Is FFL required to collect sales tax on out of state purchase?

Your FFL is not doing a sale, merely a transfer. In any event, most states have a "Use Tax" which is the same as the sales tax and you are supposed to voluntarily submit the proper amount for out of state sales. This wasn't really a big deal until the Internet marketplace exploded and states realized they were losing millions in taxes, so now many are instructing on-line sellers to collect and remit that tax

When I file state taxes in Ohio, there is a question in which you're supposed to declare any online purchases and pay required taxes. I don't mind it, but since eBay and GB already charge sales tax on used parts and firearms that have already been taxed when they were bought new, I call it a wash.

In some states they are required to.

I've never had to pay any tax on a gun sale. On other internet sales some vendors collect tax, others do not.

Ks5shooter said:

You buy a gun on line. Seller of the gun does not collect sales tax. Is your ffl required to collect the sales tax? Was curious. Thanks in advance for any info.

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Not under any Federal law or ATF regulation.
But there are different means by which you might be charged sales tax:
1. By the out of state seller.
2. By your local licensed dealer handling your transfer.
3. By the "marketplace provider".....Ebay for example.

Regarding the first.....
The South Dakota vs Wayfair decision means a lot of states can legally require an out of state seller to collect sales tax and subsequently remit that tax to the buyers state of residence.
For example, Texas:

TEXAS TAX RESPONSIBILITIES AND RESOURCES FOR SELLERS AFTER WAYFAIR
As a result of the U.S. Supreme Court’s decision in South Dakota v. Wayfair, Texas businesses selling items or services into other states may be required to collect taxes for those states. Additionally, sellers outside of Texas who were previously not required to collect and remit Texas sales and use tax may need to collect Texas tax on their sales into Texas effective Oct. 1, 2019.....

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The threshold?

A remote seller whose total Texas revenue from sales into Texas in the preceding 12 calendar months are less than $500,000 is not required to obtain a permit and collect tax. The dollar amount is based on gross revenue from sales of tangible personal property and services into Texas. The amount includes separately stated handling, transportation, installation, and other similar fees you collect. It also includes sales for resale and sales to exempt entities.

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Not all states may have a threshold as does Texas. And I can name at least three very large online firearm retailers that have not been collecting TX sales tax that should be.

Regarding your local dealer collecting the tax.....some states (before Wayfair) required the receiving dealer to collect sales tax, even though the firearm was not bought in state.
For example, Washington state FFL's have been required to collect WA sales tax on firearms transferred to them. They often ask me (the shipping dealer) to include a receipt showing the sales price. Being that I didn't sell the firearm, I can't do that....all I'm doing is shipping it for the nonlicensee that sold it. In that case the WA FFL will assign a taxable value and charge the transferee WA sales tax on that value.

Lastly, if there is a "marketplace provider" that collects funds on your behalf, then disburses those funds to you (as does Ebay) then the marketplace provider collects and subsequently remits the sales tax to the buyers state.

No, they are not selling you anything, they are providing a transfer service. I suppose if your state has a tax on services, they would be responsible for collecting and paying that tax.

When you file taxes your state may ask you to pay the sales tax on online purchases.

The FFL cannot collect sales tax on a transaction in which the seller is in another state or in the same state, for that matter. If the sale took place in another state, you may owe sales tax in that state. If the sale took place in your state, you may be responsible for reporting/paying sales tax in your annual state filing. The FFL may impose sales tax on the transfer, based on your state's tax laws), but has no legal basis whatsoever for collecting tax on a transaction in which he/she was not involved (and the transfer does not constitute involvement for tax purposes).

DocRock said:

The FFL cannot collect sales tax on a transaction in which the seller is in another state or in the same state, for that matter. If the sale took place in another state, you may owe sales tax in that state. If the sale took place in your state, you may be responsible for reporting/paying sales tax in your annual state filing. The FFL may impose sales tax on the transfer, based on your state's tax laws), but has no legal basis whatsoever for collecting tax on a transaction in which he/she was not involved (and the transfer does not constitute involvement for tax purposes).

