Resources for Buying and Selling Online Businesses

Are Buyers or Sellers More at Risk with Sales Tax Successor Liability?

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Ignorance is not bliss when it comes to sales tax. Believe it or not, today’s topic is an exciting one for all buyers and sellers. Our guest is Diane Yetter from the Sales Tax Institute and Yetter Tax. She joins us to talk to us all about sales tax, sales nexus, click through Nexus,  and more. Diane is a niche entrepreneur in her own right, uniquely helping other entrepreneurs navigate the tricky waters of sales tax.

Diane businesses focus exclusively on sales tax, helping companies learn what sales tax means for them and what they need to do to be in compliance with state tax laws. SalesTax Institute and Yetter Tax are educational consultancies, providing people with all the tools they need to learn the why, when, where and how of remitting sales tax for each state where they do business.

Episode Highlights:

  • What click-through nexus is.
  • Where and how affiliate payments are made.
  • The Wayfair decision and the resulting state actions.
  • Physical, Economic, and Marketplace nexus.
  • Where to find the economic guide by state.
  • Educational tools Diane offers on her website.
  • Are there advantages to learning how these nexus’ work versus hiring someone to do it?
  • The penalties for collecting sales tax and not remitting it.
  • Concerns and risks in the acquisitions realm.
  • The process each state goes through to identify sellers out there.
  • We go over the risks to buyers if the seller has not satisfied their state economic nexus.
  • The odds of something coming back to haunt the new owner of a business if there are unpaid nexuses.
  • The resources the Institute provides to help listeners wade through all this.


Mark: Alright guys welcome to another episode of the Quiet Light Podcast. Real quick before I talk to Joe; if anybody out there hasn’t left a rating on the Quiet Light Podcast, do me a favor go to iTunes or Stitcher or wherever you listen to us, leave a rating, we certainly appreciate it. Makes us feel good. Makes us feel like we’re doing a decent job at this whole podcasting thing. So thanks in advance to everybody that has done that. Okay, so Joe, when we’re talking to a potential seller or even talking to a potential buyer one of the topics that comes up often, is how long does it take to complete the deal, right? And we have people wondering am I going to get this done in three months and what have you. The fact is these businesses are complex. On the upfront summaries what we see usually is pretty plain and simple. You see revenue, you see earnings, you see a multiple, and you kind of think well this should be nice and capsid and quick. And sometimes it is. But other times you have to look a little bit deeper. And you and I have talked about this before, right? For buyers to make sure you’re looking beyond the multiple and the multiple is one point of data. And for sellers and buyers alike to also have patience with the process and understand that you’re selling a complex asset. I know you had Carl on the podcast who is a recent buyer of one of our properties. And it was one of those situations where the deal took longer than expected and the numbers weren’t as necessarily straightforward as maybe you would think when you just look at this. But the net result for him as a buyer and for a client were phenomenal by being patient and looking a little bit deeper.

Joe: Yes, no question. This particular deal took I want to say from letter of intent to closing seven and a half months which is probably the longest I’ve ever had. There’s really specific reasons for it. And Carl is partly to blame for it because he made a mistake on his application to the SBA lender. So we had to do the process essentially twice. The seller Kevin hung in there with Carl because Carl was a nice guy. It made a difference. And at one point when the deal fell apart, we had to go back. Well, my advice was to go back out to market for an awful lot more money because the business has grown a lot; probably worth $400,000 more. Carl and Kevin got along so well that Kevin said no I don’t want to do that to Carl. Let’s just bump the price thousand $160,000; crazy. Most buyers would walk away. They’d be like no. Yesterday it was this price today you want $160,000 more. Carl didn’t do that and he’s being rewarded greatly for it right away instant equity, in my opinion, a quarter of a million dollars in the business. And then some things that he’s doing on his end immediately once that first container load comes in doubling the discretionary earnings because of a focus on reducing COGS. It’s just fantastic what he’s doing. And it’s a great lesson for buyers and sellers to be patient, to be focused on helping each other, and not looking just at that multiple.

