Proving that everything is bigger in Texas, the state’s Comptroller is now assessing marketplace providers on 130% of their sales. It seems a sales tax on 100% was not big enough for tax officials in the Lone Star State. The additional 30% is a tax on the portion of the product sales price kept by marketplace providers. Talk about double dipping…

Like all states following the Wayfair decision, Texas adopted a marketplace law in 2019 that required marketplace providers to charge tax on 100% of the sales price for products sold over the platform by third-party sellers. Apparently unsatisfied, the Texas Comptroller has decided to assess tax on 130% of marketplace sales, with the additional 30% a double tax on the portion of the sales proceeds paid to the marketplace provider as a commission.

In most marketplaces, the provider charges a commission for allowing a third-party seller to use the platform and its services, like advertising and access to the platform’s user base. As most commissions are typically in the 30% range, Texas is demanding that marketplace providers pay tax on 130% of the sales price and charge the consumer for tax on the 100% and the seller for the 30%.

Without notifying the public, Texas is asserting, on audit, that these commissions are taxable. This position is contrary to a long-standing administrative ruling that was issued in 2012 and quietly revoked by the Texas Comptroller in 2020.

A quick example illustrates how aggressive this position is and the negative impact it will have on marketplace sellers in Texas: Take a book collector in Austin who is selling used books through a marketplace provider and sells a $100 rare Bible to a customer in Dallas. Historically, the marketplace provider would charge an 8% sales tax on the $100 Bible and send that $8 to the Texas Comptroller.[1] The marketplace provider would then take its $30 commission and send the balance of $70 to the local bookseller.

Now, the Texas Comptroller is telling the marketplace provider, on audit, that the $30 commission it received is separately subject to the sales tax. The marketplace provider in the example should have collected an additional $2.40 in sales tax on its receipt of the commission, resulting in an effective sales tax rate on the transaction of 10.4% (again, with no legislative authority or change behind this view). Instead of getting $70 in revenue, the bookseller will only receive the net after sales tax, or $67.60.[2] While this reduction may not seem like much, it will be the difference between being profitable and losing money for some Texas-based sellers. For the Texas Comptroller to make this policy change without legislative blessing—and while the state is enjoying a record budget surplus—should raise alarm bells.

How does the Texas Comptroller get there? First, it deems the commission payment a transaction separate and distinct from the underlying sale of the Bible in the above example. Second, it looks at the services the marketplace provider offered [...]

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