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Cracking the Code: No Nexus in Utah for Internet Gift Code Seller

By Kathryn Pittman and Andrew Appleby

The Utah Department of Revenue con

By Kathryn Pittman and Andrew Appleby

The Utah Department of Revenue concluded that gift codes sold by an out-of-state seller (Gift Code Issuer) to Utah consumers were not subject to sales and use tax and that specified activities conducted by third parties in Utah relating to such sales of gift codes did not create nexus for the Gift Code Issuer or its affiliates. The Gift Code Issuer sold gift codes to Utah consumers directly via the Internet and to third-party wholesalers that resold the gift codes to consumers and retailers at brick-and-mortar stores for resale, some of which were in Utah. Such gift codes were redeemable by consumers for goods and services to be purchased from Internet retailers. Some Internet retailers were affiliated with the Gift Code Issuer, but none had a physical presence in Utah, and sales of tangible personal property by such affiliates to Utah consumers were delivered via common carrier. Where the Gift Code Issuer sold gift codes to consumers directly via the Internet, the Department determined such codes represented an intangible right to acquire goods and thus were not sales of tangible personal property subject to Utah sales and use tax. Where the Gift Code Issuer sold gift codes to wholesalers, the Department determined that neither the Gift Code Issuer nor its Internet retailer affiliates had nexus under the U.S. constitution or Utah law because they did not have a physical presence or any market-related activities in Utah. Finally, the Department determined that the third parties conducting activities in Utah did not create nexus for either the Gift Code Issuer or its Internet retailer affiliates under Utah’s recently enacted affiliate nexus statute because the related seller and ownership requirements of the statute were not met with regard to such third parties. Utah Priv. Ltr. Rul. 12-010 (Feb. 8, 2013).

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