In late January 2018, Amazon notified its third party marketplace sellers with inventory in Massachusetts that the company planned to turn over information regarding them to the Massachusetts Department of Revenue. Amazon informed the vendors that the information, to be disclosed by January 26, 2018, would include name, address, phone number, federal tax ID number, and an estimated value of the vendor’s inventory stored in Amazon warehouses located in Massachusetts based on the seller’s prices in late 2016 and 2017. Amazon has had one fulfillment center in Massachusetts, in Fall River, since fall of 2016.
In most states, including Massachusetts, Amazon collects sales tax on products it sells directly, but not on products sold by third parties on its online marketplace. Amazon initially resisted the Massachusetts Department of Revenue’s request for third party seller information. In 2017, the Massachusetts Department of Revenue sued the company in state court to obtain information about any third party vendors that store property in Amazon fulfillment centers located in Massachusetts. In September, the court ordered Amazon to produce the information. The company told vendors that it has only agreed to comply with the request after receiving a “valid and binding legal demand” from the Massachusetts Department of Revenue.
Massachusetts intends to use this information to determine if any marketplace sellers have failed to collect and pay sales tax, although it could also be used to determine liability for other taxes. Massachusetts has simultaneously been stepping up its ability to collect sales tax in connection with online sales, finalizing a new regulation last year to expand the reach of its sales tax. In particular, sellers that have $500,000 or more in annual sales from 100 or more orders bound for Massachusetts are now subject to sales tax if they use of in-state apps and “cookies,” in-state servers/hardware, or in-state services, such as payment processing and order fulfillment under Regulation 830 CMR 64H.1.7 even if they have no other inventory or operations within the state. Although this regulation is already being challenged in Virginia state court, in November 2017, Massachusetts, along with 34 other states, also signed onto an amicus brief filed with the U.S. Supreme Court supporting the state of South Dakota’s efforts to defend a somewhat similar but even more aggressive sales tax law. The U.S. Supreme Court will hear that case, South Dakota v. Wayfair, Inc., later this year.