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An In-Depth Guide to Voluntary Disclosure Agreements (VDAs)


Jeff Gibson · March 15, 2024 · 5 min read

An In-Depth Guide to Voluntary Disclosure Agreements (VDAs)

Introduction to Voluntary Disclosure Agreements

Voluntary Disclosure Agreements (VDAs) serve as a vital mechanism for both businesses and individuals to rectify their tax reporting and payment discrepancies. This detailed guide delves into the nuances of VDAs, offering insights into their objectives, advantages, and the step-by-step process for securing one.

A Voluntary Disclosure Agreement is a formal pact between a taxpayer and a tax authority, permitting the taxpayer to report previously undeclared or underreported tax liabilities voluntarily. In exchange, the tax authority usually offers certain benefits, such as penalty waivers and a restricted look-back period for taxes owed.

Example Scenario

Consider a business that, due to an oversight, failed to pay sales tax in a specific jurisdiction for the past five years. Upon discovering this error, the business can enter into a VDA with the tax authority. Instead of facing penalties and interest on five years of unpaid taxes, the VDA might limit the look-back period to three years and waive certain penalties, significantly reducing the business's liability.

The Core Objectives of VDAs

VDAs aim to incentivize compliance with tax laws by allowing taxpayers to correct their past mistakes under more favorable conditions than if the discrepancies were uncovered during an audit. They are particularly beneficial for addressing liabilities related to income taxes, sales taxes, or other business-related taxes.

Advantages of VDAs

Financial Benefits

  • Penalty Waivers: Taxpayers can often avoid penalties that would amount to thousands or even millions of dollars, depending on the size of the undeclared tax liabilities.

  • Reduced Interest Rates: Some jurisdictions offer reduced interest rates on overdue taxes for taxpayers entering into VDAs.

Compliance and Operational Benefits

  • Limited Look-Back Period: A common look-back period is three to four years, compared to the unlimited period that can be assessed if non-compliance is discovered during an audit.

  • Legal Protection: VDAs can provide legal protection from criminal charges related to tax evasion.

Case Study: A Retail Company's VDA Experience

A medium-sized retail company realized it had not collected or remitted sales tax in several states due to its e-commerce sales. After consulting with tax advisors, the company entered into VDAs with the states involved. The look-back period was limited to three years, whereas penalties that could have amounted to over $500,000 were waived. The company paid the back taxes and interest, which totaled approximately $1.2 million, a significant saving compared to the potential $1.7 million plus indefinite interest and penalties.

Eligibility and the VDA Process

Eligibility Criteria

  • Not currently under audit for the tax type in question.

  • The taxpayer must initiate contact before the tax authority reaches out regarding non-compliance.

  • Agreement to settle the unpaid taxes and interest.

Step-by-Step VDA Process

  • Preparation: Gather comprehensive records of business operations, sales, and previous tax filings to identify potential liabilities.

  • Anonymous Inquiry: Many jurisdictions allow for an initial anonymous inquiry to discuss the possibility of a VDA without disclosing the taxpayer's identity.

  • Formal Application: Submit the required documentation, often detailing the nature of the tax liabilities and the reasons for non-compliance.

  • Negotiation: Work with the tax authority to agree on the terms, including the look-back period and the total amount owed.

  • Agreement Execution: Sign the VDA, officially documenting the terms agreed upon.

  • Compliance Fulfillment: File the necessary returns, pay the agreed taxes and interest, and ensure ongoing compliance.

Best Practices for VDAs

  • Use Automation Software: Tax laws and VDA policies vary widely by jurisdiction. Professional advice is crucial. Let Kintsugi manage your VDAs across all 50 states and in all jurisdictions where you do business.

  • Accurate Disclosure: Ensure all information provided is accurate and comprehensive to prevent future liabilities.

  • Understand the Terms: Fully understand the terms of the VDA, including any future compliance obligations.

An Expanded Guide to Voluntary Disclosure Agreements (VDAs) in Specialized Contexts

Voluntary Disclosure Agreements (VDAs) play a critical role in helping businesses across various sectors comply with tax laws, especially when they've overlooked or underreported their tax liabilities. This guide now extends into the nuances of VDAs within three additional contexts: Software as a Service (SaaS), e-commerce, and services. Each section offers an in-depth exploration tailored to the unique challenges and considerations of these industries.

VDAs for Software as a Service (SaaS)

Overview

The SaaS model, characterized by delivering software applications over the internet, poses unique tax challenges, particularly concerning sales and use taxes. The taxability of SaaS products varies significantly by jurisdiction, creating a complex compliance landscape for SaaS providers.

Tax Challenges

  • Jurisdictional Variation: Some states tax SaaS as tangible personal property, while others do not.

