As a result of the U.S. Supreme Court’s June 21, 2018 decision in South Dakota v. Wayfair, Texas businesses selling items or services into other states may be required to collect taxes for those states. Additionally, sellers outside of Texas who were previously not required to collect and remit Texas sales and use tax may have to begin collecting Texas tax on their sales into Texas beginning on Oct. 1, 2019.
The Comptroller has updated Rule 3.286 (Seller’s and Purchaser’s Responsibilities) to address the permitting and collection requirements of sellers because of the Wayfair decision. These changes are effective on Oct. 1, 2019. This includes transition rules to explain how remote sellers determine when they have to start collecting. In the near future, the Comptroller will also update its franchise tax rules because of the Wayfair decision.
In addition, the 86th Legislature (2019) adopted HB 1525, which creates new tax responsibilities for marketplace providers and marketplace sellers, and adopted HB 2153, which provides a single local tax rate for remote sellers. These two laws become effective Oct. 1, 2019.
The Wayfair decision held that a state could impose sales and use tax collection obligations on vendors without physical presence in the state (remote sellers), provided that the collection obligation would not impose an undue burden.
Beginning Oct. 1, 2019, the Comptroller will enforce the collection obligation on sellers whose only activities in the state are the remote solicitation of sales. The Comptroller has provided a safe harbor for remote sellers. The Comptroller will not require remote sellers with total Texas revenue of less than $500,000, in the preceding twelve calendar months, to obtain a permit or collect and remit sales and use tax.
The 86th Legislature also eased the burden on remote sellers by enacting HB 2153 (codified at Texas Tax Code § 151.0595), which provides a single local tax rate for remote sellers. A remote seller may choose to collect this single local tax rate by notifying the Account Maintenance Division via email or mail instead of calculating and remitting local tax based on the total local tax rate in effect at the destination.
The email address is Sales.firstname.lastname@example.org. The mailing address is:Comptroller of Public Accounts
For the period of Oct. 1, 2019 – Dec. 31, 2019, the single local tax rate will be 1.75 percent. Going forward, the Comptroller will compute the single local tax rate and publish it in the Texas Register prior to the beginning of each calendar year.
A seller who is already permitted to collect and remit Texas sales and use tax does not need to make any changes because of Wayfair unless it sells through a marketplace. The safe harbor for remote sellers and the single local tax rate option are not available to these sellers.
The 86th Legislature enacted HB 1525 (codified at Texas Tax Code § 151.0242) to address the tax collection responsibilities of marketplace providers. It is effective Oct. 1, 2019.
A marketplace is a physical or electronic store, internet website, software application, or catalog that third-party sellers use to make sales. A marketplace provider is a person who owns or operates a marketplace and processes sales or payments for marketplace sellers (third-parties). Examples include Amazon, eBay, Walmart Marketplace, and Etsy.
The law requires marketplace providers to collect and remit state and local sales and use tax on all third-party sales. Marketplace sellers are not responsible for collecting and remitting sales and use tax on their sales through the marketplace, but they must retain records of the sales.
Taxable purchases from remote sellers have always been subject to Texas sales and use tax. If the seller has a sales tax permit, the seller must collect the tax. If the seller does not have a permit or the seller fails to charge tax, the purchaser must pay the tax directly to the Comptroller’s office on either a use tax return (PDF), (if they do not have a Texas Sales and Use Tax Permit) or a sales tax return (if they do have a permit).
Sellers located within the United States may apply for a free sales tax permit:
Remote sellers located outside the United States can register to collect and remit by sending in Form AP-201, Texas Application (PDF).
For more information about reporting requirements, record-keeping requirements, due dates, and other sales tax-related topics, visit our Sales and Use Tax webpage.
For more information about Texas businesses’ collection responsibilities for other states, see these websites:
Disclaimer: Each website listed is responsible for its own information, and the Texas Comptroller of Public Accounts is not responsible for maintaining the information provided on these websites.
The Court overruled two previous decisions that held that a state can only require sellers of goods and services to collect tax when they have a physical presence in the state. Physical presence depends on the facts of each situation, but common ways that sellers have a physical presence in a state include the presence of employees or inventory in the state, or owning real property in the state. The decision means that states can now impose tax collection responsibilities on sellers who have an economic presence without any physical presence. For example, a state may decide that remote sellers have to collect and remit sales and use tax once they make total sales into the state of $100,000 during the previous calendar year.
A remote seller is a seller whose only activities in this state are the remote solicitation of sales. Rule 3.286(a)(4)(I) and (J).
Remote solicitation of sales includes activities such as soliciting sales through:
Remote sellers that made total sales of $500,000 into Texas for a prior 12-month period should begin collecting the applicable sales tax on your purchases delivered into Texas on Oct. 1, 2019. If any purchases are not taxed appropriately, you must still report the applicable use tax directly to the Comptroller’s office.
