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Bar Journal - December 1, 2000

Taxation of New Hampshire Businesses Involved in eCommerce

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Imagine a "mom and pop" maple syrup business by the side of the road. Now imagine junior convincing mom and pop to set up a Web site with secure credit card payment processing. Perhaps this particular example is a bit farfetched, but the underlying concept can be played out in any number of ways with the same result Ėvirtually overnight a business can go from being concerned about only New Hampshire and federal taxation to being embroiled in the ins and outs of sales and use tax, value added tax and foreign tax. Now imagine that you are their lawyer and they just asked you if they need to do anything new about taxes.

When eCommerce first began registering in the consciousness of the average New Hampshire business person many of the questions posed about taxation of eCommerce indicated a general sense that Congress had created some kind of unlimited tax holiday for Internet-based businesses. Clients were often disappointed to learn that the Internet was not a truly tax-free zone. Nowadays, even though most clients realize that the Internet is not a "tax haven," questions remain about how eCommerce is taxed.

Fortunately, some of the most fundamental questions about the taxation of eCommerce have ready answers because of the similarities between eCommerce businesses and other remote sellers, like mail-order businesses. Not all the questions have answers, however, because there are unique aspects of eCommerce, such as the sale of products in digital form, that have no obvious corollary in other business transactions. Until these matters are sorted out, eCommerce businesses and the tax professionals who serve them will simply have to cope with the uncertainties and monitor developments.

The purpose of this article is to provide a summary of eCommerce tax issues and how they apply to New Hampshire based businesses. For the sake of elucidating the general principles, the article focuses primarily on direct retail sales of goods over the Internet. Other circumstances, such as those involving sales of services and digital products, may raise further complexities not addressed here.

INTRODUCTION

In 1996 the US Treasury Department ("Treasury") issued an extensive white paper on the tax issues associated with electronic commerce or eCommerce. "Selected Tax Policy Implications of Global Electronic Commerce," Department of the Treasury, Office of Tax Policy, November, 1996 ("White Paper"). Treasury defines eCommerce as "the ability to perform transactions involving the exchange of goods or services between two or more parties using electronic tools and techniques." The two most common forms of eCommerce arise in the context of business-to-business or business-to-consumer transactions conducted over the Internet.

In its White Paper, Treasury refers to the long standing position of the United States supporting "neutrality" as a fundamental aspect of tax policy. According to Treasury, this policy should apply in determining how to tax eCommerce: "Neutrality requires that the tax system treat economically similar income equally, regardless of whether earned through electronic means or through more conventional channels of commerce." Id. Under this approach, Treasury would like to ensure that market forces alone determine the success or failure of new commercial methods.

In pursuit of this policy of neutrality (or in the view of some, despite it), Congress enacted the Internet Tax Freedom Act of 1998 ("Moratorium"), which deals primarily with state taxation of interstate commerce. Pursuant to this Act, states may not enact laws regarding the following types of taxes prior to October 20, 2001:

  • Taxes on Internet access (unless generally imposed and actually enforced prior to October 1, 1998);
  • Multiple taxes on eCommerce; and
  • Discriminatory taxes on eCommerce.

Under the first prong of the Moratorium, states may not tax charges for Internet access. Specifically, states may not impose tax on "a service that enables users to access content, information, electronic mail or other services over the Internet." The only way a state can impose tax on such charges is if the tax was authorized by statute prior to October 1, 1998 and (1) an Internet service provider had reasonable opportunity to know that the state interpreted such statute to include Internet service access fees, or (2) the state generally collected sales tax on such fees.

Under the second prong of the Moratorium, states may not impose multiple taxes on eCommerce. Specifically, the Act defines a multiple tax as "any tax that is imposed by one State . . . on the same or essentially the same electronic commerce that is also subject to another tax imposed by another State . . . without a credit . . . for taxes paid in other jurisdictions." While the language of the Moratorium is less than clear, it appears that Congress sought with this provision to prevent double taxation of eCommerce transactions.

Under the third prong of the Moratorium, states may not impose tax on eCommerce if the "sole ability to access a site on a remote sellerís out-of-state computer server is considered a factor in determining a remote sellerís tax collection obligation." So, for example, states may not compel out of state eCommerce businesses to collect tax on sales to their residents merely because the residents are able to access the sellerís Web site within the state. Note, however, that under principles of constitutional law developed by the United States Supreme Court in cases involving mail order businesses, see, e.g., Quill Corp v. North Dakota, 504 US 298 (1992), if an eCommerce business has other sufficient contacts with the state, the state could require the business to collect use tax.

