June 21, 2017
Re: Request for Ruling: Retail Sales and Use Tax
Dear *****:
This will reply to your letter in which you request a ruling as to whether ***** (the “Taxpayer”) has sufficient activity within Virginia to require registration for collection and remittance of the Virginia retail sales and use tax. I apologize for the delay in responding to your request.
FACTS
The Taxpayer is an online retailer located outside the state of Virginia. The Taxpayer maintains a resale inventory of its product in a warehouse located in Virginia (hereinafter “Fulfillment Center”). The Taxpayer maintains no offices, employees, business locations, or warehouses in Virginia. The Taxpayer is registered to collect the Virginia sales tax from Virginia customers with a beginning liability date of August 2015.
The Taxpayer requests a ruling as to whether it is required to collect the Virginia sales tax from Virginia customers. In the event the Department finds that the Taxpayer does not have nexus with Virginia, the Taxpayer requests that all sales taxes previously remitted to the Department be refunded to the Taxpayer, and the Taxpayer's dealer's certificate of registration be closed.
RULING
Virginia Code § 58.1-603 imposes the retail sales and use tax on every person “who engages in the business of selling at retail or distributing tangible personal property.” The tax is collected by all persons who are “dealers” as defined in Va. Code § 58.1-612. Pursuant to subsection B 3 of this statute, the term “dealer” includes any person who:
Sells at retail, or who offers for sale at retail, or who has in his possession for sale at retail, or for use, consumption, or distribution, or for storage to be used or consumed in this Commonwealth, tangible personal property.
A “sale at retail” is defined as “a sale to any persons for any purpose other than for resale in the form of tangible personal property or services.” A “sale” is defined as “any transfer of title of title or possession, or both, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property and any rendition of a taxable service for a consideration.” See Va. Code § 58.1-602.
Based on the information provided, the Taxpayer clearly qualifies as a dealer for purposes of the Virginia retail sales and use tax. What needs to be determined is whether the Taxpayer has sufficient activity within Virginia to require registration as a dealer for collection and remittance of the Virginia retail sales and use tax. You represent that the only presence the Taxpayer has in Virginia is the storage of resale inventory in a fulfillment center located in Virginia.
During its 2017 session, the Virginia General Assembly passed House Bill 2058 and Senate Bill 962 (2017 Acts of Assembly, Chapters 51 and 808) to amend Va. Code § 58.1612 C. Virginia Code § 58.1-612 C sets forth those activities that a dealer may be engaged in that establish nexus with Virginia and require the dealer to register for the collection of the Virginia retail sales and use tax. Subdivision 9 of § 58.1-612 C was amended to provide a dealer shall have sufficient activity to require registration if the dealer:
Owns tangible personal property that is for sale located in this Commonwealth, or that is rented or leased to a consumer in this Commonwealth, or offers tangible personal property, on approval, to consumers in the Commonwealth. [Emphasis added.]
The amendment is effective June 1, 2017.
Based on the nexus requirement set forth above in Va. Code § 58.1-612 C 9 and the fact the Taxpayer owns tangible personal property for sale located in a fulfillment center in the Commonwealth of Virginia, the Taxpayer has sufficient activity in Virginia to require it to register for the collection and remittance of the Virginia retail sales and use tax on all sales to Virginia customers. As an out-of-state dealer, the Taxpayer would be required to file a monthly Form ST-8, Out-of-State Dealer's Sales Tax Return, along with Form ST-8A, Schedule of Local Sales and Use Taxes, allocating the local tax to localities where the Taxpayer's products are delivered. For a more detailed explanation of the law change, see Virginia Tax Bulletin 17-3 (5/3/17).
With regard to your request for a refund of any sales taxes collected and remitted since the Taxpayer's beginning liability date for doing business in Virginia, I am unable to refund these taxes. The Taxpayer is statutorily required to register for the collection of the Virginia sales tax as provided above. Furthermore, the voluntary registration on the part of the Taxpayer legally bound the Taxpayer to collect and remit the sales tax on all taxable sales to Virginia customers.
I hope the above information responds to your inquiry. This response is based on the facts provided as summarized above. Any changes in the facts or the introduction of new facts may lead to a different result.
The Code of Virginia sections and Tax Bulletin cited are available on-line at www.tax.virginia.gov in the Laws, Rules and Decisions section of the Department's website.
If you have any additional questions about this ruling you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
Sincerely,
Craig M. Burns
Tax Commissioner
AR/679