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 45th 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.
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.
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