While much of the early news coverage of the Moratorium touted the law as creating a general tax holiday for business conducted over the Internet, in large part, eCommerce is currently, and will likely continue to be, taxed in much the same way as mail order sales. The real impact of the Moratorium is to forestall what may well have been an undisciplined effort on the part of the states to expand their sales and use tax jurisdiction over out-of-state vendors on the basis of uncertainties surrounding the application of old rules to new technology. In the meantime, the old rules should still apply to situations that may involve eCommerce but also implicate settled areas of the law. For example, if a retailer in New Hampshire sells tangible goods both over the Internet and through physical retail outlets in other states, the states where the physical retail outlets are located would have sufficient jurisdiction to require the New Hampshire retailer to collect use tax on all of its sales to purchasers who are residents of those states.

With the Moratorium in place, analysis of eCommerce issues has continued apace at many levels. Two of the most significant forums for continuing discussions have been the nineteen member Advisory Commission on Electronic Commerce created under the Moratorium and the National Governors Association ("NGA").

The Advisory Commission consists of eight members from industry, eight members from state and local government and three members from the Executive Branch of the federal government (Treasury, Department of Commerce and the United States Trade Representative). The Advisory Commission published its recommendations in April of 2000. The Advisory Commission was unable to reach a consensus (the Act required a two-thirds majority for consensus) with respect to any of the core issues it considered. Nevertheless many observers considered the Advisory Commission to have accomplished its mission by publishing a report containing majority and minority positions on the core issues, including extension of the Moratorium on sales and use tax, sales and use tax simplification, nexus safe harbors, taxes imposed on Internet access, taxation of telecommunication services, and international taxes and tariffs.

The NGA has been very active and due to a greater uniformity of views among members has produced a stronger product than the Advisory Commission. The key issue for the governors has not been taxation of digital commerce (e.g., the sale of software electronically), but the sale of tangible goods ordered over the Internet. The NGA supports legislation that calls for one sales and use tax rate per state, uniform definitions, de minimis rules to protect small eCommerce businesses and imposition on remote sellers of an expanded duty to collect sales and use tax.

Congress has not been idle either. On October 26, 1999 the House voted 423 to 1 creating a nonbinding resolution aimed at banning Internet taxes on a worldwide basis, called the Global Internet Tax Freedom Act. H. Con. Res. 190. The Resolution urges "the United States to seek a global consensus supporting a moratorium on tariffs and on special, multiple, and discriminatory taxation of electronic commerce." Id. In addition, several legislative initiatives reflecting the various majority and minority positions set forth in the Advisory Commission report have been proposed, including the Internet Nondiscrimination Act, the New Economy Tax Simplification Act (co-sponsored by Sen. Judd Greg), the Internet Tax Reform and Reduction Act, and the Internet Tax Simplification Act.

TAXES THAT APPLY TO ECOMMERCE

The fact that the current debate on taxation of eCommerce focuses so heavily on the future tends to obscure the present reality of eCommerce taxation and the fact that there are a host of rules that already apply. In general, federal, state and foreign income taxes as well as the primary indirect taxes (i.e., value added tax ("VAT") outside the US and sales and use taxes in the United States) already apply to eCommerce transactions. While there is no question that eCommerce transactions are subject to income tax, current jurisdictional concepts (both multistate and international) and definitions used to classify income can lead to uncertainty regarding to whom the tax is owed and what rate of tax applies. Sales and use tax applies to eCommerce in much the same way it applies to mail order businesses and, therefore, sales of tangible products purchased over the Internet may be subject to use tax. For United States businesses, VAT liability may well turn out to be one of the more troublesome aspects of eCommerce taxation, at least in the near-term, because it is so unfamiliar to most US business people and their tax advisors, it varies from country to country, and governments in Europe and Asia impose VAT on virtually all eCommerce transactions.

Federal income taxation. In general, federal income tax applies to eCommerce and other traditional types of commerce in the same way. An eCommerce businessís tax liability may differ, however, based on whether a particular transaction is classified as a sale or a royalty or in some cases as the provision of services.

