 of tax liability exposure, plus about $14,000 in interest and 25% penalties for those five years. If the company does not take advantage of the amnesty, the company would have that exposure as long as the company exists (the statute of limitations clock does not begin to tick if a company does not file returns). However, if the company registers and claims amnesty in a timely fashion, then the statute appears to wipe out this past liability even if the company technically does not meet the $100,000 threshold. This would be a big win for many smaller Amazon FBA retailers.

ADDITIONAL DETAILS FOR TAX PROFESSIONALS

For the tax professionals reading this article, below is the statutory language for the amnesty provisions:

A person subject to the requirements of this act to collect and remit the tax under chapter 212, Florida Statutes, on remote sales is relieved of liability for tax, penalty, and interest due on remote sales that occurred before July 1, 2021, provided that the person registers with the department before October 1, 2021. This subsection is also intended to provide relief to a marketplace seller for remote sales made before July 1, 2021, which were facilitated by a marketplace provider. For a marketplace provider with a physical presence in this state, this subsection is intended to provide relief only for sales facilitated by the marketplace provider on behalf of a marketplace seller. This subsection does not apply to a person who is under audit; has been issued a bill, notice, or demand for payment; or is under an administrative or judicial proceeding as of July 1, 2021.

Also relevant to a tax professional’s analysis of the amnesty provisions IS the following definition:

“Remote sale” means a retail sale of tangible personal property ordered by mail, telephone, the Internet, or other means of communication from a person who receives the order outside of this state and transports the property or causes the property to be transported from any jurisdiction, including this state, to a location in this state. For purposes of this paragraph, tangible personal property delivered to a location within this state is presumed to be used, consumed, distributed, or stored to be used or consumed in this state.

About the author: James Sutton is a Florida licensed CPA and attorney as well as a partner in Moffa, Sutton, & Donnini, PA. Mr. Sutton is charge of the Tampa office of the firm and practices almost exclusively in the area of Florida Sales & Use Tax Controversy. Mr. Sutton handles audits, protest, litigation, criminal cases, revocations, collections, and consulting engagements all in the area of sales tax. Mr. Sutton is an active member in the FICPA, AICPA, AAA-CPA, and FIADA. Mr. Sutton is also the State and Local Tax Chairman for the AAA-CPA and president of the Florida AA-CPA. Most notable to this article, Mr. Sutton was the lead author on an amicus brief filed in the US Supreme Court on behalf of the AAA-CPA in the SD v Wayfair case and attended oral arguments for the case. If you are interested in learning more about Florida sales tax from Mr. Sutton, you can find his speaking engagements around the state HERE. Otherwise, you can learn more about Mr. Sutton in his firm bio HERE.

About the firm: At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is sales and use taxes, with a very heavy emphasis on Florida. We have defended Florida businesses against the Florida Department of Revenue since 1991 and have over 100 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.

ADDITIONAL RESOURCES

FL GOVERNOR SIGNS ECONOMIC NEXUS LEGISLATION, published April 20, 2021, by James Sutton, CPA, Esq.

2021 FLORIDA ECONOMIC NEXUS PASSED, published April 9, 2021, by James Sutton, CPA, Esq.

FLORIDA SALES TAX – VOLUNTARY DISCLOSURE PROGRAM, published April 9, 2018, by Jeanette Moffa, Esq.

SHIPPING: AN OVERLOOKED FLORIDA SALES TAX EXEMPTION, published September 12, 2019, by Jeanette Moffa, Esq