Mark: You know I love this sort of story because I get it right from a buying standpoint you’re looking at a lot of deal flow you need to evaluate businesses quickly. So the temptation is often to look at just the high-level metrics and to eliminate something based on that. But so many of these businesses and if I could just say you know maybe even a plug for Quiet Light you know when we bring a business to the market we usually believe in that company pretty strongly as being a good value play for buyers. And so taking the time to kind of dissect it and to understand more than the top-level metrics and what’s going on underneath and look for those opportunities for that immediate win and again looking beyond that multiple. So this is a really good story of somebody doing just that and seeing a really quick reward on that. I want to listen to this. I want to hear all the dynamics. This is one of those more complex deals and I think a really good example of what happens when the deal isn’t straightforward but still works out in the end.

Joe: Yeah. Hey, one other thing. I had a really strange interruption everybody in the audience I want you to get 10, 15 minutes in. Chris, our producer asked me about a particular person. I’m trying to find out who this is. If you could just get that far listen in and shoot me a note. I want to try to track that person down. Thanks, Ben. I appreciate it. Let’s go to the podcast.

Joe: Hey folks it’s Joe from Quiet Light Brokerage and believe it or not this is an exciting topic. It is about sales tax, sales tax nexus, click-through nexus; a term I had not heard until today. Our guest is Diane Yetter or she’s from the Sales Tax Institute. So let me try that again. She’s from the Sales Tax Institute, see being a podcaster is not as easy as it sounds. She’s also from Yetter Tax; both all hers. Diane, welcome to the Quiet Light Podcast.

Diane: Thanks, Joe. I’m glad to be here with you.

Joe: Alright, so that I don’t stutter and stumble my way through trying to tell people what you do, why don’t you help us out with that?

Diane: Sure. What we do is we are a business that focuses exclusively on sales tax. And we help companies learn what sales tax means to them. So we are primarily an education business. And then we also help them understand what they need to do to be in compliance with sales tax. So we do that through helping them understand where they have nexus, what’s taxable that they buy and sell, help them get appropriate systems set up so that they can handle that correctly, and then in the hopefully not event that they get audited we can help them with that. So we do that through our consulting side. And then we also provide a variety of educational courses through our Sales Tax Institute.

Joe: And it’s good stuff. I just looked at some videos this morning and I’ve learned a bit already just in your free snippets online. And let’s just throw out one of those things because I’m sure the vast majority of listeners have not heard of and I’m going to look at my notes click-through nexus. Let’s just give them something that they don’t know about right away before we reinforce what they should know about which is overall nexus and collecting sales taxes and the risks of not and the rewards of collecting when they go to sell their business someday. So why don’t you just tell us what click-through nexus is, please?

Diane: Sure. Click-through nexus is a concept that New York started in 2008. And it’s really just the attempt to move to a digital equivalent of paying salesman commissions which was found to be constitutional back in a case against Crypto Corporation in about 1960. And so what click-through nexus is is when a promoter or a seller and this really was intended to go after Amazon. Back in the day when all Amazon sold was books and people like you, Joe, if you wrote a book and you put a link on your website that referred people to Amazon to go buy your book that you would then get paid a commission; a referral fee or making that referral to Amazon. So Amazon was the seller. You were not. They paid you for sending somebody to them. Really no different than a salesman going around and knocking on a door and when they made a sale they would get a commission. And so what New York started and about 25 other states followed along over the years is that paying that commission to somebody in a state if they generated at least a certain amount of sales. Most states had $10,000 of sales from one or more commissioned agents that that created nexus for the out-of-state seller in this example Amazon.

Joe: Yeah. And it’s a term I hadn’t heard of before. I’m impressed if the state of New York actually originally called it click-through nexus back in 2008. Just curious do you know if they call it something else then and have [inaudible 00:09:09.2] click-through nexus?

Diane: Well what it was affectionately or unaffectionately referred to by the media was the Amazon Tax.