For domestic transactions, the IRS is likely to classify many eCommerce transactions based on principles underlying Treasury Regulation Section 1.861-18, which governs sales and licenses of software. Under these Regulations, the purchase of "shrink-wrap" software is treated as a sale, unless the purchaser has the right to copy and distribute such software to the public, in which case the transaction will be treated as a royalty. The difference in federal income tax liability arising from these two classifications can be significant because the revenue subject to tax on a sale is reduced by the cost of goods sold. It is likely, though not certain, that this approach will be extended to purchases of "digitized" multimedia and information services.

For international transactions, under many US Income Tax Treaties, treaty benefits turn on income classification. Currently, the classification of certain types of income arising from eCommerce transactions is unclear and thus, the availability of treaty benefits for eCommerce businesses is also unclear. For example, should income arising from transactions in digital information, such as computer programs, books, music, or images be characterized as royalties or sales of goods? If this type of income is treated as a sale, then the profits earned from such sale would only be subject to tax in the home country unless the seller had a taxable presence in the host country. On the other hand, income from royalties is typically subject to withholding tax only in the country where the licensed property is used. In other cases, eCommerce transactions may be classified as services with another set of rules determining which country has the primary jurisdiction to tax.

State income taxation. Generally, a taxpayer must have sufficient nexus (i.e., ties and contacts) with a state for the state to impose income tax on the taxpayer. Historically, the issue of whether the requisite nexus exists has turned on whether the taxpayer has a physical presence within the state either through employees or other types of agents, including in some cases independent contractors. For purposes of sales and use tax, there is a US Supreme Court precedent establishing the need for a physical presence as a basis for jurisdiction. Quill Corp., supra. For purposes of income tax, while there is no such precedent, there is federal legislation (P.L. 86-272) that provides a safe harbor for companies whose physical presence in a state consists solely of employees or agents soliciting sales or tangible personal property.

In light of the lack of precedent for a physical presence test and the limitation of P.L. 86-272 to tangible personal property, states have been developing more expansive theories of jurisdiction in the income tax area, including intangible property presence and economic presence. Jurisdiction based on intangible property presence has been used where an out-of-state companyís only contact with the taxing state is that the company licenses a trademark used in the taxing state (e.g. use of trademark in state, Geoffrey, Inc. v. South Carolina Tax Commission, 313 SC 15, 437 S.E.2d 13 (S.C. 1993), cert. denied, 510 US 992 (1993)). Jurisdiction based on economic presence has been asserted where the level of in-state customers or sales is indicative of commercial exploitation of customers through purposeful activities directed toward the market state. To date, the economic presence test has been applied primarily to financial institutions. The attempt to extend these principles to eCommerce businesses is virtually certain as eCommerce continues to grow and affect a greater proportion of the statesí tax bases.

Foreign income taxation. Jurisdiction to tax eCommerce is a particularly troublesome issue in the international tax context. In particular, the location of a server in a foreign country may create a permanent establishment in that country, i.e., a taxable presence sufficient to subject the owner of the server to income tax in that country.

Permanent establishment has been a cornerstone of the international income tax treaty network for decades. Under most treaties, a business has a permanent establishment, and thus a taxable presence, in a host country only if the business has a certain level of physical presence such as a fixed place of business in the host country. Under many international income tax treaties, a fixed place of business is evidenced by an office, factory, or shop established by a foreign company in the host country or a local person acting as a dependent agent on behalf of a foreign company in the host country. Generally, mere display, storage, purchasing, delivery, or advertising does not give rise to a permanent establishment. Additionally, "similar activities that have a preparatory or auxiliary character" also do not constitute a permanent establishment.

While the permanent establishment concept is generally embraced by the developed nations, many developing countries do not share this view. Instead, these countries typically regard the host country (the source from which payments are made to the home country business) as having primary taxing jurisdiction over such payments. Thus, many of these countries impose high withholding taxes on payments made by their residents for the purchase/license of intangibles, information, etc.

In general, most countries that recognize the permanent establishment concept require foreign companies with a permanent establishment in their country to do the following:

  • Pay taxes on host country (and in some circumstances non host country) source income;
  • File tax returns on such income;
  • Register with the appropriate host country authorities to do business; and, in some instances,
  • Prepare transfer pricing documentation for transactions between the home office and host country permanent establishment.

