Law360

California, the nation’s most populous state, would require out-of-state retailers with $500,000 of annual sales into the state to collect and remit sales and use tax, according to draft legislation circulated by the administration and obtained by Law360 on Thursday.

Authors: Mike Shaikh

The unofficial draft’s last line states that its stipulations “shall not have any retroactive effect.” The draft also sets up language that would require marketplaces such as Amazon.com and Etsy to collect and remit tax on behalf of the retailers selling on their sites. The marketplace language in the draft mirrors language in other states with marketplace laws by calling for the marketplaces to collect and remit tax if their vendors have a total of $10,000 of sales into the state.

Nothing concrete about how to handle remote sales has yet come out of California, which has four taxing agencies. The circulation of the unofficial draft follows an incident in June in the wake of South Dakota’s victory in South Dakota v. Wayfair, the U.S. Supreme Court ruling that struck down the physical presence test for collection and remittance of sales and use tax. In that incident, one of the agencies — the California Department of Tax and Fee Administration — accidentally released on its website guidance purporting to require out-of-state retailers to collect and remit sales and use tax by Aug. 1. The notice was quickly taken down.