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Wholly and completely wrong.
Read https://en.wikipedia.org/wiki/South_Dakota_v._Wayfair,_Inc.
States where the dealer is required to collect local tax on firearms sold OUTSIDE their state:
Washington https://dor.wa.gov/get-form-or-publ.../sales-and-transfers-firearms-license-dealers
California https://www.cdtfa.ca.gov/lawguides/vol2/suta/495-0848.html

In Ca the receiving FFLs have been collecting sales tax for many years. The State DOJ makes sure they do .

And yes, there is a question regarding out of State purchases on the annual income tax papers, too. Since I’ve already forked over tax to pick up the gun these don’t get added.

Stay safe.

dogtown tom said:

Wholly and completely wrong.
Read https://en.wikipedia.org/wiki/South_Dakota_v._Wayfair,_Inc.
States where the dealer is required to collect local tax on firearms sold OUTSIDE their state:
Washington https://dor.wa.gov/get-form-or-publ.../sales-and-transfers-firearms-license-dealers
California https://www.cdtfa.ca.gov/lawguides/vol2/suta/495-0848.html

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No. You are wrong and you are citing a case that has no bearing on this issue. Further, the opinions of state revenue agencies that have 1) no basis in law and 2) no test cases to back them up are ultra vires. IN NO STATE IN THE UNION can someone who has not engaged in a sale be required to collect sales tax on a transaction in another state. The fact that a rapacious state revenue agency may wish it done does not make it legal. There is ZERO case law to support this so-called "requirement" by the states of Washington and California. It is an ultra vires action with no support in established law: "When a licensed California firearm dealer completes the registration paperwork and delivers a firearm to a California purchaser for an out-of-state retailer not registered with the Board as a retailer engaged in business in this state, it is presumed that the dealer is the retailer of the firearm. In such a case, the dealer would owe sales tax on the total amount of the sales price of the gun." The state may presume what it wishes, but it may not make it so.

South Dakota vs Wayfair establishes the right of the state to seek sales tax on out of state transactions. It does not, nor can it, provide the state the right to designate persons who have not engaged in a sales transaction as tax collectors on behalf of the state.

DocRock said:

No. You are wrong and you are citing a case that has no bearing on this issue. Further, the opinions of state revenue agencies that have 1) no basis in law and 2) no test cases to back them up are ultra vires. IN NO STATE IN THE UNION can someone who has not engaged in a sale be required to collect sales tax on a transaction in another state. The fact that a rapacious state revenue agency may wish it done does not make it legal. There is ZERO case law to support this so-called "requirement" by the states of Washington and California. It is an ultra vires action with no support in established law: "When a licensed California firearm dealer completes the registration paperwork and delivers a firearm to a California purchaser for an out-of-state retailer not registered with the Board as a retailer engaged in business in this state, it is presumed that the dealer is the retailer of the firearm. In such a case, the dealer would owe sales tax on the total amount of the sales price of the gun." The state may presume what it wishes, but it may not make it so.

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I quoted the laws in two states. Whether or not there is case law does not invalidate those state laws.
So, yeah wrong.

South Dakota vs Wayfair establishes the right of the state to seek sales tax on out of state transactions. It does not, nor can it, provide the state the right to designate persons who have not engaged in a sales transaction as tax collectors on behalf of the state.

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That bolded part? I never made that claim.

Treading on thin ice here, so take my response with a grain of salt.

If you pay the seller your FFL should not be required to collect, he is only providing a service, i.e. the background check. In some states the seller is on the hook for collecting the tax when a buyer pays directly.

If you pay your FFL it is considered a local sale, which is taxable in most jurisdictions.

And I didn't stay at the Holiday Inn last night, so the question is best answered by you state dept of infernal revenue.

dogtown tom said:

I quoted the laws in two states. Whether or not there is case law does not invalidate those state laws.
So, yeah wrong.


That bolded part? I never made that claim.

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The "bolded part" is the heart of the issue.


You quoted state guidance and the fact that there is no legal basis for the state's assertion makes their claims invalid and illegal. If you imagine that state agencies do not act illegally with regularity, you are wrong.

Jesse Heywood said:

Treading on thin ice here, so take my response with a grain of salt.

If you pay the seller your FFL should not be required to collect, he is only providing a service, i.e. the background check. In some states the seller is on the hook for collecting the tax when a buyer pays directly.

If you pay your FFL it is considered a local sale, which is taxable in most jurisdictions.