Joe: The Amazon Tax, okay. So most people look at nexus says okay I’m selling a physical product I’ve got a warehouse or Amazon has a warehouse in how many different states that’s where my nexus is. What this is it’s for the content sellers, it’s for the affiliate marketers, it’s for people that are doing product reviews where you don’t actually have a physical presence. You don’t have the—I’m sorry, the physical product. You’re writing content, you’re telling the story, you’re doing reviews, and somebody in Hawaii—no I’m sorry, if you’re in Hawaii and you write the content and somebody buys it in Minneapolis and there’s no call center, there’s no physical—I’m totally screwing this up, and there’s no physical warehouse there, does that mean that you’ve got to collect sales taxes from that person that bought it or on that sale in Minneapolis?

Diane: So what it applies to is if the seller; so in this case, if you are not the seller of the content that you’re just the person promoting the content for somebody else that’s selling it.

Joe: The person that owns the physical product [crosstalk 00:10:24.5] sales taxes.

Diane: The person that owns the physical product is the one that would need to collect the tax if they make payments to you as the promoter of it.

Joe: Okay, so if anyone listening sells a brand on Amazon and also chose to do the affiliate program through Amazon and is allowing others to sell that product click-through. You should be collecting nexus wherever those sales. Is it—I’m sorry it’s not where those sales occur or is it where that person that wrote the blog is?

Diane: It is supposed to be a combination of those two. However, that’s often difficult to ascertain as to whether or not that affiliate payment generated the sale in that state. And so it really is going after where the affiliate payment is made to.

Joe: I got you. Okay, we may need title this to stumble through podcasts because sales taxes are crazy and there’s so much information and misinformation. And is it really gray or is it all black and white conversations going out there that I think just the more we talk about the more we’ll learn about it. So let’s talk about the big Wayfair decision and what has come from that. Can you touch on that; what it was and the end result of for sales tax collection?

Diane: Sure. So the confusion that we just talked about with the click-through nexus actually is almost kind of going away because of the Wayfair decision and the resulting state actions. So last June 21st; so close to a year ago, the U.S. Supreme Court issued their long-awaited decision in South Dakota v.  Wayfair which was a record-breaking case in terms of how fast it got to the Supreme Court. The original law was only effective in May of 2016. So for a law to be in essence validated and decided by the Supreme Court in just over two years is pretty amazing. But basically what the case was a test and when South Dakota passed their law they wrote it in such a way that they were in violation of the longstanding Supreme Court decisions and Quill Corporation and National Bellas Hess as well as the Commerce Clause. And so what the Commerce Clause said is that a state cannot impose a tax collection responsibility on an out-of-state seller unless they have a substantial presence in the state. Now what the Quill case and the National Bellas Hess case over the last 50 years had interpreted is they added a word into that Commerce Clause test. They said substantial physical presence. What the Wayfair court determined was that physical was never a word in the Commerce Clause and that the state or the prior courts had simply interpreted it to require that physical presence. So by their decision where they actually stated that their decision in Quill was wrong; and they actually said that in the decision, they were overturning that Quill decision. By doing that they said physical presence is no longer a requirement before a state can impose a collection responsibility on an out-of-state business. Rather it needs to have a substantial presence. The company has to have a substantial presence in the state. And the South Dakota law defines substantial presence as having more than $100,000 of sales or more than 200 sale transactions which we define as an invoice into the state. And so that is—

Joe: Does this make nexus defined as having a 3PL or Amazon having a warehouse, does this make nexus go away and it flips to what you’re talking about now?

Diane: It does not. Physical presence is still the first test that needs to be identified. So if there is an Amazon warehouse and you have inventory if you’re an FBA seller then the economic nexus really doesn’t matter. And the thresholds that are set in the states with the economic nexus are not relevant because of the physical presence of the inventory in the warehouse.

Joe: Okay but if there’s no physical nexus it then flips to economic nexus.

Diane: Correct.

Joe: Okay, and how many states currently have adopted the economic nexus?

Diane: So we have almost all; every state has either enacted it and it’s effective, enacted it and it will be effective. The latest one we have going effective I believe is July 1 right now, we’ve got some October ones that are in propose. And we’ve got I think its six states left that are in proposed status right now. The only one that has rescinded and doesn’t look like it will pass this year is the state of Florida.

Joe: God I love the state of Florida.

Diane: Right.

Joe: Where on your site and which sites; Sales Tax Institute or Yetter Tax can someone go right now and figure out which states have economic nexus? Do you have something like that?