For eCommerce purposes, server location is emerging as a critical international tax issue primarily because of the possibility that the location of a server in a particular country may create a permanent establishment in that country. As a result, much attention has been focused on what types of server arrangements will create a permanent establishment. For example, will a company have a permanent establishment only if it owns its own server in a host country or will a company that contracts with an Internet service provider in the host country also have a permanent establishment? While a knee-jerk reaction in this arena might be that a company wants to avoid creating a permanent establishment, in fact, that will not always be the case. A company seeking to establish itself in a country with low or no tax (a "low/no tax jurisdiction") will want the threshold for permanent establishment based on server location to be low. In this regard, the OECD (the Organization for Economic Cooperation and Development) recently issued a report stating that a server that actually performs transactions (as opposed to one that simply provides information) should create a permanent establishment (analogous to the permanent establishment rules for vending machines).

Much attention in this area has focused on the tax effect of locating servers in low/no tax jurisdictions. While moving an eCommerce business to a low/no tax jurisdiction may appear to have great appeal, significant obstacles may exist. First, at least for now, many low/no tax jurisdictions, especially those in the Caribbean, either do not have the infrastructure to support eCommerce businesses or cannot offer the requisite services at competitive prices. Second, high tax jurisdictions, such as the US, are likely to aggressively review the transfer pricing charges among related entities that would likely be involved in such a move. Third, many low/no tax jurisdictions do not have tax treaties with other nations, with the result that if the host country imposes a withholding tax on payments going out of the country (e.g. on dividends, interest or royalty payments), the rates could be very high.

The mere existence of Web site access to residents of foreign countries (as opposed to server location) is unlikely to create a permanent establishment in most developed countries. In countries that do not recognize generally accepted international tax concepts such as the permanent establishment principles, however, a Web site allowing residents of such countries to purchase and arrange for delivery of their purchases might be treated as a taxable presence. Thus, such companies may be taxed as if they had an actual physical presence in the country asserting tax jurisdiction over them.

Sales and use tax. For a state to require a business to collect tax on sales made to its residents, the business must have sufficient nexus (i.e., ties and contacts) with that state. Generally, nexus exists when the nature of the entityís contact with the state consists of the continuous physical presence of an employee within that state. A finding that a taxpayer has a continuous presence within a state may also stem from the actions of nonemployees such as independent contractors or dependent agents; however, additional contacts may be required to establish nexus in such instances.

When a resident makes a purchase on which the seller is not required to collect the requisite sales tax, the resident is required to self assess use tax. In the business-to-business context, states typically closely monitor business purchases to ensure compliance; however, individual compliance is not so closely scrutinized. Due to the potential decrease in sales and use tax revenues, many state revenue authorities would like to impose a collection obligation on eCommerce vendors. Under the Moratorium the ability of a state resident to gain access to a Web site cannot, on its own, create a nexus between the vendor who operates the Web site and the state. Principles applied to mail-order businesses, however, apply to Internet sales.

The basic principal underlying sales and use taxation, as established by the US Supreme Court in Quill Corp., supra, is that a state does not have jurisdiction over an out-of-state vendor that does not have substantial physical contacts with the state. Without jurisdiction over such vendor, the state cannot require it to collect the use tax that is due as a result of the stateís residents using a product sold by the vendor through the mail. The physical presence test can be satisfied by the vendorís providing ancillary services in a state (e.g., product repairs) or the existence of a physical retail outlet owned by the vendor.

States have tried to expand the reach of their sales and use tax jurisdiction by applying other theories, including (1) nexus based on the in-state activities of an in-state agent representing the interests of its out-of-state principal (attributional nexus), and (2) nexus based on the activities of a parent or subsidiary of a company that itself has no physical presence in the state (affiliation nexus). These theories may prove especially problematic in the eCommerce context. For example, states are likely to try to apply attributional nexus to such Internet activities as Web Auctions and the myriad of agreements that eCommerce businesses enter into involving links on Web sites operated by in-state vendors that bring business to the out-of-state vendorsí Web sites. Affiliation nexus could apply to an eCommerce business that was created as a subsidiary of a company that already had substantial physical presence in other states, especially where the parent provided certain activities for the subsidiary so that both attributional and affiliation nexus could apply.