And I didn't stay at the Holiday Inn last night, so the question is best answered by you state dept of infernal revenue

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This would be correct.

Washington State FFL's must collect a Use Tax on out of state transfers. Though not in state, apparently.

We've gone over this several times, evidently without gaining much ground, but I'll try again. The core of the issue is at what point the merchandise changes hands from a seller to a consumer or buyer. Sales tax is collected at the point the merchandise falls into the hands of the consumer, i.e. they buyer, i.e. you! As I hope most folks understand, unless you have an FFL, you cannot "buy" a handgun from someone outside of your state. Yes, you may send the person the money, but you are not actually "buying" the item at that point. The actual "buy" only takes place when you take possession of the merchandise. The point at which the merchandise comes into the hands of the "buyer" is the of the actual point of purchase and sales tax is supposed to be collected at that time. Simply sending someone some money is not a purchase. If it was and you sent someone money for a firearm without having an FFL, you would be breaking the law.

Let's try a different approach. Lets suppose you were allowed to buy a firearm directly from the manufacturer. Do you think that a state would expect the manufacturer to collect sales tax on a "retail" sale whether you walked in the door to do a face-to-face purchase or did it through the mail? Certainly, they would. When a business purchases merchandise from a manufacturer or wholesaler, he/she must include a copy of his/her business license and state tax number. If he/she doesn't do that, the manufacturer/wholesaler will charge sales tax.

If you live in a state that has a sales tax -- now all but five states -- that state expects you to pay sales tax when you purchase an item (with the exception of food in some states). When your LGS "buys" merchandise from a manufacturer/wholesaler, he/she must include a copy of his/her business license and tax number. If he/she does include that information, he/she will have to pay sales tax. Now, many people contend that you don't need to pay sales tax because a sales tax was collected when the item was new. Huh? When you buy a new car, there is a sales tax; when you buy a used car that a car dealer bought at an auction, there is a sales tax. How is that different from your firearms transfer? It isn't! If you buy a new firearm in a state that collects a sales tax, you are supposed to pay a sales tax. It is the same when you pick up a transfer from your LGS! Your LGS has not paid a sales tax on the item -- he/she knows (or should know) that if they are in a sales tax state, sales tax must be paid on that merchandise. Just because it is a "transfer" does not mean it is exempt from sales tax.

Many years ago, in the 1970s and even into the 1980's, firearms transfers were not that common. I worked for some LGS did not charge sales tax on transfers because: 1) it was a courtsey he/she was extending to the customer in the hope of future business or 2) he /she didn't understand they were required to collect sales tax. Then in the 1990s along came the fed. crackdown on the LGS. The feds. decided there were too many FFLs out there and they actively began a campaign to reduce the number The feds. first line of attack was the dreaded "audit." Agents threatened to take away licenses because dealers were not spelling out the names of states on the 4473. I know of another store they closed because it didn't have a fire extinguisher! In the course of a detailed audit, the feds compared your bound book to your sales receipts. You had to have a sales reciept or another means of accounting for every item in your bound book. Then, if you got past that step, and the feds. really wanted to shut down a dealer, they would quietly mention to the state tax folks that it appeared that this particular LGS wasn't properly collecting state sales tax. The state sales tax people would then swoop in, do an audit and, sure enough, they often discovered the LGS wasn't properly collecting state sales tax. The result was a hefty fine that the LGS often couldn't afford to pay, so having lost his/her business licence, he/she was out of business which is what the feds wanted in the first place.

Now, there is one more important point that has to be brought up. Many folks have pointed out that things have changed in recent years and the states want more sales tax than ever. Some states even expect you to pay it voluntarily on your yearly income tax form. One of the things that has changed in many states is the addition of a tax on services. For example, it used to be that the plumber only charged tax on the parts he/she used, but not on his/her labor and/or services. Now many states require him/her to collect a sales tax on his/her service as well as the parts. So, if your LGS is charging a fee for your transfer, that is a service and if you are in a state with a sales tax on services, your LGS is supposed to be charging you a sales tax on that transfer fee. In my county, for example, sales tax is 7.5 %, so when my LGS charges $20 for a transfer, he really should be collecting $21.50, and if he/she doesn't charge that additon $1.50 in sales tax, he/she will have to take it out of his/her pocket at the end of the quarter or year. Yes, its a small amount, but ultimately at the end of the taxing period, all of those small amounts add up and it can mean the difference between staying in business and closing the doors for your LGS.