  • Nexus Considerations: The presence of users in various jurisdictions can create tax nexus, obligating SaaS providers to collect and remit sales tax in those locations.

VDA Benefits for SaaS Providers

  • Clarification of Tax Liabilities: A VDA can help SaaS providers determine their tax obligations in ambiguous jurisdictions.

  • Reduction of Exposure: By limiting look-back periods and waiving penalties, VDAs reduce financial exposure from past non-compliance.

Implementing VDAs for SaaS

  • Nexus Analysis: Conduct a thorough analysis to identify states where the software usage creates a tax nexus.

  • Taxability Assessment: Determine the taxability of the SaaS offerings in those jurisdictions.

  • Engage with Tax Authorities: Use VDAs to engage proactively with tax authorities, clarify obligations, and reduce past liabilities.

Case Example: A SaaS Startup

A SaaS startup, after rapid expansion, realized it had not assessed sales tax obligations in multiple states where it had a significant user base. By entering into VDAs, the startup managed to negotiate a three-year look-back period and avoid $300,000 in penalties, paying $600,000 in back taxes plus interest, considerably less than the potential $900,000 plus indefinite penalties.

VDAs for E-Commerce

Overview

E-commerce businesses face unique tax compliance challenges due to their wide reach and the physical presence of customers rather than the businesses themselves. The landmark South Dakota v. Wayfair, Inc. decision has further complicated this landscape, allowing states to require remote sellers to collect and remit sales tax even without a physical presence. Tax Challenges

  • Economic Nexus: Many states have adopted economic nexus thresholds, requiring e-commerce businesses to comply with local sales tax laws based on sales volume or revenue.

  • Product Taxability: The taxability of goods sold online can vary, complicating compliance efforts.

VDA Benefits for E-Commerce

  • Mitigate Economic Nexus Risks: VDAs allow e-commerce businesses to address past non-compliance related to economic nexus laws.

  • Simplify Tax Compliance: Through VDAs, businesses can streamline their tax compliance processes, reducing the risk of future non-compliance.

Implementing VDAs for E-Commerce

  • Economic Nexus Review: Identify states where economic nexus thresholds have been exceeded.

  • Product Classification: Assess the taxability of products in different jurisdictions.

  • Proactive Engagement: Use VDAs to negotiate terms with tax authorities, focusing on reducing back tax liabilities and penalties.

Case Example: An Online Retailer

An online retailer exceeded the economic nexus threshold in several states without realizing its obligation to collect and remit sales tax. Through VDAs, it negotiated a look-back period of two years instead of four, waived penalties totaling $200,000, and paid $400,000 in back taxes and interest.

VDAs for Services

Overview

The taxation of services, ranging from professional consulting to digital marketing, varies widely among jurisdictions. Determining when and where services are taxable requires careful consideration of nexus laws and the nature of the services provided.

Tax Challenges

  • Service Taxability: The rules governing the taxability of services can be complex and vary significantly.

  • Jurisdictional Nexus: Similar to SaaS and e-commerce, service providers may create tax nexuses in multiple jurisdictions without a physical presence.

VDA Benefits for Service Providers

  • Clarify Tax Obligations: VDAs can help service providers determine their tax liabilities in complex multi-jurisdictional scenarios.

  • Reduce Liability Exposure: Negotiating VDAs can limit look-back periods and eliminate penalties, significantly reducing tax liability from past non-compliance.

Implementing VDAs for Services

  • Nexus and Taxability Analysis: Understand where services create a tax nexus and the rules for taxability in those jurisdictions.

  • Engagement with Authorities: Proactively approach tax authorities with VDAs to address and correct past non-compliance.

  • Compliance Strategy: Develop a comprehensive strategy for ongoing compliance to avoid future issues.

Case Example: A Consulting Firm

A consulting firm discovered it had not collected sales tax on services deemed taxable in several jurisdictions. By entering into VDAs, it limited its look-back period to three years, avoiding $150,000 in penalties, and paid $250,000 in back taxes plus interest.

Conclusion

VDAs offer a pathway for businesses in the SaaS, e-commerce, and service industries to rectify past tax non-compliance under favorable terms. By understanding the unique challenges in each sector and engaging proactively with tax authorities, businesses can mitigate risks, reduce liabilities, and ensure ongoing compliance. Tailoring the approach to the specific needs and circumstances of each industry is crucial for leveraging VDAs effectively.

Try Kintsugi's cutting-edge automation for e-commerce sales tax challenges. Real-time integrations with Shopify, Amazon, Stripe and many more. Our platform has one-click filing, automates tax calculations across all 50 states in seconds, puts compliance documentation in one place, and offers real-time visualization into your nexus obligations. Free to try out, no credit card required.

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