Diane: We absolutely do. So you can go to and then go to our resources section and on that, you’ll see a link to the remote seller nexus chart. And on that there are; that page will have all of the different types of remote seller nexus. So the click-through we talked about, affiliate, marketplace, economic, and the notice and reporting. There will also be a link on their specific economic nexus state guide which will give you all of the various different nuances of the rules for economic nexus.

Joe: Look at that you’ve even got a video in there as well. Fantastic. Okay, part of what you do at the Sales Tax Institute is education. You’re training people to understand and learn about sales taxes. Are these a combination of in-person training or is it online training as well?

Diane: So we do a variety of different types of training. We have monthly webinars that are live in-person or live webinars where you can actually interact with me and ask me live questions. So we have a variety of different topics that you can look at.

Joe: Is there a cost to the webinars?

Diane: There is. Those cost $175 but you can have your entire team gathered around one phone line and it’s a single charge.

Joe: And you’ll sleep better that night or maybe not at all depending on really.

Diane: Exactly.

Joe: When I was looking at your some of the videos I wrote down is ignorance bliss?? And I think it’s not when it comes to sales taxes. And we’ll get into that a little bit more but—alright so there’s a monthly webinar; very, very reasonable price.

Diane: A monthly live webinar, we also have some on-demand webinars, and one of the ones that might be very helpful to those of you listening now is we have a sales tax 101 webinar. And so that’s on-demand. The cost of that is also $175 but you can watch it as many times as you want in 30 days. And that will go through and give you all the basic concepts and it was updated after the Wayfair decision so it’s got a lot of the current information about what’s going on today. So we’ve got I think it’s five on-demands and then we also have live in-person classes. So we have a three-day basics of sales tax class if you really need to get in depth. That’s held in June annually and then we have; it is usually in Chicago.

Joe: Okay.

Diane: And then our advanced workshop is for people with four or more years of experience and that is held annually in the April-May. We just had that this year in Chicago and next year we’ll be out on the West Coast. We also have a; we’ve offered it twice now, a nine-week online class. We call it sales tax jumpstart. So we will offer that again in September. Exact date not yet defined. And that is really meant and who a lot of our attendees have been in our first two cohorts of that are people that are like your listeners Joe that are smaller businesses, can’t get away for three full days of sales tax, and we give them basically all the steps and tools for what they need to do to be compliant. So we break it down into two-hour blocks over nine weeks. And we also share with them a lot of the tools we use in advising our clients. So we try to help them be more self-sufficient.

Joe: You know it’s interesting as you’re talking I know that we’re sharing your URL. I mean we’re 15 minutes into the podcast and we normally don’t pitch and promote the people that are on. It’s not about that it’s about education. But I think that this is education that you can’t listen to it; this podcast and understand everything about sales taxes. So I think I’m having Diane’s share this folks early because this information is so complex and so in-depth and changing on a monthly basis because new states are enacting the economic nexus and you need to have some sort of downloadable chart to understand it. Or better yet Diane what we do here often is tell people to outsource. Like you can do the bookkeeping yourself but you’re probably a marketer so focus on marketing and outsource the bookkeeping. Yeah, there’s legal stuff you’ve got to do for your business, don’t hire an attorney and bring them in-house so you’d outsource that. Why in the world does an entrepreneur that’s running a small business with let’s say a staff of six need to go through the Sales Tax Institute and learn all of these things themselves when they can hire a company just to do it all for them. I know you don’t do that; you train, you educate, you consult. Why not just hire a company to do it all? Again is that a little bit of ignorance is bliss you still have to know it or can you just hire one of these firms that we hear about that will help you set it up and collect and pay the states, what to do and you just don’t worry about it. Is that a fantasy?

Diane: It’s not exactly. You could certainly hire. There are a couple of different things that you need to do. If you’re selling on a marketplace platform there are less requirements that you need to worry about and that is because the actual tax calculation is going to be handled by the marketplace.

Joe: Let’s call the marketplace Amazon. Is that Amazon is going to collect them?