@drk1, thanks for taking time to explain that. The state imposed fiction that the sale takes place at point of transfer is of course the only possible explanation for the illegal CA and WA requirements for FFLs to.collect sales tax, although presumably WA seems to get around it by calling it a "use tax", which is nonsense but may aid their legal fiction.

In both cases, the imposition of the fiction that the sale takes place at the point of transfer (POT) rather than the point of sale (POS) is contradicted by any exemption of collection of sales tax on the event that the seller in the other jurisdiction collected the sales tax of that jurisdiction. Simply put, such an exemption recognizes that the sale took place in another state. So the argument that sale is not complete until transfer of possession in the receiving ffl's state is contradicted by the exemption granted in the event sales tax was collected by the seller.

This is not theory on my part. When we moved to CO from NY years ago, one of the vehicles we arrived with had been a lease vehicle that I purchased at the end of lease, from the leasehold company in TX. I paid NY sales tax. When I arrived in CO and went to register the vehicle I found that I had never changed rifle on the vehicle. I had proof of ownership change (sale). CO Dept of Revenue argued that when I changed title I would owe the title change fee, plus the difference in sales tax between NY and CO. Because they said, while the transaction may have been between a NY resident and a TX corporation, they claimed that under CO law, the transaction was not complete until the title transfer was completed. You see here the similarity to the effort to make a firearm transaction completion dependent on transfer. My alternatives, it was explained, were to mY the full Colorado sales tax and seek a refund from NY for what I had paid ;-) or to have the vehicle retitled in NY and then registered in CO.

But CO had made a mistake. As do the states that exempt collection of sales tax on firearms by their FFL's if it has been collected in the seller's jurisdiction. Because the exemption, or in my case the exemption of the amount I paid in NY sales tax, recognizes that a transaction was completed. In my case, the Dept of Revenue could not recognize the payment of sales tax on NY and then deny that a transaction had been completed. I wrote to the Colorado Attorney General, explained my case and that If Colorado didn't refund me the amount it collected in sales tax (it was about $21.00), then I would take the state to small claims court (effectively no cost to me) and then, when I won, I would encourage a law firm to file a class action suit on behalf of all those from whom sales tax was illegally collected in such a manner. Shortly thereafter I received a refund from the Dept of Revenue and never ever heard from the Attorney General's office.

The state cannot claim that a transaction is not completed until the FFL transfers the item to the purchaser if it recognizes and exempts sales taxes collected in another jurisdiction.

If resident of CA buys a rifle in CO and pays CO sales tax and then does not have to pay CA sales tax on the same rifle at transfer, then CA is acknowledging that a sale took place prior to transfer.

The state's position that the transaction is completed at transfer and sales tax must be collected by the FFL if it has not been collected by the seller is therefore invalidated by its own admission. It is illegal and the state cannot force an individual not party to a transaction to tax farm in its behalf.

The state's position that simply sending someone some money is not a purchase is contradicted by their recognition of and exemption of sales tax collected by the seller. The state may certainly require that its sales tax be paid on a purchase in another state where no such tax is required. The state cannot howver force a person not engaged in that transaction to collect it on their behalf. And the fiction that the transaction is not completed until transfer is contradicted by their exemption from collection in the event that the seller collected sales tax.

The ones I know who do collect sales tax on transfers around here are often just trying to penalize the buying from not buying from them.

commygun said:

Washington State FFL's must collect a Use Tax on out of state transfers. Though not in state, apparently.

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In state, it is called a sales tax

The core of the issue is at what point the merchandise changes hands from a seller to a consumer or buyer. Sales tax is collected at the point the merchandise falls into the hands of the consumer, i.e. they buyer, i.e. you!

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No, not really. When I buy something from Amazon, they collect sales tax, even though they haven't shipped it to me; same for Cabela's since BASS Pro has a presence in my state, even though Cabela's does not. That tax is collected before they pull, box and ship my item, let alone when it falls into my hand.

commygun said:

Washington State FFL's must collect a Use Tax on out of state transfers. Though not in state, apparently.

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45 of the 50 you are supposed to pay a use tax. whether they hit you at the FFL or you voluntarily send it in.

