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Next Steps for Merchants and Affiliates

I have received several emails from merchants and affiliates asking what should be a plan of action.  Before I give you the lists of suggested action you need to realize that Legislation already exists in many states requiring the sales tax be collected. Other states are passing new legislation or quietly rewriting definitions. I urged everyone months ago to read through their current legislation and to stay on top of proposed legislation.  Judging by the surprise expressed over the past few days I doubt many looked at the laws until now. Many states already define a nexus as including “independent contractors”, “solicitors” “representatives” and dozens of other words. The word nexus means substantial physical presence. Once there is a nexus, the tax is due.  Online taxes are inevitable. I do not want to discourage anyone, but I doubt that these laws can be stopped. Two main reasons being it is a sales and use tax so the tax is already due, and two, State governments need the revenue. It is easier to collect the use tax from merchants than it is to go after all the citizens.

Now on to the question, what do affiliates and merchants do next? Answer-  LEARN, PREPARE , ADJUST and PREPARE again. Learn what the situations is, prepare for it, adjust and then prepare for changes.

Affiliate Plan of Action

  • Every affiliate in every State needs to prepare. Identify those merchant relationships that are at risk. Just as I explained in my post  How California Affiliates Can Prepare  affiliate need to identify the merchants that do not collect tax online. These are your vulnerable relationships.  If a tax is collected online or items are not taxable it is a safe merchant. Please read that post on preparing carefully, just substitute your State name where ever the word California appears. Be sure the tax is collected ONLINE;  do not assume that because the store has a brick and mortar store in your state that the tax is collected online.
  • Read through your State’s nexus definition; know where your State stands in regards to what defines a nexus. If there is any doubt you will need to consult a sales tax attorney or a very knowledgeable accountant to clarify for you. Be sure the attorney specializes in sales tax. Be sure the accountant is fully informed on sales tax and laws, this is not a time to save a penny by asking the guy down the block who just does tax returns and simple bookkeeping. If several band together and chip in the cost should be a manageable fee.  If your State is currently safe, be sure to keep on top of the legislative hearings. Subscribe to a feed from State Assembly and Senate.
  • Do NOT do anything that will or may result in fraud or criminal charges. This includes using a false or misleading address. Tax evasion and avoidance is a serious crime.
  • If the law currently exists or is passed, contact every merchant. Discuss what their plans are.  Communicate the message that the tax is due, the customer owes it one way or the other. Isn’t it better to keep a customer, keep an affiliate and just collect and remit the taxes?
  • Maintain professional and business attitude. The bottom line is everyone will have to make their own business decision. It will best if you assume more of a proactive educated role than to go on the attack.  Work together with merchants and program managers. NY Affiliates were able to work out solutions in many cases because we used this approach.
  • Keep lines of communication open.

Merchant Plan of Action

  • Realize that affiliates are business people just like you are. Just as I urge affiliates to use a professional and businesslike approach,  use this same approach.
  • Respond to affiliates questions regarding your stance. If you are still examining the situation and do not have any concrete answers,  just let them know. They will appreciate your desire to make educated business decisions. If you ignore or do not respond the situation becomes filled with negative energy.
  • Consult a sales tax attorney in the State that has defined you as having a nexus; this will give you the best information
  • Seriously consider collecting the taxes.  Is it worth losing affiliates and potentially customers every time a State declares you have a nexus?  Software is available to simplify. Realize that many merchants will just start collecting and remitting the tax. If you sever relationships with affiliates from a particular State, not only will those affiliates start promoting your competitors, affiliates from other states will be sympathetic and also switch to competitors. Amazon decided to collect the tax and they have earned the respect and loyalty of many affiliates because of that stance.  Think long term. At first it will take some organization and more time to handle the extra paperwork but with software the process is a bit easier. But the long term result is very loyal affiliates who realize they are valued business associates.
  • Keep lines of communication open.

I think we all learned a bit from the NY Affiliate Tax situation, and hopefully we are better prepared to handle everything that will happen this year.

I am not a lawyer or an accountant but if you have questions or want suggestions on how to handle any of this, post your questions, I am more than happy to share our NY experience.

{ 4 comments… add one }

  • Jeannie March 7, 2009, 8:29 am

    Thank you giving us this information. I will read thru stuff for my state Ohio. I cant imagine how bad it would be for me to go thru losing alot of mercants. I need to plan something because my husband may be out of work soon. Thank you for helping!

  • BC March 10, 2009, 6:35 am

    No one has learned, heads buried in the sand. I had 2 merchants tell me they will figure things out if iut happens. Everyone else ignoires me. I am a super affiliate!
    What will it take?

  • Darci August 26, 2009, 12:59 pm

    I have a client that is in retail. They are looking to open a temporary store in NY for the holiday season only (Sept/Oct thru Dec/Jan). They also have internet sales in NY. Will they have nexus only during the months they have physical presence or will this create nexus for the internet sales, year round?


  • Melanie September 2, 2009, 5:20 pm

    Hi Darci, since I am not an attorney or accountant I am not qualified to answer that question. Your best bet is to ask your accountant or a sales and use tax attorney. If you need a referral to a NY sales and use tax attorney we reccomend HodgsonRuss Attorneys.

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