The Impact of Mergers and Acquisitions on Nexus and Registration

Is your business undergoing a reorganization?

The landscape shifts when mergers and acquisitions come into play. The identity, purpose, and offerings of a company are pivotal in determining the varying sales tax obligations across different states. This Kintsugi blog delves into the essential steps that every business must consider during mergers and acquisitions to minimize the risk of sales tax audits.

When your business becomes accountable for a new entity, the primary inquiry revolves around how the target entity will be integrated into the acquiring company's original operations. This determination is crucial to advance through the evaluation of nexus in sales tax and the sales tax registration process, as it can unfold in diverse ways.

Will the target entity merge into the buyer's existing legal structure, a common practice with asset acquisitions? Or will it maintain its status as a distinct legal entity, which is more frequent in stock acquisitions?

Assessing for Nexus

When dealing with an acquired entity, the initial step from a sales tax standpoint is conducting a nexus analysis of the target. Whether the target remains autonomous or merges into the buyer's entity has implications for the nexus assessment.

If the target retains its separate entity status, it's advisable to review existing registrations with state Departments of Revenue. This review aims to ascertain whether the entity is appropriately registered across all necessary locations, and if any areas of vulnerability exist.

Consider the following:

• When nexus was established
• Timing of registration
• Type of registration undertaken
• Current compliance with existing sales tax regulations
• Resolution of any past periods through audits or voluntary disclosure agreements

In case the target merges into the acquiring company's legal structure, it's time to assess whether adjustments are required for your registration based on the target's nexus profile. The process involves comparing company and employee locations, inventory placement (including consigned items), tangible personal property, and real property locations with sales tax registrations. Does the acquisition alter your current company's status or will your existing physical presence impact the new addition? Subsequently, delve into sales tax data for a specific period to analyze transaction volumes and sales amounts per state relative to economic nexus thresholds. If there are states where nexus hadn't been established, the amalgamation of the two entities might alter the nexus configuration. For assistance in understanding economic nexus thresholds, refer to our Economic Nexus State by State Chart.

If the target remains an independent legal entity, it's imperative to identify any related entities to address affiliate nexus concerns. Affiliate nexus typically arises when a remote retailer holds a significant stake in, or is owned by, an in-state retailer. Activities like selling similar products, using the same business name, or leveraging in-state resources to target in-state consumers trigger affiliate nexus considerations.

Final Considerations

Examine how products reach customers and the channels utilized for sales. Assess the locations of service execution. Lastly, acknowledge the impact of the nexus establishment date on the acquiring buyer company during the transition if a merger occurs. Comprehensive information about the business and its operations is pivotal. Knowledge empowers effective decision-making.

Navigating nexus evaluation within the context of acquisition activities can be intricate. Evaluating each party's nexus profile and their combined effect necessitates a comprehensive approach. It's not merely about identifying nexus but also discerning the type of nexus. The amalgamation of companies could alter remote seller nexus into physical nexus, which, in turn, influences registration and filing schedules.

Enrolling New Entities

Once the acquisition structure and nexus points are determined, the subsequent step involves assessing whether any changes are necessary for sales tax registrations. A business reorganization that alters the operational structure typically mandates a new registration. For instance, a shift from partnership to corporation or from an out-of-state vendor to an in-state vendor could trigger this. Conversely, if a new legal entity emerges, it should register as a sales and use tax vendor, with the registration effective from the acquisition date of the target company. During the registration process, it's crucial to differentiate between registrations required for Secretary of State filings and those pertinent to the sales tax Department of Revenue.

Irrespective of whether new registration is essential or updates suffice, coordination with other stakeholders is vital. Collaboration with departments like payroll ensures avoidance of redundancy during registration for sales tax. Additionally, consult the seller to determine whether the seller's registration needs closure and final return filings. If the target entity is dissolving, the deregistration procedure can be complex, as different jurisdictions have varying requirements.

Deregistering Entities

De-registering a merged or dissolved entity for sales tax differs across states and can seem less complicated than anticipated. However, understanding the intricacies is crucial.

Various methods of de-registration exist across states, including:

• Marking a return as final (common misconception)
• Utilizing an option in the online tax filing portal
• Completing a dedicated online form
• Sending an email to the state
• Faxing documents to the state
• Mailing a de-registration application or letter to the state

De-registration details can be intricate. Addressing the time gap between sales tax collection cessation and the state's acknowledgment of de-registration (resulting in delinquent returns) is essential. Even zero-dollar returns must be filed to close a registration with outstanding periods. Moreover, deregistration might lead to the cancellation of other filing types and licenses in the state. Secretary of State registrations, income tax returns, and related accounts could be affected. When dealing with income tax returns, a "stub" period return could be necessary due to their annual nature.

Navigating the complexities of mergers and acquisitions demands diligence across all affected departments. Sales tax responsibilities are no exception. Taking proactive measures to understand nexus determination, successful registration, and even deregistration as business dynamics evolve will ensure a seamless transition.

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