DocRock said:

@drk1, thanks for taking time to explain that. The state imposed fiction that the sale takes place at point of transfer is of course the only possible explanation for the illegal CA and WA requirements for FFLs to.collect sales tax, although presumably WA seems to get around it by calling it a "use tax", which is nonsense but may aid their legal fiction.
.

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You can say the laws are invalid and don't apply, however trying to run a business with that attitude will get you shut down real quick. I've dealt with a number of state sales tax auditors and I'm sorry, but that post would make them burst out laughing

drk1 said:

We've gone over this several times, evidently without gaining much ground, but I'll try again. The core of the issue is at what point the merchandise changes hands from a seller to a consumer or buyer. Sales tax is collected at the point the merchandise falls into the hands of the consumer, i.e. they buyer, i.e. you! As I hope most folks understand, unless you have an FFL, you cannot "buy" a handgun from someone outside of your state. Yes, you may send the person the money, but you are not actually "buying" the item at that point. The actual "buy" only takes place when you take possession of the merchandise. The point at which the merchandise comes into the hands of the "buyer" is the of the actual point of purchase and sales tax is supposed to be collected at that time. Simply sending someone some money is not a purchase. If it was and you sent someone money for a firearm without having an FFL, you would be breaking the law.

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False. Purchase and transfer of possession are two different acts.
A person can purchase a firearm, and may be denied the transfer. They still have ownership but cannot take possession.
<----2,000 transfers a year and not a one was "purchased" from me.

Let's try a different approach. Lets suppose you were allowed to buy a firearm directly from the manufacturer. Do you think that a state would expect the manufacturer to collect sales tax on a "retail" sale whether you walked in the door to do a face-to-face purchase or did it through the mail? Certainly, they would. When a business purchases merchandise from a manufacturer or wholesaler, he/she must include a copy of his/her business license and state tax number. If he/she doesn't do that, the manufacturer/wholesaler will charge sales tax.

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Not until fairly recently. Until South Dakota vs Wayfair that out of state seller was only required to collect sales tax if they had a business nexus in the buyers state of residence.

If you live in a state that has a sales tax -- now all but five states -- that state expects you to pay sales tax when you purchase an item (with the exception of food in some states). When your LGS "buys" merchandise from a manufacturer/wholesaler, he/she must include a copy of his/her business license and tax number. If he/she does include that information, he/she will have to pay sales tax. Now, many people contend that you don't need to pay sales tax because a sales tax was collected when the item was new. Huh? When you buy a new car, there is a sales tax; when you buy a used car that a car dealer bought at an auction, there is a sales tax. How is that different from your firearms transfer? It isn't! If you buy a new firearm in a state that collects a sales tax, you are supposed to pay a sales tax. It is the same when you pick up a transfer from your LGS! Your LGS has not paid a sales tax on the item -- he/she knows (or should know) that if they are in a sales tax state, sales tax must be paid on that merchandise. Just because it is a "transfer" does not mean it is exempt from sales tax.

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First, a "transfer" is not considered a "sale" in many states.....Texas being one. A Texas FFL does not collect any sales or use tax on a firearm that the buyer purchased from out of state. Customer buys a Glockchester from Bud's, there are two possibilities: Bud's collects TX sales sales and remits to Texas or Bud's does not collect TX sales tax and buyer is responsible for paying use tax to the State of Texas.
Second, if a customer comes to the dealer, asks him to order a Glockchester, from a manufacturer or distributor and paying the dealer.......thats a purchase. The dealer would be required to charge his state sales tax.

Many years ago, in the 1970s and even into the 1980's, firearms transfers were not that common. I worked for some LGS did not charge sales tax on transfers because: 1) it was a courtsey he/she was extending to the customer in the hope of future business or 2) he /she didn't understand they were required to collect sales tax.

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Or just maybe a transfer wasn't considered a taxable transaction....like Texas and other states. You don't show your state or the state where you worked, so its a tossup if your boss was compliant with his states tax code.

Then in the 1990s along came the fed. crackdown on the LGS. The feds. decided there were too many FFLs out there and they actively began a campaign to reduce the number The feds. first line of attack was the dreaded "audit." Agents threatened to take away licenses because dealers were not spelling out the names of states on the 4473.