Value Added Tax. Many countries (107 as of the beginning of 2000) impose VAT on purchases by their citizens. Operationally, a VAT is somewhat like a sales tax, although it applies to both goods and services and is applied at each level of trade (not just retail sales) with a recovery of amounts paid at earlier stages in the economic process. For example VAT would apply to a sale of timber to a pulp factory, the sale of the pulp to a paper factory, the sale of the paper to a wholesaler, the wholesalerís sale to a retailer, and the retailerís sale to the final consumer. At each stage there is an input tax (the amount a business pays on its purchases) and an output tax (the amount a business charges its customers). So in the example above, the pulp factory would pay an input VAT on its purchase from the timber seller and collect an output VAT on its sale of the timber to the paper factory. Generally, value is added at each stage of the economic process so the input tax is less than the output tax.

The seller either collects the VAT on the sale or the purchaser self assesses. In the business to business context, businesses are required to self assess. Due to high levels of government scrutiny, compliance with the self assessment provisions is quite good. Generally, individuals are not required to self assess. To the extent a stateís residents make purchases from foreign companies not required to collect VAT (and thus are required to self assess), compliance is essentially non existent.

Liability to account for VAT is typically influenced by the physical location of the goods, the residence of the seller or the buyer and the nature of the goods or services being transferred. VAT tax rates vary from as little as 2% in one country to as much as 25% in another country, with the rates in the majority of countries falling between 15% and 20%.

A Web site that allows for electronic purchasing can attract sales from any country in the world unless electronic or manual efforts are made to limit sales to the US or specified foreign countries. Without such limitations, eCommerce enterprises can easily find themselves entangled in the maze of VAT compliance without proper preparation.

ENFORCEMENT AND TAX COMPLIANCE

Perhaps the most amazing, but at the same time insidious, aspect of eCommerce is how it can effortlessly catapult a local or regional business into the national and international marketplace literally overnight. For example, a local maple syrup business that creates a Web site with secure credit card payment processing can be making sales only to New Hampshire residents one day and have customers from all over the world the next. Many business people are not aware of the maze of state and international tax issues to which eCommerce can subject them. The potential for extensive noncompliance borne of widespread ignorance of the law has most state and foreign governments concerned over enforcement of their tax laws and erosion of their tax bases.

Enforcing tax laws in connection with eCommerce businesses is currently a top priority for most state and foreign governments, not only because of the current level of ignorance of the law and the resulting lack of compliance, but also because of the unique opportunities for evasion afforded by eCommerce. Many believe that one of the most significant compliance issues presented by eCommerce is the extent to which electronic transactions create the potential for anonymous, untraceable and, therefore, potentially tax-free transactions. However, some countries are simply surfing the Internet to locate potential tax avoiders and then contacting them for follow-up.

Most state taxing authorities are concerned over the potential loss of sales and use tax revenue (and to a lesser extent income tax revenue) as a result of eCommerce transactions. The primary battleground involves the ability of a state to require remote sellers to collect use tax on items sold to residents of that state. The Moratorium currently limits what the states can do in this regard. Nevertheless, both federal and state efforts are heavily focused on the battle between tax freedom for Internet transactions and loss of tax revenues through migration of sales from traditional-venue businesses to eCommerce businesses Ė from sales by main-street retailers (clearly subject to income and sales and use tax) to sales over the Internet where they may escape state taxation entirely under the current state of the law for remote sellers.

In the international context, the primary tool that countries have for enforcing their tax rules on foreign eCommerce businesses is the customs system. When a sale occurs accompanied by the delivery of physical goods, the goods are subject to the customs department of the purchaserís country of residence. Thus, unless a purchaser smuggles goods into the country, some amount of customs duty will likely be collected and transactional information will be generated. This is not currently true for goods delivered by electronic transmission via the Internet. Accordingly, countries are concerned about customs duty avoidance on transactions involving digital goods.

APPLYING THE CONCEPTS TO NEW HAMPSHIRE BUSINESSES

To understand how these concepts apply in practice, consider a hypothetical New Hampshire company with both domestic and foreign sales made over the Internet. The type of sale (digital or traditional products), server location, and the provision of ancillary services will be important factors to consider.