Diane: Amazon is the marketplace; correct. If you’re selling on Amazon you don’t need to acquire software to calculate the tax because Amazon is calculating the tax on that order. Now Amazon is going to send you the data and the financial dollars that they collect in the sales tax. In some of the states, you are going to have to prepare the sales tax return and remit that tax directly to the state. Now the trend that we’re seeing in 2019 is states are saying you know what we’re going to remove the burden to the sellers that sell on marketplaces and put that tax collection and remittance responsibility on the marketplaces. And so we’ve got a vast number of states that already have enacted that legislation. And we’ve got a large number of states that have it still proposed this year. We call this our marketplace nexus on our charts. And so what we’re assuming is that—I think there’s only five or six states that don’t have any legislation proposed to this year or passed yet. And the rest of them are really moving towards saying we’re going to remove that burden.

Joe: Okay I just want to say. I love that. I love all in capital letters marketplace nexus because that takes the burden out of the hand of the entrepreneur, right? I mean they’re just—

Diane: It does as long as they are only selling on a marketplace.

Joe: Right.

Diane: I think what we find is a lot of the sellers that sell on marketplaces also have their own website.

Joe: They should. In my opinion, it’ll bring a higher value. The problem is that Amazon is growing at such a pace. There are more businesses that used to be 75% let’s say Shopify, 25%t Amazon and now it’s flipped.

Diane: Right.

Joe: That will level out over time I’m sure. But yeah let’s talk about that. So somebody that is selling on third-party marketplaces but they’ve also got an Amazon store—I mean their own website, even if they’re only selling 5% of their total revenues.

Diane: Correct. So where it gets challenging is most of the states require you to include the sales on the marketplaces along with your direct sales in determining whether or not you exceed the threshold to determine if you have substantial taxes. With most states its $100,000 of sales or 200 transactions. So if you’re very successful on Amazon and only selling maybe 5 to 20% of your sales are on your own website then you still may exceed those thresholds. And now you do need to have some sort of solution in your direct sales to calculate the tax and then you’ll have the responsibility for remitting it. So yes there are companies that sell software that can integrate with your e-commerce platform. Some of the e-commerce platforms have some of the software baked in so to speak so that you don’t have to separately license it.

Joe: Which ones have that baked in?

Diane: So Shopify Plus has a baked-in version of Avalara. Magento I think has some baked in of either Avalara or [inaudible 00:23:58.2] depending upon the version that you’re on but others you may have to pay a license fee for that calculation side. The second piece of it is once you calculate and collect the tax you need to remit that tax to the various different tax authorities. Those software companies also could do that for you as an outsource, your bookkeeper may be able to do that for you, and there are also other firms that we work with that are just sales tax outsourcing compliance, providers. My firm doesn’t do that but we do work with other firms that do.

Joe: Do you have references for those firms on your website?

Diane: We do.

Joe: Okay.

Diane: We got those on our website.

Joe: So what would happen if somebody signs up for Shopify plus they collect all this money and they don’t properly set up the remittance or the payment to the states? How long is it going to take for the states to figure out and what are they going to do?

Diane: Well collecting tax and not remitting it is about the worst thing you can do.

Joe: Can we call that a crime?

Diane: It actually is criminal fraud. It will earn you an orange jumpsuit.

Joe: It is the new black so that’s—

Diane: It is the new black. You’re right.

Joe: Thank you. I have to say it. Sorry, everyone.

Diane: You had to. Everybody does. So just as you never want to be withholding income taxes from your employee’s paychecks and not turn those over to the government collecting sales tax and not remitting it is at that same level. Sales taxes when you collected are considered trust taxes. So you need to make sure that you are remitting the tax that you collect. How quickly will the state find you? That really depends. Often it can happen because an auditor bought something from you and then doesn’t see you registered. Or it could be a customer that complains.

Joe: That could just be bad luck. Do the right thing folks; do the right thing. Ignorance is definitely not bliss. Let’s talk about this a little bit. We’re 20 minutes in let’s get to the meat of what—say potential buyers and potential sellers are concerned about with both marketplace nexus and economic nexus know, right? Alright, I’m going to just redefine the economic nexus. I get that’s when you hit a certain threshold. What’s the first nexus? Oh, it’s physical nexus.