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See, this is where any argument you make fails.
"Spelling out the name of the states" has never been a requirement and ATF has stated this in writing for decades.
During the Clinton administration ATF began enforcing their own regulations.....among them the requirement that licensees operate legally under all federal, state and local laws. If the licensee didn't have a sales tax permit or business license he was given a grace period to obtain such. Many chose to give up their FFL because they wouldn't or couldn't' do that. Other FFL who were using their 01FFL Dealer license for personal collecting and not for actually engaging in the business of dealing in firearms were told that was a violation.....a violation the day they lied on the FFL Form 7 when they applied for their FFL attesting the applicant wasn't going to use the license for personal collecting.
Ut was about this same time that many in the gun community started babbling about "kitchen table dealers" being outlawed.......utter nonsense. I received my first FFL while living in an apartment waiting on my current home to close. As my first IOI said....."I love home based dealers, I wouldn't have a job if there was no one to inspect". And he was right, there being far more home based FFL's than those with retail brick and mortar storefronts.

I know of another store they closed because it didn't have a fire extinguisher!

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Horsehockey.
There has never been such a requirement in Federal law or ATF regulations.
Now, it's possible that a local or state law required such, but enforcement of those laws are not in the authority of ATF.
Sounds to me like your time at that LGS didn't include much time reading ATF regulations.

In the course of a detailed audit, the feds compared your bound book to your sales receipts.

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Horsehockey again.
An ATF compliance inspection does not give an IOI the right to examine a licensees financial records.
A compliance inspection is limited by law to:
Bound Book (Record of Acquisition & Dispositions)
Form 4473's
Multiple Sale of Handgun forms
Multiple Sale of Certain Rifles (only for dealers in border states)
Current Inventory

They compare the entries in the Bound Book vs 4473's vs current inventory and check whether the dealer completed and submitted a multiple sale report when required.

Thats it.
ATF compliance inspections cannot examine a dealer bank statement, check book, his sock drawer or search his attic.

You had to have a sales receipt or another means of accounting for every item in your bound book.

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No, for items recorded in the bound book the dealer must either be in possession of the firearm or show the disposition. That disposition is not a sales receipt, but a Form 4473 or the FFL number of the dealer the firearm was shipped/sold/traded or otherwise disposed to. A sales receipt is not proof of lawful disposition. For someone who worked in a LGS you should know that.

Then, if you got past that step, and the feds. really wanted to shut down a dealer, they would quietly mention to the state tax folks that it appeared that this particular LGS wasn't properly collecting state sales tax. The state sales tax people would then swoop in, do an audit and, sure enough, they often discovered the LGS wasn't properly collecting state sales tax. The result was a hefty fine that the LGS often couldn't afford to pay, so having lost his/her business licence, he/she was out of business which is what the feds wanted in the first place.

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Sure they did. Being that sales tax records aren't part of the compliance inspection ATF wouldn't know. And not paying his sales tax? He's a cheat.

Now, there is one more important point that has to be brought up. Many folks have pointed out that things have changed in recent years and the states want more sales tax than ever. Some states even expect you to pay it voluntarily on your yearly income tax form. One of the things that has changed in many states is the addition of a tax on services. For example, it used to be that the plumber only charged tax on the parts he/she used, but not on his/her labor and/or services. Now many states require him/her to collect a sales tax on his/her service as well as the parts. So, if your LGS is charging a fee for your transfer, that is a service and if you are in a state with a sales tax on services, your LGS is supposed to be charging you a sales tax on that transfer fee. In my county, for example, sales tax is 7.5 %, so when my LGS charges $20 for a transfer, he really should be collecting $21.50, and if he/she doesn't charge that additon $1.50 in sales tax, he/she will have to take it out of his/her pocket at the end of the quarter or year. Yes, its a small amount, but ultimately at the end of the taxing period, all of those small amounts add up and it can mean the difference between staying in business and closing the doors for your LGS.

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True, IF your state considers a "transfer" as a taxable service. Mine doesn't.

DocRock said:

The state cannot howver force a person not engaged in that transaction to collect it on their behalf. And the fiction that the transaction is not completed until transfer is contradicted by their exemption from collection in the event that the seller collected sales tax.

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Maybe you should move your law practice to California or Washington and argue your theory there.