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SEC Cracks Down on Sales Taxes – Significant Penalties Result

Although the SEC has not historically been involved in above-the-line taxes, such as sales taxes, “the times they are a-changin’.”  The SEC has sanctioned and fined several companies for failure to properly collect, remit, and/or account for sales taxes. 

In one instance a company was fined $200,000 for failure to maintain proper internal controls and books and records relating to sales taxes.  The company was found to not have proper controls in place to properly tax and track the transactions in question over a period of several years.  As a result the company was found to be in violation of § 13(b)(2)(B) of the Exchange Act. 

In another instance, the SEC found that a company had improperly released a reserve related to sales taxes which resulted in a 12% overstatement of income.  Further, the company was found to be lacking in the tracking of its exemption certificates, and to not be registered as required in many jurisdictions. 

As illustrated by these examples, the penalties for improperly accounting for sales taxes can be more than paying back taxes and related interest.  Penalties from taxing authorities and other oversight organizations can be significant.  While sales tax audit defense services are often viewed as the first line of defense, there are several ways the public and private companies can become compliant in the areas of sales and use taxes and remediate historical exposures, including: 

  1. Policies and Procedures Review – Review the company’s current sales tax policies and procedures with an eye toward seeking opportunities for improvement.
  2. Voluntary Disclosure Agreements/Amnesties – Historical exposures can be remediated by entering into voluntary disclosure agreements and/or amnesty agreements which may limit the prior periods for which uncollected taxes must be paid, and which waive penalties and/or interest.
  3. Nexus Studies and Taxability Matrices – Determine where companies have filing responsibilities and the taxability of various revenue streams to help ensure compliance with applicable sales/use tax laws.
  4. Reverse Audits – Not all problems result in underpayments/exposure.  Many times when companies do not understand the intricacies of sales/use taxes the results include over payments.  Companies can identify overpayments and apply for refunds to ensure they are not paying more than their fair share of taxes. 

If you have any questions regarding the above content, or any state and local tax issues, please contact a member of the EisnerAmper State & Local Tax Group.

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