Maryland is now the most recent state to issue a Tax Alert regarding South Dakota V Wayfair, and it’s the vaguest guidance issued to date by any state. Although Maryland did consider both affiliate and click-through nexus statutes in the past, before Wayfair, Maryland was a physical presence state. In the Tax Alert issued this week by Maryland, two key comments were issued:
- “Pursuant to Maryland law, the Comptroller’s Office shall impose sales tax collection requirements as broadly as is permitted under the United States Constitution.”
- “If you sell or deliver tangible personal property or a taxable service for use in Maryland, you should review and analyze the United States Supreme Court’s decision in South Dakota v. Wayfair, Inc. to identify how it affects you.”
The first statement implies that Maryland now has the authority permitted under the United States Constitution to collect sales tax from remote sellers. This conclusion is reasonable and follows many other state rulings.
However, the second statement has left taxpayers in a lurch. They are now putting the responsibility of deciding if and when to collect sales tax on the remote seller. Maryland also states that they have “not signed the Streamlined Sales Tax Agreement and is not a participating state.” What is the purpose of this statement? Is Maryland hinting to taxpayers that they have not yet met the three-part test laid out by South Dakota v. Wayfair?
Maryland did state that additional guidance will be issued in the future, so stay tuned. For now, we do not believe this Tax Alert establishes an enforcement date, but if you are a large remote seller into Maryland, consider yourself on ALERT!