bob..."physical presence"
that is the question....in many states, "physical presence" does not necessarily equate to being registered as a "foreign corporation", or having a physical address, but can infer if service/sales work is being performed, regardless of where service is dispatched. not sure how dell services their large corporate clients.
in the state of washington, particularly the local authorities (bremerton) around the puget sound naval shipyard , deems a "physical presence", a salesman visiting the sight.
i will quote directly from the "city of bremerton tax & license division": q & a letter dated 4/5/99
"i'm a manufacturer's rep and make no direct sales. does this apply to me?
...yes, visitations require licensing because you're maintaining your market area by calling on end users of your product"
"i only call on the area once or twice a year. sales are ordinarily handled over the phone.....do i need a license?"
....yes. a license is required. there is no exemption for infrequent visitations."
local authorities are enforcing more rigidly, especially in areas where large government or government subcontractors exist.
believe the case law cited was more in line with mail order...not sure if this applies to dell, who i'm sure sends sales people out to major accounts.
the collection burden will fall on the vendor, if "physical presence" is determined. in fact, the local authority can mandate a "business license" for out of state entities to assure that sales/use tax and even business privilege tax are collected and remitted by the seller.
this is from experience of selling into various tax jurisdictions, without a physical presence...sometimes there is double,even triple taxation...disguised as "privilege", "sales", gross receipts" etc....still the same...not fair, but all part of doing business in our great country!
hope this clears up my statement...
good luck...ed a. |
