Updated 8.17.2015: Technical Bulletin 78 has been revised. It now makes clear that delivery of goods in a seller's vehicle creates nexus.
Nexus is a “definite link, some minimum connection, between the State and the entity it seeks to tax.” A business with a physical presence in a state almost always has sales and use tax nexus; yet physical presence is not the only way to establish an obligation to collect sales and use tax.
Regular old nexus
Working within the framework of the U.S. Constitution Commerce Clause (as interpreted by the U.S. Supreme Court), states define the connection that creates nexus differently. As explained by the New Jersey Division of Taxation (quoted in full below), nexus-triggering activities in the Garden State include, but are not limited to:
- Selling, leasing, or renting tangible personal property or specified digital products or services;
- Maintaining an office, distribution house, showroom, warehouse, service enterprise (like a restaurant, entertainment center, business center, etc.), or other place of business;
- Having employees, independent contractors, agents, or other representatives (including salespersons, consultants, customer representatives, service or repair technicians, instructors, delivery persons, and independent representatives or solicitors acting as agents of the business) working in the State;
- Selling, storing, delivering, or transporting energy to users or customers;
- Collecting initiation fees, membership fees, or dues for access to or use of health, fitness, athletic, sporting or shopping club property or facilities;
- Parking, storing, or garaging motor vehicles.
Click-through nexus
In response to the growing number of untaxed Internet sales, the definition of nexus in New Jersey was expanded to include click-through nexus. Effective July 1, 2014, out-of-state sellers making taxable sales of tangible personal property, specified digital goods and services, are presumed to be soliciting business in NJ and are therefore required to collect and remit sales tax if both of the following are true:
- “The seller enters into an agreement with a New Jersey independent contractor or other representative for compensation in exchange for referring customers via a link on their website, or otherwise, to that out-of-State seller; and
- The seller has sales from these referrals to customers in New Jersey in excess of $10,000 for the prior four quarterly periods ending on the last day of March, June, September, and December.”
Prove it
Don’t think you have New Jersey nexus? “The burden is on the seller to prove that they are not required to collect and remit sales tax.”
Additional information is available on New Jersey Division of Taxation Technical Bulletin 78(R).
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