June 15, 2015
Defensively, your tax team wants to avoid pitfalls associated with nexus. On the other hand, understanding nexus can open the door for opportunities such as Voluntary Disclosure Agreements or amnesty.
The next thing I would do once I have that high level of quantification is go through and challenge all my assumptions. Things like sourcing - am I sourcing the revenue properly? What about the apportionment? A lot of those underlying assumptions very often can help you negate some of the exposure and some of the liability. Maybe the states you have nexus in that you need to file for the last several years have a lower tax rate than the states you are currently filing in and you may be able to go back and amend current year returns. So you need to figure out the impact it will have on your current filings as well as challenge all those assumptions and see if those liabilities really hold true and see what the true level of exposure is.
The next thing you can do once you've quantified the amount is actually go and enter into some sort of agreement with the state. Virtually every state has some sort of voluntary disclosure program and very often states come up from time to time with amnesty programs which both let you come forward on a voluntary basis and clear up past liabilities that you have with the state.
What are my agreement options?
A VDA is a voluntary disclosure program where you get to come forward to the state and generally they limit the look-back period anywhere from three to five years so let's say you find out you had Nexus going back ten years well you could limit that look-back period for three to five years and they will generally waive all penalties and you're just subject to the interest and the tax due for that time period. Now for sales tax if you've collected tax and failed to remit it you still need to pay all of the back taxes, they don't let you keep anything that you collected wrongfully and what they do is you can come forward to the state, some states let you begin the process under an anonymous basis others you have to disclose up front, and you limit the look back period to get the penalties waived and then you can enter into the agreement the state gets you on their tax rolls so that you're filing going forward. An amnesty agreement on the other hand has gotten a lot more publicity I'll say in the last several years with more and more states coming out with limited terms they're usually only run for three months and states will often waive interest and penalties but it may have an unlimited look-back period. Also some states have come out and said well we're only waiving half the penalties or maybe half the interests so you really need to look at each state's program and figure out what makes the most sense. Usually when an amnesty program has been enacted the voluntary disclosure program is suspended during that same time period so you really need to figure out which one fits the best for you.
If I have nexus exposure, what are my next steps?
Well the first thing we'll do is determine whether they do have nexus because very often some of them come forward and think they have nexus in various states and they don't, or they may have it in totally different states. We’ll also make sure they're looking at the right taxes: often we've seen people come and they may be looking only at one tax, let's say sales tax, and they don't realize well you need to do all your taxes, you need to do income tax as well or franchise tax, and so we make sure all the taxes are included and take a more holistic approach. We’ll also help them consult on things like are you sourcing your revenue correctly or is what you're selling if the sales tax issue is what you're selling actually subject to tax there because very often a lot of these issues get very complicated and sometimes clients get confused on the issues and what they thought was a huge issue may be less of an issue and maybe what they thought was a minor issue ends up being a big issue.