Diane: Physical; correct.

Joe: Alright. So yeah this is the stumble through podcast. I’m going to rename it all. Okay, so we’ve got a business for sale. They’ve done four million dollars in revenue in the last 12 months. Let’s just say they’re keeping 20% so the profits are $800,000. The business is for sale for three and a half, four-time multiple and they get three point two million dollars. And let’s say that they’ve been around for five years. They’re selling on third-party marketplaces at this point it’s probably that 75% there and 25% elsewhere on their own Shopify store, Zulily whatever the case might be. If they’re only collecting sales taxes where they have physical nexus and in their own home state and I buy the business; it’s an asset sale, not a stock sale.

Diane: Right.

Joe: What’s the risk to me if any?

Diane: So I think the first thing is if they’re actually collecting in all of the states who have physical presence; so where they’ve got inventory sitting in an Amazon warehouse they’re steps ahead because that’s where we’re finding a lot of the risk is that these Amazon sellers are not collecting in the states where there is inventory in the warehouse. So if the only risk that they have are the states where there was economic nexus past which the earliest the state goes back on any of that for all practical purposes we have a couple of outliers is June 21st which is the date of the decision 2018 with New York. We’ve got Massachusetts and Ohio that go back a little bit further because they have something just to add a little bit more confusion to it Joe that’s referred to as cookie nexus which is a digital present. So if you drop cookies which every Amazon seller is dropping cookies on their visitor’s websites—on their devices so that they can track them. That was deemed to be a physical presence in both Ohio and Massachusetts so they go back a little bit further. Let’s take those guys out.

Joe: Okay.

Diane: So if we’re saying today we’re selling our business we’ve been registered in all of my Amazon warehouse states and I’ve just got economic nexus going back almost a year. And if I haven’t been registered in those states then there is a risk although we think that it’s probably not a great risk if it is just the economic nexus. Okay? Average sales tax rate across the country is somewhere between 8 ½, 9% is the average rate. Of course, we’ve got some lower and we’ve got some higher. And so your risk is not 8 ½% of your profit but 8% of your gross sales. And so it’s 8 ½% of—let’s say 25% of your 4 million is in economic only nexus, 8 ½% of your million for the last year of sales.

Joe: And then you’ve got to further divide it up into—you’ve got to hit that economic nexus in those individual states. And with where you’ve got the physical nexus we’re going to count that money and see if we hit that average $100,000 threshold or 200 transactions. It’s very complex. Almost to the point where it makes me wonder if that state employee in the sales tax division making whatever they make really cares and is going to dig deep to try to find you that sold a widget after you’ve sold all the assets of your business. What is the process the state goes through to identify people that are selling products that didn’t collect sales taxes properly?

Diane: So just as probably most of the sellers listening to this podcast are using data analytics to figure out what should they price their products at, what is a hot product to sell, the states are starting to use data analytics and advanced methods to identify sellers. They’ve also used methods including subpoenaing; their subpoena power to go to Amazon and ask for the list of the sellers in their states. So we’ve seen I think about eight or nine states that have done that including New York and Connecticut and North Carolina, Wisconsin, California, Washington. So those are some of the states that have actually gotten that list of those sellers. And we know sellers have gotten those letters from those states saying we think you should be registered.

Joe: Okay, they can figure it out is essentially what we’re trying to say here. Let’s talk about the risk to the—you said the risk to the seller it’s still minimum if you’ve been collecting where you have physical nexus. So great that’s the minimum. Well, what about the person that buys the business? And I’m going to try to say this in simple terms and you tell me, correct me, or lead me back on the right path here.

Diane: Okay.

Joe: Let’s say I bought a business. I buy that business for three million dollars and it turns out that you; the seller didn’t collect and pay on all the economic nexus that you may have had during your ownership and a few states figure this out and they go after you; your corporation. They’re going to go after Diane’s brand LLC. First, they’re going to try to go after the state after you and if it’s an empty—well if the LLC is an empty shell if you ever pierce that LLC by running personal stuff with a business they can then go after you personally for that. And then if you can’t pay it on either of those things you’re going to go okay well the assets are still being sold, the brand is still out there. I wonder who bought it. Let’s go after them. Is that the right path and can they get all the way through to me if they first go after your LLC, can’t get money out of the LLC, it’s an empty shell or you closed it, okay fine they go after you because you pierced that corporate shell at one point, you’re bankrupt, you’ve got nothing. Can they go after me and if so what’s the real risk to me the buyer?

