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B&O Tax Nexus in Washington

welcome to Washington State signThis blog post is the second in a two-part series. This post explains how Washington B&O tax, or “business and occupation tax,” works for multi-state businesses. Last week’s blog post explained how Washington sales tax works for multi-state businesses.

B&O Basics

Washington’s B&O tax recognizes three main categories of businesses, which it treats differently and subjects to different tax rates:

  • Retailers
  • Wholesalers
  • Service businesses

That last category is often referred to as “apportionable activities,” and in addition to service businesses, it also includes royalty income and a hodgepodge of other seemingly-random industries. [See RCW 82.04.460(4)(a) for more on apportionable activities.]

When Do I Have B&O Nexus in Washington?

For wholesalers and apportionable activities, Washington defines nexus for B&O tax purposes in RCW 82.04.067(1):

  1. A person engaging in business is deemed to have substantial nexus with this state if, in the current or immediately preceding calendar year, the person is:
    1. An individual and is a resident or domiciliary of this state;
    2. A business entity and is organized or commercially domiciled in this state; or
    3. A nonresident individual or a business entity that is organized or commercially domiciled outside this state, and the person had:
      1. More than fifty-three thousand dollars of property in this state;
      2. More than fifty-three thousand dollars of payroll in this state;
      3. More than two hundred sixty-seven thousand dollars of receipts from this state; or
      4. At least twenty-five percent of the person’s total property, total payroll, or total receipts in this state.

For all other types of business activities, mainly retail, a business has nexus if its physically present in the state, or if it meets the gross receipts part of the nexus test described above [RCW 82.04.067(6)].

And one final note: those specific dollar amounts listed in (1)(c) are adjusted every year for inflation. As of this writing, the current thresholds, for both apportionable sales and wholesale sales, are:

  • $57,000 of property
  • $57,000 of payroll
  • $285,000 of gross receipts

Finally, note that WAC 458-20-194(2) contains a more detailed explanation of the Washington Department of Revenue’s interpretation of nexus rules, including several examples.

What Counts as “Engaging Within the State”?

Per RCW 82.04.066:

“Engaging within this state” and “engaging within the state,” when used in connection with any apportionable activity as defined in RCW 82.04.460 or selling activity taxable under RCW 82.04.250(1), 82.04.257(1), or 82.04.270, means that a person generates gross income of the business from sources within this state, such as customers or intangible property located in this state, regardless of whether the person is physically present in this state.

What Counts as “Property in the State”?

The definition of “property” for the purpose of determining nexus is from RCW 82.04.067(2):

Property counting toward the thresholds in subsection (1)(c)(i) and (iv) of this section is the average value of the taxpayer’s property, including intangible property, owned or rented and used in this state during the current or immediately preceding calendar year.

In most cases, you determine the value of property you own by simply using the original price you bought it for [RCW 82.04.067(2)(b)(i)]. For property you rent, you determine the value by multiplying your annual rent by eight [RCW 82.04.067(2)(b)(ii)]. If your business makes loans, there are special rules for determining the value of those assets. And computer software and other digital goods get a special loophole in RCW 82.04.067(2)(e).

What Counts as “Payroll in the State”?

The definition of “payroll” for the purpose of determining nexus is from RCW 82.04.067(3):

Payroll counting toward the thresholds in subsection (1)(c)(ii) and (iv) of this section is the total amount paid by the taxpayer for compensation in this state during the current or immediately preceding calendar year plus nonemployee compensation paid to representative third parties in this state. Nonemployee compensation paid to representative third parties includes the gross amount paid to nonemployees who represent the taxpayer in interactions with the taxpayer’s clients and includes sales commissions.

That point the law makes about “representative third parties” exists to close a potential loophole for determining nexus. One trick that some businesses tried in the past was to call all of their workers in a state “independent contractors,” not “employees.” The idea was that without any employees in the state, the business didn’t have nexus in the state.

However, in Scripto, Inc. v. Carson (362 U.S. 207, 1960) the Supreme Court determined that this trick didn’t work. Scripto, Inc. was an Atlanta-based business that hired 10 salesmen as independent contractors to regularly solicit sales in Florida. In response to Scripto’s argument that it had no nexus in Florida because it had no employees, the Court had this to say:

True, the “salesmen” are not regular employees of appellant devoting full time to its service, but we conclude that such a fine distinction is without constitutional significance. The formal shift in the contractual tagging of the salesman as “independent” neither results in changing his local function of solicitation nor bears upon its effectiveness in securing a substantial flow of goods into Florida… To permit such formal “contractual shifts” to make a constitutional difference would open the gates to a stampede of tax avoidance.

What Counts as “Receipts from the State”?

The definition of “receipts from the state” for the purpose of determining nexus is from RCW 82.04.067(4). Generally speaking the rules for

  1. Those amounts included in the numerator of the receipts factor under RCW 82.04.462;
  2. For financial institutions, those amounts included in the numerator of the receipts factor under the rule adopted by the department as authorized in RCW 82.04.460(2); and
  3. For persons taxable under RCW 82.04.250(1), 82.04.257(1), or 82.04.270, the gross proceeds of sales taxable under those statutory provisions and sourced to this state in accordance with RCW 82.32.730.

What About Public Law 86-272?

So, here’s the awkward thing about P.L. 86-272. It only applies to income taxes. And the tax base for Washington’s B&O tax isn’t income, it’s gross receipts. So multistate businesses can’t use Pub. Law 86-272 to claim they don’t have nexus for B&O tax purposes.

How Does B&O Apportionment Work?

If your business doesn’t have B&O tax nexus in Washington, then you don’t need to worry about paying Washington B&O tax on any of your business’ revenues. But if your business does have nexus in Washington, your next step is to figure out how much of your business’ revenue is Washington’s “share” to tax. For apportionable activities, you calculate these “shares” using Washington’s apportionment formula.

What’s the Apportionment Formula?

Per RCW 82.04.462, the apportionment formula for determining what portion of gross receipts are subject to Washington B&O is:

WA Receipts = Apportionable Receipts × (Receipts Attributable to WA)/(Total Receipts – Receipts Not Taxable in Another State)

One significant thing to note about this formula is that if a business only has nexus in Washington State, and no other state, then 100% of the business’ gross receipts will be subject to Washington B&O, even if the business has out-of-state customers.

What Does it Mean for Apportionable Income to be Attributable to Washington?

Under Washington’s tax laws, apportionable income—which again, is mostly service income and royalty income—is attributed to states under a tiered system. Essentially you apply the first rule in the list if you can, and if applying that rule is impossible, you move on down the list until you get to a rule that’s decently workable.

What Does it Mean for Income to be “Taxable in Another State”?

Per RCW 82.04.460(4)(b):

“Taxable in another state” means that the taxpayer is subject to a business activities tax by another state on its income received from engaging in apportionable activities; or the taxpayer is not subject to a business activities tax by another state on its income received from engaging in apportionable activities, but any other state has jurisdiction to subject the taxpayer to a business activities tax on such income under the substantial nexus standards in RCW 82.04.067(1).

How Does B&O Allocation Work for Activities Other Than Service Businesses and Royalties?

For sales of tangible personal property, you calculate Washington’s “share” of your business’ gross receipts using the sourcing rules in RCW 82.32.730. For examples of the application of these rules, see WAC 458-20-193. You’ll notice that these tangible property sourcing rules for B&O are the same destination-based sourcing rules as apply for retail sales tax.

The post B&O Tax Nexus in Washington appeared first on Evergreen Small Business.

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