Nev. Admin. Code § 372.856 — 372.856

NAC 372.856    Factors for determining whether activities of retailer have
sufficient nexus with this State. ( NRS
360.090 , 372.724 , 372.725 ,
374.724 ,
374.725 )
1.  For the purpose of determining whether
the activities of a retailer located outside this State have a sufficient nexus
with this State to satisfy the requirements of the United States Constitution,
except as otherwise provided in NRS
372.7243 , 372.7247 , 374.7243 or 374.7247 or NAC 372.848 or 372.851 , the activities of a retailer have
a sufficient nexus with this State if the retailer is making a sale of tangible
personal property, whether at retail or for storage, use or other consumption
in this State, and the retailer:
(a) Is part of a controlled group of corporations
that has a component member with physical presence in this State and the
activities performed in this State by the component member are:
(1) Listed in paragraph (b) of subsection 1 of
NRS 372.7243 or paragraph (b) of
subsection 1 of NRS 374.7243 ; or
(2) Significantly associated with the retailer’s
ability to establish or maintain a market in this State for the retailer’s
products or services;
(b) Enters into an agreement with a resident of
this State under which the resident, for a commission or other consideration
based upon the sale of tangible personal property by the retailer, directly or
indirectly refers potential customers to the retailer, and the cumulative gross
receipts from sales by the retailer to customers in this State who are referred
to the retailer by all residents with such an agreement with the retailer is in
excess of $10,000 during the preceding four quarterly periods ending on the
last day of March, June, September and December;
(c) Does not have a physical presence in this
State, does not have a sufficient nexus with this State pursuant to paragraph
(a) or (b) and in the immediately preceding calendar year or the current
calendar year:
(1) The gross revenue of the retailer from the
retail sale of tangible personal property delivered in this State is greater
than $100,000; or
(2) The retailer made 200 or more retail sales
of tangible personal property for delivery in this State; or
(d) Engages in any other activity that establishes
a sufficient nexus with this State to satisfy the requirements of the United
States Constitution.
2.  If a retailer is unable to determine
which sales to customers in this State were the result of an agreement with a
resident of this State as described in paragraph (b) of subsection 1, all gross
receipts from sales by the retailer to customers in this State will be
considered for purposes of establishing that the activities of a retailer have
a sufficient nexus with this State pursuant to paragraph (b) of subsection 1.
3.  If the activities of a retailer located
outside this State have a sufficient nexus with this State pursuant to:
(a) Paragraph (a), (b) or (d) of subsection 1:
(1) The provisions of chapters 360B , 372 and 374
of NRS relating to the imposition, collection and remittance of the sales tax
and the collection and remittance of the use tax apply to the retailer; and
(2) The retailer shall register with the
Department pursuant to NRS 360B.200
before, or at the time of, making the sale.
(b) Paragraph (c) of subsection 1:
(1) Beginning on the first day of the first
calendar month that begins at least 30 calendar days after the retailer
satisfied the criteria set forth in subparagraph (1) or (2) of paragraph (c) of
subsection 1, the provisions of chapters
360B , 372 and 374 of NRS relating to the imposition,
collection and remittance of the sales tax and the collection and remittance of
the use tax apply to the retailer; and
(2) Not later than the first day of the first
calendar month that begins at least 30 calendar days after the retailer
satisfied the criteria set forth in subparagraph (1) or (2) of paragraph (c) of
subsection 1, the retailer shall register with the Department pursuant to NRS 360B.200 .
4.  As used in this section, “commission or
other consideration based upon the sale of tangible personal property”
includes, without limitation, an agreement to pay an amount of money based on
the level of sales completed, cost per mille advertising, the payment of a flat
fee in exchange for a referral, the payment of a fixed price in exchange for
providing a referral link, or any other item of value given in exchange for a
referral.
(Added to NAC by Tax Comm’n by R137-15, eff. 11-2-2016;
A by R189-18, 9-27-2018)
REVISER’S NOTE.
The regulation of the Nevada Tax Commission filed with
the Secretary of State on September 27, 2018 (LCB File No. R189-18), which
amended this section to impose the requirements of existing law for determining
whether the activities of a retailer have sufficient nexus with this State,
contains the following provision not included in NAC:
“Sec. 3.  This regulation, LCB File
No. R189-18, is hereby amended by adding thereto the following transitory
language which has the force and effect of law but which will not be codified
in the Nevada Administrative Code:
1.  The Department of Taxation shall
establish the date on which the Department will begin to enforce the provisions
of this regulation which impose requirements relating to the imposition,
collection and remittance of sales and use taxes on retailers who satisfy the
criteria set forth in paragraph (c) of subsection 1 of section 7 of LCB File
No. R137-15, as amended by section 2 of LCB File No. 189-18 [ NAC 372.856 ]. The Department shall post
notice of the date established pursuant to this subsection on the Internet
website of the Department and make such other efforts to notify retailers of
that date as the Executive Director of the Department deems appropriate. The
failure of a retailer to receive notice of the date established by the
Department pursuant to this subsection does not excuse the retailer from
compliance with any requirement relating to the imposition, collection and
remittance of sales and use taxes.
2.  Notwithstanding the provisions of
section 7 of LCB File No. R137-15, as amended by section 2 of LCB File No.
189-18 [ NAC 372.856 ], and except as
otherwise provided in subsection 3, before the date established by the
Department of Taxation pursuant to subsection 1, the Department shall not
require a retailer who satisfies the criteria of paragraph (c) of subsection 1
of section 7 of LCB File No. R137-15, as amended by section 2 of LCB File No.
189-18 [ NAC 372.856 ], to comply with the
requirements of chapters 360B , 372 and 374
of NRS relating to the imposition, collection and remittance of sales and use
taxes.
3.  The provisions of subsection 2 do not
prohibit a retailer who satisfies the criteria set forth in paragraph (c) of
subsection 1 of section 7 of LCB File No. R137-15, as amended by section 2 of
LCB File No. R189-18 [ NAC 372.856 ], from
voluntarily complying with the requirements of chapters 360B , 372 and 374
of NRS relating to the imposition, collection and remittance of sales and use
taxes before the date established by the Department of Taxation pursuant to
subsection 1. If, before the date established by the Department pursuant to
subsection 1, a retailer who satisfies the criteria set forth in paragraph (c)
of subsection 1 of section 7 of LCB File No. R137-15, as amended by section 2 of
LCB File No. R189-18 [ NAC 372.856 ],
voluntarily complies with the requirements of chapters 360B , 372 and 374
of NRS relating to the imposition, collection and remittance of sales and use
taxes, the provisions of chapter 360 of
NRS relating to the payment, collection, administration and enforcement of
taxes, and the provisions of chapters
360B , 372 and 374 of NRS relating to the imposition,
collection and remittance of sales and use taxes, apply to the retailer.”
COMPUTER
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