Diane: They can and to clarify just a couple of things. Even without doing anything to pierce the LLC all the states have provisions that allow them to go after the officers, the owners, or responsible parties whether the business has been closed down or not.

Joe: But everything else was I generally on the right path there in terms of the way it would work?

Diane: Correct. They can and there is also provisions that they have that are called successor liabilities. So that means that if they sell the business then they can go after the seller—I’m sorry after the buyer.

Joe: Let’s just put a point of clarification on that successor liability, you said sell the business. These are assets sales for the most part. They’re buying the assets of the business, not the entity itself. Does that successor liability carry through in that case?

Diane: It does.

Joe: Okay, are they going to go to that successor first or is that going to be the last resort?

Diane: It depends on the state and it also can depend on whether or not the rules were followed. Most of the states have something called a bulk sale notification requirement that applies on the sale of bulk assets. So this is not typically required on a stock deal but it is required on an asset deal. And so if you sell those assets there is a requirement that the state be put on notice that that is happening so that they can do a couple of different things. One they now know that this transaction is occurring. In some states, there might actually be a tax on the transaction itself. The second thing is that it gives the state the opportunity to give what’s called the tax clearance certificate. So if they’ve recently done an audit let’s say of the seller they can tell the buyer this is all clear. If there hasn’t been a sale made or if God forbid the company has not been registered in the state then they can provide information to the buyer in terms of an amount to put into escrow and withhold from the purchase price.

Joe: Again though I’m trying to just visualize how that heck the state is going to do this. I buy the assets of the business. It’s Diane’s brand. I go to the state of North Carolina to get a tax clearance certificate or—no that’s for the past is that right?

Diane: Correct.

Joe: So I want to start collecting sales taxes on my newly formed corporation for Diane’s brands.

Diane: Correct.

Joe: And I do that there’s going to—and I actually think I know the answer here. I was going to say how the heck is the state going to know that they were everest passed sales.

Diane: Right.

Joe: There’s a questionnaire that I have to answer that have there been past sales. A few things, I mean I’ve heard some people just say no or whatever, people in authority, people that are experts like you, I’ve seen attorneys on this bulk sale notification go yeah no we’re not doing that. Are these people just flat out wrong or is it—look the key thing here is risk. I think what I’m trying to help people understand and I need you to throw out numbers for me. I’m trying to understand the odds because that’s what these sellers and buyers are going to look at because you can’t change the past. You can’t change what you did four years ago in terms of sales tax collection. In some case, you don’t have to because economic nexus didn’t exist back then. But what are the odds of this carrying through in this scenario? Again I’m buying your brand. You’ve been around. You sold four million bucks in the last 12 months. And I know you can’t do this everybody calls labor the legend and I remember just after college I was at a temp agency trying to get a job and had to take a typing test.

Diane: Yes.

Joe: And I did it. And I was terrible. Terrible was like 82% accuracy at the time and the guy tells me it was. But I’m like what are you talking about. Like Larry Bird shot 66% from the free throw line and he was a legend. That actually got me the job nothing else; my expertise and anything else nothing. But Larry the Legend got me the odds, percentages; that’s what people want to know. So I’m buying it. How much—is this going to keep me up at night or is there like a five or 10% risk here that some of this may carry through?

Diane: So I think it depends on a couple of factors. So I hate to give you a fudged answer but here’s a couple.

Joe: I have to put you on the spot. We are recording.

Diane: Yeah. So here’s a couple of things that come into play. If the only nexus is economic I think the risk is fairly low. If you have been an FBA seller you’ve got inventory in the state and you haven’t been collecting. I think that risk is significantly higher because there is now ways that the states are getting that information.

Joe: Fairly low is 3% is that what you’re talking?

Diane: I would say transactions happening within the first year, we’re saying it’s probably—you know will the state come after somebody for economic less than 20% chance.

