Nevada’s New Commerce Tax

Last year the state of Nevada enacted a new annual Commerce Tax on business entities having gross income sourced to Nevada in excess of $4 million.  The effective date is July 1, 2015.  The amount of the Commerce Tax is the applicable tax rate multiplied by the amount of Nevada-sourced gross revenue in excess of $4 million.  The tax rate depends upon the North American Industry Classification System (NAICS) code of the business.  For a business having more than one industry, the NAICS code selected should be the industry producing the greater amount of Nevada-sourced gross income.  For example, construction (NAICS 23) bears a 0.083% tax rate while real estate rental and leasing (NAICS 53) bears a 0.250% rate.  Proposed regulations would allow a three-year averaging of gross receipts to make this determination.  Gross receipts from services are also subject to the tax.  Importantly, the initial tax report establishes the business tax rate category and a taxpayer cannot change that designation in the future without applying for a determination from the Nevada Department of Revenue.

Business entities include all forms of entities and include individuals filing Schedules C, E, or F as part of their Form 1040.  Entities excluded from the tax include:  tax-exempt entities under Section 501(c)(3), grantor trusts of which all grantors and beneficiaries are natural persons or charitable entities, estates of a natural person, and passive entities.  A passive entity is a partnership, limited liability company, or a trust that derives at least 90% of its gross income from dividends, interest, capital gains, royalties, etc. and that does not receive more than 10% of its gross income from conducting an active trade or business.

Businesses subject to the tax are required to use a July 1 through June 30 fiscal year regardless of their normal tax or accounting year.  The due date is the 45^th day following the fiscal year and no automatic extension is available, although a request of a 30-day extension for good cause may be requested.  The initial tax return and tax payment for the period of July 1, 2015 through June 30, 2016 is due August 15, 2016.  In the case where your tax return is selected for audit, Nevada law requires out-of-state businesses to pay the travel expenses of the Nevada state auditors who come to examine the books and records.

Businesses paying the Commerce Tax may be entitled to a credit against their Modified Business Tax (MBT) liability equal to 50% of their Commerce Tax beginning with the first quarter ending after the date the Commerce Tax is paid.  The credit is only available for the Commerce Tax fiscal year during which the tax is paid.  For example:  Company A pays $5,000 in Commerce Tax on August 15, 2016.  Company A may claim a $2,500 credit on its October 31, 2016 MBT tax return and carryover any unused credit against the MBT liability through June 30, 2017.  The MBT is an excise tax that employers pay on their employee wages.

The Commerce Tax is not a sales tax that can be collected from customers.  However, proposed regulations permit a “Commerce Tax Recovery Charge.”  If the business itemizes a Commerce Tax recovery charge among the other charges shown on a customer’s invoice or receipt, and makes a written statement that the charge is the “cost of compliance with the tax imposed upon it pursuant to section 20 of SB 483.”  If it is clear from the invoice that the recovery charge is part of the total price collected from the customer and that it is not an additional charge assessed on the customer’s total, then the business may pass along the tax to its customer if it chooses to do so.  The recovery charge may be necessary for low-margin businesses to maintain their profitability.

Update 6-7-2016

The Nevada Department of Taxation is requiring the filing of the Commerce Tax return even of businesses having gross receipts of $4 million or less and therefore not subject to tax. The filing is necessary to "declare" under penalties of perjury that the gross receipts did not exceed this amount.

For Whom Should Form 1099-MISC, Nonemployee Compensation, Be Prepared?

This post concerns only payments made in the course of your trade or business to independent contractors that are reported in box 7 of Form 1099-MISC as “nonemployee compensation.”  The IRS began asking questions about taxpayers’ compliance with preparing Forms 1099 with the 2011 income tax returns.  The purpose behind Form 1099 reporting is to close the “tax gap” by catching people who don’t pay income tax on all of their earnings.  Since tax returns are signed under penalties of perjury, answering this question accurately is important.  Congress has also dramatically increased the financial penalties for not filing Forms 1099 on time.  In general, the 2015 Form 1099-MISC should be provided to the recipient by February 1, 2016 and filed with the IRS by February 29, 2016 if filed on paper, or by March 31, 2016 if electronically filed.  Electronic filing is required if 250 or more forms will be filed.

Nonemployee compensation are payments made to independent contractors who are not organized as corporations.  This includes partnerships, limited liability companies not treated as corporations, and individual sole proprietors.  However, under a special rule, payments made to attorneys and law firms organized as corporations must still be reported.  Form 1099-MISC is required if total payments for services (including parts and materials) made to a recipient during calendar year 2015 amounted to $600 or more.  Payments for merchandise is not reportable.

How do you know whether a company is a corporation?  You must have the company complete Form W-9, Request for Taxpayer Identification Number and Certification.  The company indicates their entity classification on that form.  You should have a Form W-9 on file for everyone to whom you make payments.  If you are unsure of the business’ entity classification because there is no W-9 on file and you are running out of time to meet the Form 1099 filing due date, complete the Form 1099 anyway to avoid a potential penalty and get the W-9 completed in advance of the next payment you make to the company.  There is no harm or penalty for sending an unneeded Form 1099 to a corporation.