South Carolina Will Follow South Dakota Minimum Sales/Transactions Levels to Require Collection of Tax

South Carolina has joined the growing list of states that have announced they plan to begin requiring out of state sellers to collect and remit sales taxes following the Supreme Court’s decision in the case of South Dakota v. Wayfair. In a July 9 letter to members of the General Assembly, the South Carolina Department of Revenue Director Hartley Powell indicated South Carolina was moving forward to force out of state vendors to collect and remit the sales taxes imposed by the state.

The letter noted that while the state has had law on the books that required such collection and payment, the state had not moved forward on enforcement of the law:

S.C. Code § 12-36-70 has long authorized the imposition of sales and use tax on all retailers, including remote retailers with no physical presence; however, South Carolina has not enforced this statute because of the constitutional nexus restrictions under Quill. Since the United States Supreme Court has reversed its longstanding position and eliminated the physical presence requirement, South Carolina may now collect sales and use tax from remote retailers (including online retailers) without physical presence. As a result, the General Assembly does not need to enact new legislation to collect sales and use tax from remote retailers since S.C, Code § 12-36-70 permits such collections.

The letter notes that South Carolina will draft rules that will use the South Dakota trigger levels for the requirement to collect and remit taxes:

The Department is currently drafting guidance for remote retailers with no physical presence in South Carolina regarding registration, collecting, filing and remitting sales and use tax on a prospective basis. This guidance will be finalized in the upcoming weeks, applying the principles in Wayfair's ruling that remote retailers who (1) deliver more than $100,000 of goods or services, or (2) engage in 200 or more separate transactions for the delivery of goods and services annually have substantial nexus for sales tax purposes.

South Carolina is not currently a member of the Streamlined Sales and Use Tax Agreement[1] and no mention was made in the letter about providing access to free software to be used in complying with this filing requirement.  Those were both provisions of South Dakota’s law that Justice Kennedy commented favorably on in the majority opinion in Wayfair.