Marketplaces to be responsible for tax on third-party sales in Nevada, October 2019

Nevada has enacted legislation requiring marketplace facilitators to collect and remit tax for all sales made through the platform. It’s about the 33rd state to do so (including Washington, D.C.). Remote sellers with economic nexus in Nevada have had a sales tax collection obligation in the state since October 1, 2018.

Effective October 1, 2019, a marketplace facilitator is required to collect tax on behalf of sellers if, in the calendar year or in the immediately preceding calendar year, it:

• Had cumulative gross receipts exceeding $100,000 from retail sales made to customers in Nevada — on its own behalf or on behalf of a seller; or
• It made or facilitated 200 or more separate retail sales transactions — on its own behalf or on behalf of a seller.

Assembly Bill 445 stipulates that a marketplace and a seller can agree (in writing) to have the seller collect instead. The seller must be registered with the Nevada Department of Taxation to collect sales and use taxes in Nevada. Facilitators must provide the Department of Taxation with a report containing the name of each marketplace seller who agrees to take care of sales tax itself, along with any other information the department deems necessary.

If asked by the Department of Taxation, a marketplace must provide a report containing certain information about each seller with whom the marketplace facilitator has entered into such an agreement.

It’s worth noting that the measure doesn’t relieve marketplace sellers from registering with the state if they have nexus with Nevada. In addition to establishing through economic activity in the state (economic nexus), remote sellers can establish a sales tax collection obligation by having a physical presence in the state, such as storing inventory for sale in an in-state warehouse or fulfillment center.

AB 445 also authorizes the Nevada Department of Taxation to adopt regulations for referrers, which differ from marketplace providers or facilitators in that they receive a fee in exchange for listing or advertising products for sellers, but don’t collect money or other consideration from customers in the same way marketplace facilitators or providers do.

The department may impose a sales and use tax collection obligation on referrers that meet the economic nexus threshold (200 or more retail sales in Nevada or more than $100,000 in cumulative gross receipts in Nevada resulting from referrals made by the referrer). However, it may also allow referrers to opt out of that collection duty by complying with use tax notice and reporting requirements instead. These are described below.

Non-collecting referrers must post a conspicuous notice on each platform that includes the following information:

• Sales or use tax is due on certain purchases
• The marketplace seller from whom the person is purchasing on the platform may or may not collect and remit the applicable sales or use tax
• Nevada requires the purchaser to pay sales or use tax and file a sales or use tax return if the marketplace seller doesn’t collect sales tax at the point of sale
• Instructions for obtaining additional information

Furthermore, non-collecting referrers must provide a monthly notice to each marketplace seller to whom a potential customer was referred during the previous calendar year. The notice must include:

• A statement that Nevada imposes sales and use tax on retail sales in the state
• A statement that a marketplace facilitator or other retailer making sales in the state must collect and remit sales and use tax; and
• Instructions for obtaining additional information

The referrer must also provide the department with periodic electronic reports containing the following information:

• A list of marketplace sellers that received the notice described above from the referrer
• A list of marketplace sellers that collect and remit sales and use tax, and list or advertise products for sales on the referrer’s platform
• An affidavit signed under penalty of perjury from an officer of the referrer affirming that the referrer made reasonable efforts to comply with the applicable sales and use tax notice and reporting requirements

Referrers that are also marketplace facilitators, marketplace sellers, or retailers must comply with the other provisions of AB 445 pertaining to marketplace facilitators, marketplace sellers, and retailers.

Learn about sales tax solutions for marketplace sellers.