If you are selling goods or products online and some of your customers are located in Texas, you need to be aware of the state’s Internet sales tax rules. Keep in mind that collection of sales tax on Internet sales has been a matter of ongoing debate both within individual states and at the federal level.
The current default rule throughout the United States is that you must collect sales tax on Internet sales to customers in those states where your business has a physical presence. The physical presence rule is based on a 1992 United States Supreme Court decision, Quill Corp. v. North Dakota, that addressed the obligations of mail order businesses to collect sales tax on out-of-state sales. The decision has been extended to include online retailers. Generally speaking, a physical presence means having:
The corollary to the physical presence rule is that, if you do not have a physical presence in the state, you generally are not required to collect sales tax for an Internet-based sale to someone in that state.
Examples of Physical Presence
Example 1: You are an online retailer located in Bangor, Maine and make a sale through your website to a customer in El Paso, Texas—a state where your business has no physical presence: You are not required to collect sales tax from the El Paso customer.
Example 2: You are an online retailer located in Austin, Texas and make a sale through your website to a customer in San Antonio, Texas: You are required to collect sales tax from the San Antonio customer.
Example 3: After several years of operating solely out of a warehouse in Bangor, Maine, you open a one-room satellite office just outside of Houston, Texas—a state where previously you had no physical presence. A day later, you make a sale through your website to a customer in Dallas, Texas: You are required to collect sales tax from the Dallas customer.
While the physical presence rule may seem clear, this is not necessarily the case. In Quill, the Supreme Court discusses not only physical presence, but also several types of potential nexus (connections) between a business and a state. Many states, including Texas, have used the term nexus rather than physical presence in their sales tax laws, regulations, or other official documents, and have sometimes defined nexus in ways that could go beyond physical presence.
For basic guidance on how physical presence is defined under Texas law, consult Section 151.107 of the Texas Tax Code (Tax Law), which provides a variety of definitions for “RETAILER ENGAGED IN BUSINESS IN THIS STATE.” The first of the statutory definitions refers to maintaining a place of business in the state directly, or indirectly or through a subsidiary or agent. The fifth definition acts as something of a catch-all, by stating that a retailer who solicits orders by mail or other media can be required to collect and pay sales tax if permitted by federal law.
For additional guidance, check Rule 3.286 under Title 34 of the Texas Administrative Code, which provides definitions of when a seller is engaged in business in Texas. The Rule includes a statement that a person does not have nexus with the state simply because he or she has a certificate of authority to do business in the state. The Rule also states that an out-of-state seller with nexus with the state must collect sales tax.
One other source, a 2006 online publication from the Texas Comptroller of Public Accounts (TCPA) on Internet sales, states that businesses with “physical representation” in Texas must collect sales tax but an “out-of-state seller is not required to collect Texas tax if the seller only conducts business in Texas from out-of-state by mail, telephone, or via the Internet.”
Under Texas law, certain items are exempt from sales tax, and certain purchasers may not be required to pay sales tax. For example, most food and food ingredients are exempt from sales tax. You can find information on various exemptions in Rules 3.286 through 3.344 of the subchapter on sales and use tax in the Texas Administrative Code. Also, the TCPA continues to make available online a guide to exemptions, dated September 2007, that focuses on exempt organizations. You may also want to check the TCPA’s Sales and Use Tax FAQ page.
Texas also has an annual sales tax holiday from the first Friday in August through to the following Sunday. The holiday covers certain clothing, footwear, backpacks, and school supplies costing less than $100 per item. The TCPA publishes awebpage and a FAQ page on the holiday. In addition, more detailed information is available in Rule 3.365 of the Texas Administrative Code.
In cases where the online retailer does not have to collect sales tax, it is the customer’s responsibility to pay the tax—in which case it is known not as a sales tax but, rather, a use tax. The TCPA states on its use tax FAQ page that one of the most common reasons for a purchaser being subject to use tax is purchasing a taxable item from an out-of-state retailer without paying Texas tax and using the property in Texas. The FAQ page goes on to state that if a purchaser purchases merchandise "through a catalog or the Internet from a seller located outside of Texas and use[s] the taxable item in Texas," then the purchaser owes use tax on the purchase. You can find more formal guidance about the use tax in Rule 3.346 if the Texas Administrative Code.
At the federal level Congress has repeatedly considered legislation that would affect large Internet retailers and how online sales taxes are collected in all states. The most recent form of a proposed federal law is the Marketplace Fairness Act of 2015. As in previous versions, the 2015 Act would allow states to require sellers not physically located in their state to collect taxes on online and catalog sales made to people in their state. Sellers that make $1 million or less in annual sales and have no physical presence in the state would be exempt from this requirement. States would have to meet certain criteria to simplify their sales tax laws and make sales tax collection easier before they could require sellers to collect the tax.
It is the long established physical presence rule that will apply with regard to Internet sales to customers in Texas. Online sellers with possible in-state agent or related party status should check the rules more carefully. This is a contentious and evolving area of law so be sure to check in periodically with the Texas Comptroller of Public Accounts to see if the rules have changed.
Updated: April 14, 2016