RD191 - Incentive and Penalty Options to Encourage the Correct Allocation of the Local Retail Sales and Use Tax


Executive Summary:
Item 270(K) of House Bill 1600, the Appropriations Act for the 2008-10 Biennium (2009 Acts of Assembly, Chapter 781) requires the Virginia Department of Taxation (“TAX”) to provide a report to the Senate Finance and House Appropriations Committees outlining potential incentives for taxpayers who accurately report the local Retail Sales and Use Tax by locality, as well as penalties for those who err in reporting the tax. The Appropriations Act mandates that this report be completed by September 1, 2009.

In addition to requiring this report, Item 270(K) mandates that TAX: 1) secure and utilize software based on Global Positioning System (“GPS”) data in order to properly allocate the local Retail Sales and Use Tax; 2) modify remittance forms to require that each in-state vendor filing a consolidated return report the number of places of business that he maintains in each locality; and 3) provide localities with increased computer systems access to information-only data in order to facilitate local input in error identification. In addition to discussing incentives to encourage accurate reporting of local sales tax, this report provides a status on these mandates.

Inaccurate reporting of the local Retail Sales and Use Tax by businesses has been a longstanding problem for Virginia localities since the inception of the tax in 1966. When a business erroneously assigns the local Retail Sales and Use Tax from a transaction to the wrong locality, the locality entitled to the revenue will experience a loss of revenue. Even if the error is discovered before the statute of limitations to correct the error has expired, allowing TAX to resolve the issue through a transfer, the locality to which the revenue was initially allocated may experience a hardship because it may have already budgeted or spent the funds for local needs.

Although the impact of this problem varies widely across the Commonwealth, it has been a particular source of consternation for only a handful of localities. The problem is more acute in counties adjacent to cities where areas of the counties have a mailing address incorporating the name of the city. One example often cited is Henrico County. In 2009, Henrico County was able to have the United States Postal Service rename sixteen ZIP codes with a “Richmond, Virginia” address which were located entirely in Henrico County to “Henrico, Virginia.” Also, years before the ZIP code change, Henrico County began implementing programs to carefully track Retail Sales and Use Tax revenues to ensure that they were properly attributable to Henrico County.

Over the years, TAX has also worked to minimize the erroneous assignment of the local Retail Sales and Use Tax by improving its procedures for businesses to register for the tax and file returns. TAX recently enhanced the software it uses to allocate local taxes by upgrading to GPS software that is expected to improve the accuracy of locality distributions. TAX also recently updated the schedule used by Department of Taxation consolidated filers, Form ST-9B, Schedule of Local Taxes, to add a column for businesses to provide the number of locations they operate in each locality. These changes are expected to minimize the confusion among consolidated filers regarding the correct locality to which taxable transactions should be assigned.

In 2008, TAX began to review transactions closely that out-of-state merchants are not able to assign to a particular locality to determine the locality to which the allocation should have been assigned. As a result, TAX has seen a decrease in the volume of transactions that out-of-state merchants are unable to assign to a particular locality. TAX has also implemented systems improvements to minimize the potential for human error and further improve processing accuracy.

Despite these efforts, the problem of erroneous local sales tax assignment persists, as evidenced by the fact that TAX currently performs approximately fifty locality transfers per month. In response, some localities have suggested that the problem could be reduced if retailers were provided an incentive for properly allocating the tax or were penalized for erroneous allocations. This reports sets forth several incentive options that have been proposed to encourage retailers to properly register to collect the Retail Sales and Use Tax, timely inform TAX of changes to business locations, and utilize software certified by TAX to properly allocate the local sales and use tax. All of the incentives presented would provide a local dealer discount similar to the existing state dealer discount used to compensate retailers for accounting for and remitting the state Retail Sales and Use Tax.

Similarly, this report considers penalties that have been proposed for the erroneous assignment of local sales and use taxes. These proposals would penalize retailers who fail to properly register for collection of the local Retail Sales and Use tax, fail to notify TAX of new or changed business locations, or fail to utilize TAX-certified software. While imposing a penalty for these violations would likely decrease the number of erroneous local Retail Sales and Use Tax allocations, penalties could discourage dealers with no nexus with Virginia from voluntarily collecting the Virginia Retail Sales and Use Tax, potentially causing a larger revenue issue.

Retail merchants and businesses appear resistant to the concept of being penalized for incorrectly allocating local revenues. There may be some Virginia localities that are equally resistant to the concept of using local Retail Sales and Use Tax revenues to reward dealers for correctly allocating local revenues. Accordingly, while TAX has considered several options in this report, TAX is not recommending any particular proposal.