Tax consequences arising from US Sales:

Federal Income Taxation. In general, income taxation for Internet-based sales of digital and traditional services and products will be the same as for sales through traditional means. The classification of sales of software or products embedded in the digital medium will determine royalty or sale treatment.

State Income Taxation. The Moratorium prohibits double taxation and taxing access to the Internet. Taxing income from sales of products and services over the Internet does not constitute taxing access to the Internet, so the New Hampshire Business Profits Tax will apply to such income. Income taxation in other states will depend on the eCommerce businessís nexus with these states. For example, nexus could arise if a New Hampshire company sends employees into other states to install or repair products it sells over the Internet. More difficult issues of nexus may arise as states expand their use of the intangible property presence and economic presence tests.

State Sales and Use Taxation. New Hampshire does not have a general sales and use tax, but it does have certain narrowly defined sales taxes, such as the Rooms and Meals tax. This tax cannot be avoided simply by closing the initial transaction over the Internet, so a hotel reservation made (and perhaps even paid for) over the Internet does not exempt the transaction from the Rooms and Meals tax. Even though New Hampshire does not have a general sales and use tax, New Hampshire retailers may be required to collect use tax on behalf of other states. This will be the case if a New Hampshire retailer has enough contacts with states in which the retailer makes sales. For example, as with state income tax, nexus could arise if the New Hampshire company sends employees into such states to install or repair products it sells over the Internet. More difficult issues of nexus may arise as states expand their use of attributional and affiliation nexus.

Tax Consequences arising from Foreign Sales:

Foreign Income Taxation. Any New Hampshire company conducting business on the Internet can have foreign sales. As long as those sales do not involve a permanent establishment in a foreign country, however, there should be no foreign income tax liability. The typical New Hampshire eCommerce business that does no more than sell its products into a foreign country using common carriers for delivery is unlikely to be subject to foreign income tax unless it locates a server in that country or is dealing with a less developed country. For countries that have a tax treaty with the US, the mere ability of a resident of that country to access a New Hampshire companyís Web site should not alone create a permanent establishment. For non-treaty countries, however, Web site access may be enough to create a taxable presence. If a New Hampshire company locates its server in a foreign country, even a treaty country, the foreign country may treat the presence of the server as a permanent establishment.

Value Added Tax. In general, New Hampshire eCommerce businesses will encounter the VAT in the context of importing goods into a VAT jurisdiction. In such cases VAT is generally charged and payable when goods are imported and is usually levied by the tax authority at the port. When goods are imported into the European Union ("EU"), import VAT applies only once, at the initial port of entry, and not every time the goods cross a border as they move on to their ultimate destination within the EU. For the typical New Hampshire eCommerce retailer most transactions involving VAT jurisdictions will be to customers in that jurisdiction who will be responsible for the import VAT. If instead of selling directly to a foreign consumer, however, a New Hampshire eCommerce retailer were to import a shipping container of goods into a VAT country to be sold to customers at a later date, the business would have to pay the import VAT. After VAT registering, however, the business would be able to recover the import VAT when it filed its VAT return and charged VAT on its supply of the goods to customers. Even though the VAT tax may in many cases not be an economic issue for New Hampshire eCommerce businesses, because VAT rules vary from country to country it would not be prudent to proceed without first contacting an appropriate VAT professional or the local revenue authorities.

CONCLUSION

For the most part, the core issues regarding the taxation of eCommerce are resolved by looking to the principles underlying the taxation of remote sellers. To the extent those issues are unresolved the taxation of eCommerce is also unresolved. Other broader issues may also change as international tax authorities modify their tax regimes to accommodate unique aspects of eCommerce transactions. For example, as eCommerce businesses are increasingly able to move their physical equipment from high tax to low/no tax jurisdictions, the high tax jurisdictions may alter their interpretations of the permanent establishment rules to preserve their tax bases. In fact, if eCommerce businesses begin to use satellite based equipment, the physical equipment part of the permanent establishment concept could become meaningless in the eCommerce context. Therefore, even though eCommerce transactions are currently subject to a reasonably stable base of tax principles, the future is uncertain and proper compliance with tax laws will require vigilance.

The Author

Attorney Peter T. Beach is a partner with the firm of Sheehan Phinney Bass + Green, P.A., Manchester, New Hampshire.

 

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