Joe: Okay but first I bought your brand; first I’m going to go after you. First, they’re going to go after your LLC then they’re going to go after you. If they can’t get money from either of those then they’re going to come after me. So is that 20% on me or is it 20% first to you and then you’re all saying—

Diane: I think it’s about 20% that they’re going to go and find that an economic seller did not register when they should have; an economic nexus seller.

Joe: And unless you’re bankrupt they’re going to take money from you first.

Diane: Correct.

Joe: And how do they get that money?

Diane: They will do an audit. So they will look at your books for reference and then they will calculate an assessment.

Joe: And if you can’t write them a check you’re going to work out a payment program.

Diane: Correct.

Joe: They are attorneys that can negotiate that down.

Diane: Correct.

Joe: All that still applies?

Diane: Yup that would still apply.

Joe: Okay, so economic nexus pretty low.

Diane: Correct.

Joe: Physical nexus fairly high but again even though their sell-through nexus—is that what you call it? There’s so many different nexus here. The physical first; they’re going to go after you first. The buyers here the concern should be fairly low unless the seller of the business is ultimately going to be filing for bankruptcy and there’s no money there, right?

Diane: Correct. And how you would get caught as you said when you’re filling out your registration application for your business because now you’re going to be compliant. One of the questions that is on there is did you buy this business from anybody else. And that’s on I think virtually every state application. And that’s how it would be identified. Now if you choose to leave that blank the applications are signed under penalty of perjury. Although I have never seen a state actually pursue perjury charges on somebody that answered the questionnaire incorrectly; I got to advise you that that’s what it says.

Joe: Sure. Okay, and we are 35 minutes in and generally we want to keep this short. Honestly, I feel like I could talk to you about this for another 35 minutes but I don’t dare because the listeners would just drop right off a cliff. So Sales Tax Institute, Yetter Tax, what resources; we talked about them at the beginning and I was writing down—I can’t even read my own notes, what resources are you making available on the length that we’re providing. You’re giving us a link on the QoP podcast so we know it’s there and you’re providing some specific resources for anybody listening. What are those?

Diane: Correct. So we’re going to make it easy for your listeners Joe. We’re going to give you a specific link, and we’re going to load all of these great resources that we talked about right there so it’ll be one place that your listeners can go to. And on there we’re going to give them the ability to download our white paper that talks all about these different kinds of nexuses and what you need to do. We’re going to give them the link to what we call our remote seller nexus chart which will include all the different types of nexus; click-through affiliate which is common ownership and agencies doing things on your behalf, the economic nexus, the marketplace nexus, and the one that we didn’t have time to get into which is the awful notice and reporting which is when you don’t collect tax. So that chart will be on there. We’re going to have a chart for the economic nexus which is all the states and the different thresholds by state, their actual effective dates, what dollars do you include in doing that threshold calculation. We’re going to give you a link to one of our greatest FAQs about what is nexus that has a little video about all of those nexus types explaining what they are. And then we also offer a service called our Wayfair Risk Analysis. We can take your data and go through and do the analysis to figure out what your risk is as well as where should you be right.

Joe: I love that. I hate that we’re at the end of the podcast for that part of it because a lot of people just want to have this done for them. So you can do a risk analysis as part of—

Diane: Absolutely.

Joe: And do they—is that through Yetter Tax or the Sales Tax; since it’d actually to be through the link but look people listen and then they type it in. So if they go to is it Yetter Tax would they be able to figure out that analysis?

Diane: The easiest thing to do is go to the and then click on the consultation button.

Joe: I got it.

Diane: Then you will see a link to our Wayfair Risk Analysis there.

Joe: Alright, Diane you know your stuff. You are a sales tax nerd. I see it. I’m not insulting you. I see that on your Twitter handle. Thank you for being such a nerd and understanding this and sharing the knowledge with everyone here. Ignorance is not bliss. Learn about sales taxes because if you don’t it’s going to come up and bite you somewhere unpleasant and that’s in your wallet. Thank you for your time, Diane. I greatly appreciate it.

Diane: Thank you, Joe. It’s been a pleasure.

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