Recently updated guidelines from the Multistate Tax Commission (MTC) are generating considerable uncertainty—and growing concern—for companies that do business online. As more states adopt the new guidelines, businesses with a web presence could find themselves subject to unexpected new state income tax liabilities and filing requirements.

Adapting 1950s Tax Rules to the Internet Age

In 1959, Congress passed the Interstate Income Act—usually referred to by its public law designation, P.L. 86-272—which prohibits states from imposing their state income taxes on out-of-state businesses as long as those businesses’ in-state activities involve only the solicitation of orders for tangible personal property. It does not apply to other types of sales, such as real property, intangibles, services, or software.

A lot has changed since 1959, particularly in the ways that businesses interact with customers. As a result, many states raised questions about how P.L. 86-272 should be applied to internet-based transactions, where out-of-state sellers of tangible personal property use their websites not only to solicit orders, but also to provide customer service, warranty protections, product upgrades, and other non-sales activities.

Further uncertainty arose after the U.S. Supreme Court’s 2018 decision in South Dakota v. Wayfair Inc. Although the Wayfair decision addressed sales taxes, not income taxes, it specifically stated that an internet seller “may be present in a state in a meaningful way without that presence being physical.” This language suggests the court would be open to the idea that sellers who interact with customers online are engaging in business activities that go beyond the mere solicitation of orders.

To address the uncertainty, the MTC in 2021 added a section addressing internet activities to its P.L. 86-272 guidelines. The new guidance states that, “as a general rule, when a business interacts with a customer via the business’s website or app, the business engages in a business activity within the customer’s state.” In other words, P.L. 86-272 would no longer apply to those transactions, and the businesses would no longer be protected from paying income taxes in their customers’ states.

Note, however, that the MTC’s position is simply its interpretation of P.L. 86-272. It does not have the force of law. It is up to the individual states to decide if they will adopt all or part of the MTC guidelines.

What’s Protected—and What’s Not

The MTC statement lists eight examples of internet-based activities that would subject a business to state income tax in a customer’s state. These include common online features such as:

• Providing post-sale assistance to customers using chatbots or emails initiated by clicking on an icon on the company’s website
• Placing “cookies” onto customers’ computers to track their interests or purchase plans
• Allowing visitors to submit credit card applications or job applications through the website
• Remotely fixing or upgrading customers’ products by transmitting code to those products
• Offering extended warranty plans to existing customers
• Contracting with a marketplace facilitator (such as Amazon) to maintain inventory and ship directly to customers from an in-state fulfillment center

Since almost every business with a website or smartphone app uses cookies, chatbots, emails, and other common online features, the MTC’s new interpretation would virtually eliminate P.L. 86-272 protection for most businesses that sell products online.

The States Respond

As mentioned previously, it is up to the states to decide if they will adopt the MTC’s position. California was the first state to do so, when the California Franchise Tax Board announced in February 2022 that it would adopt the MTC examples and apply them retroactively. Two months later the New York Department of Taxation and Finance issued draft regulations that closely track the MTC’s revised interpretation.

Tax authorities in several other states have also announced their intention to adopt the MTC standard but have not yet issued draft regulations. It is also possible that some tax authorities could decide to apply the MTC’s revised interpretation without issuing advance guidance, catching taxpayers off guard during an audit.

Of course, these changes are not going unchallenged. In August 2022, the American Catalog Mailers Association brought the first lawsuit challenging California’s new rules. The case is currently awaiting trial. Other organizations are almost certain to file similar suits as other states adopt the MTC’s revised interpretation.

As the new rules take shape in various states—and as the lawsuits challenging them make their way through the courts—companies that do business over the internet face considerable uncertainty. P.L. 86-272 already provides only limited protection against state income tax requirements. The MTC’s revised guidance will limit it even more. Any company that conducts business over the internet should proactively review its business activities to determine whether the MTC’s revised interpretation will apply to them and, if so, what effect it will have.

Reach out to Holbrook & Manter with any questions you may have on this matter. We would be happy to assist you.