Our office offers free electronic reporting using Webfile or Electronic Data Interchange (EDI), but we do not have software that integrates with a seller’s system to help with collecting and remitting. Contact us for questions about the taxability of goods and services, rates, and related issues.
Help with calculating, collecting, preparing returns and remitting the sales tax is available from various private service providers and tax practitioners.
No. None of the new laws passed during the 86th Legislative Session impose new taxes. These new laws only address tax collection.
Yes. Depending on your activities, you may be a remote seller, a marketplace provider, a marketplace seller, or any combination of the three. There are different tax responsibilities for each type of seller.
Your responsibilities do not change unless you sell through a marketplace provider. The marketplace provider will collect Texas sales and use tax beginning Oct. 1, 2019. You will no longer be required to collect Texas sales and use tax on sales through a marketplace provider.
No. The laws could apply to a variety of business types, including those that make sales through the Internet, by mail or telephone order, or by any other means where a business makes sales of items that are delivered into Texas such as a furniture store, jeweler, or seller in another state making sales delivered into Texas by common carrier.
All sellers, including remote sellers, must maintain and retain required records for at least four years.
Yes. You are required to collect local use tax based on the local tax applicable to the location to which you are shipping. You may elect to use the single local tax rate instead of having to determine the rate based on destination. You must notify the comptroller if you elect to use the single local tax rate by sending a notice via email to Sales.email@example.com or mail to the Account Maintenance Division. The mailing address is:Comptroller of Public Accounts
A remote seller whose total Texas revenue from sales into Texas in the preceding 12 calendar months are less than $500,000 is not required to obtain a permit and collect tax. The dollar amount is based on gross revenue from sales of tangible personal property and services into Texas. The amount includes separately stated handling, transportation, installation, and other similar fees you collect. It also includes sales for resale and sales to exempt entities.
No. You are responsible for collecting tax if you were engaged in business in Texas prior to Oct. 1, 2019, such as by maintaining an office or property in the state or having representatives in the state who take orders or make sales or deliveries.
If you determine that your total Texas revenue from sales into Texas does not exceed $500,000 and are not otherwise engaged in business in Texas, then you are not required to obtain a permit or collect and remit tax on sales to customer in Texas.
Please keep in mind that you may at a later date exceed the safe harbor amount. Once you exceed the amount, you will be required to obtain a permit and begin collecting and remitting tax on sales to customer in Texas beginning on the fourth month after the month in which your total Texas revenue exceeds $500,000. You should keep records of your sales into Texas.
A marketplace provider is required to certify to you that it will collect sales and use tax. You should receive a certification from the marketplace provider. If the marketplace provider does not issue any type of certification, then you should collect sales and use tax until you receive a certification.
No. You do not include any sales for which you have received and accepted in good faith certification that the marketplace provider will collect sales and use tax.
For example, assume during a 12-month period a remote seller makes $300,000 in total sales into Texas through its website and $600,000 in sales through multiple marketplace providers that certify they are collecting and remitting the tax. The remote seller has no employees, inventory, or warehouses in Texas. Based on these facts, the remote seller is covered by the safe harbor and is not required to collect and remit tax for Texas.
No. You do not need a permit if you have received and accepted in good faith a certification that the marketplace provider will collect sales and use tax. However, you must retain required records of all marketplace sales.
The marketplace provider is subject to audit for all transactions on the marketplace. The marketplace seller may also be audited and subject to liability for any deficiencies resulting from incorrect or insufficient information provided by the marketplace seller.
A remote marketplace provider does not have to be permitted and start collecting and remitting until the marketplace meets the $500,000 threshold or otherwise is engaged in business in the Texas - the same as any other seller.
The single local tax rate is an alternative local tax rate that can be used by remote sellers only, unless the remote seller is a remote marketplace provider (The single local tax rate is not available to any marketplace providers). The single local tax rate for the period of Oct. 1, 2019 through Dec. 31, 2019 is 1.75 percent. We will compute the single local tax rate prior to the beginning of each calendar year and publish it in the Texas Register.
A remote seller may elect to use the single local tax rate in place of the actual local use tax rate for a particular location. If so, the remote seller must notify the Comptroller’s office in writing of its election by sending a notice via email to firstname.lastname@example.org or mail to the Account Maintenance Division. The mailing address is:Comptroller of Public Accounts
Yes. You may apply for a refund on an annual basis of the difference between the single local tax rate paid and the local tax rate you would have paid at your location. We are developing the procedures to apply for the refund.
Yes. We plan to amend appropriate rules to incorporate the decision in Wayfair for franchise tax returns due on or after Jan. 1, 2020. We expect to establish an economic nexus threshold and will follow our normal rule adoption process by seeking input from the public and our stakeholders.
Other taxes administered by the Comptroller will be addressed at a future date, and the tax responsibility will be prospective.
In 2015, the Texas Legislature passed House Bill 855, which requires state agencies to publish a list of the three most commonly used Web browsers on their websites. The Texas Comptroller’s most commonly used Web browsers are Google Chrome, Microsoft Internet Explorer and Apple Safari.