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This page contains a single entry from the blog posted on January 6, 2012 10:49 AM. The previous post in this blog was Oh, no! Crypto!. The next post in this blog is Hold on to your wallets, Portland. Many more can be found on the main index page or by looking through the archives.

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Friday, January 6, 2012

Should Sherri have gone to the mattresses with Olympia?

Our strange fascination with Mattress World hasn't waned with its demise as a going concern. We've been thinking pretty hard all week about the company's problems with the Washington State sales tax, which its owner, Sherri Hiner, says is driving the firm out of business. We're no expert on Washington State taxes, but we sense that there's a lot of public misunderstanding about her situation.

Here's our sense of what's going on. Readers with a greater knowledge than ours, correct us if we're getting any of this wrong:

The issue is whether Mattress World should have collected sales tax on beds that it sold to residents of Clark County, Washington. If the customers had themselves taken the beds home to Clark County from the Oregon showrooms, it is clear that no sales tax would be due. Thus, the suggestion that Washington is requiring Oregon businesses to see every customer's identification is inaccurate. When Washington State residents buy goods in Oregon and take them home to the 'Couv themselves, use tax is due, but that is the customers' responsibility, not the seller's. (And except with big ticket items like cars, the customers just laugh that one off, and the state looks the other way.)

But most mattresses are delivered to the customer's residence; this changes the picture. Since Mattress World products are delivered to (and installed in) Clark County homes, under Washington State statutes, sales tax is due, and it's the seller's duty to collect it. As we understand it, this is because Washington, like many other states, imposes a "destination-based" sales tax. As the state sees it, the sale takes place for sales tax purposes where the delivery occurs, not where the credit card is swiped.

But the federal constitution -- the due process clause, the commerce clause, or both -- prohibits forcing the seller to collect the tax in such a case unless the seller (here, Mattress World) has what they call a "nexus" with Washington State.

If the company had used UPS or FedEx to make its deliveries, would it have had a "nexus" with Washington State? To our non-expert eye, probably not. To establish a "nexus," it would probably need to have some sort of presence in the state. Would advertising on Portland broadcast media, which reach into Clark County, be enough? Probably not. Would adding the internet, which goes everywhere, into the equation make a difference? Probably not. Would advertising in the Columbian or other Washington State-based publications tip the balance? Maybe.

But the plot thickens when one considers the fact that Mattress World mattresses were not delivered by a common carrier such as UPS or FedEx. Moreover, customers' old mattresses were probably picked up and hauled off by the people who made the deliveries. The key question, then, and perhaps the only significant question, is whether the delivery people who journeyed into Clark County were sufficiently affiliated with Mattress World to give that company the required "nexus." Did they drive Mattress World trucks? Did they wear Mattress World uniforms? Exactly what services did they provide, and for whom? What were the customers' understanding of those relationships?

With all the public discussion that's gone on about the case, those factual questions haven't, to our knowledge, been covered.

If Washington State revenue officials are claiming that having an internet site and advertising on Portland TV and radio is enough to create a "nexus" to their state, then somebody should take them to court and battle it out as high as they can go. Of course, a cash-strapped business doesn't have the kind of dough that it would take to wage such a fight. And besides, depending on the facts, Mattress World may have had a lousy case. But it's hard to tell from what's been published in the media how bad a case it had.

It would be interesting to know how many other Oregon businesses are hearing from Washington State these days, and how aggressive that state is being with its constitutional theories about sales tax "nexus." It sounds like one more thing to worry about if one decides to open a retail sales business in Portlandia. Maybe a local trade group on the south side of the river should take up a collection and give the folks in Olympia a run for their money.

Comments (36)

The United States Supreme Court weighed in on this in a 1992 case called Quill Corporation v. North Dakota (504 US 298), and held that Quill didn't have to collect sales taxes on orders that it mailed or shipped to North Dakota because it didn't have a physical presence in North Dakota and wasn't making the sales in North Dakota. If pushed to the mat, I think Washington loses this battle.

A few days ago I heard of another case in which Washington is trying to collect sales taxes from an Oregon business that sells prefab buildings. In that instance the seller doesn't even ship the buildings; the customer has to hire and arrange for shipping to Washington.

This is just the kind of case that the Washington Legal Foundation in D.C. loves to take.

In my experience the Washington Department of Revenue has been fairly aggressive for a long time --30+ years-- in collecting taxes generally when residents try to play the border game. I believe they monitor bridge traffic cams on the Interstate bridge watching for indications of this this kind of stuff (delivery trucks, etc).

I must qualify for the geek squad because I find this legally kind of interesting. Thanks to Jack, I have actually paid attention to Sherri Hiner and MattressWorld's plight.

As a small business owner myself, the last three years have been rugged. I think Hiner had a colorable argument that she didn't owe those taxes to Washington - but like so many struggling small business owners (you know, the ones that are "job creators") she didn't have the money to fight. So, as I understand it, Oregon lost 90 jobs, and a business goes under. Great result. Thanks, Washington DOR.

Supposedly this dispute dates back to 2004 - didn't MW have a decent tax accountant or attorney sometime in the past seven years to alert them to potential issues?

Big fish always eat little fish.

So Washington's tax authorities are just as abusive and anti-business as Oregon's. A good reminder that despite how we all often feel Oregon doesn't necessarily have a monopoly on bad policy and overweening government.

I thought I heard her say the deliveries were made by a different company than hers, if that helps.

But mainly, I liked the use of the Mafia phrase "go to the mattresses." Dennis Miller has made a great living with obscure references, but I like the ones that tie in to the subject. Well played.

I too have been interested in this case after reading about it here. In the interviews I have read she does not mention having relied on advice or to have tax representation. Could she be fighting this alone?

Curiously I read somewhere that she remitted 200k+ of the combined assessment of 1.something million. Was it some kind of peace offering? Seriously, who does that outside of an agreement on the facts or a collection plan.

I smell great disorganization and a 200k levy that is being described in the press as a tax payment.

I believe they monitor bridge traffic cams on the Interstate bridge watching for indications of this this kind of stuff (delivery trucks, etc).

The cameras were there to catch Oregon license plates heading south in the morning and north in the evening - a fairly good indicator that one had their residence in Washington but their car registration with someone in Oregon. But that's yet another topic for discussion.

And there's also the boat registration issue - lots of big boats in the San juans used to carry Oregon registrations, to avoid the Washington sales and excise taxes. I'm not sure where that one is at.

Note these would all be interesting questions for Charlie Hales, who seems to himself be confused about where he lived the past few years.

I've heard that the Washington Department of Revenue will also jot down license numbers of Washington vehicles at the cigarette stores at Jantzen Beach. Wouldn't surprise me if this is another category of business that Washington DOR is investigating.

I read that her presence in Wash state was determined by a warehouse she used in Wash state to store her mattresses.

If she stored inventory in Washington State, that would be an entirely different story.

Sounds like she got some poor accounting/legal advice (if any).

It's interesting Jack, that you should mention it would be an open and shut case if UPS or FedEx delivered the mattresses. If you go back 50 years UPS' core business was as a contract carrier delivering for local retailers. In the Chicago area where I grew up, for example, a department store order from Carson Pirie Scott, Marshall Fields or Wieboldts all were shipped locally via UPS. When the ICC (remember that?) relented to UPS' expansionist agenda, granting interstate operating authority and common carrier status state by state, the brown shirts phased out contract operations, in some cases as a condition of being granted common carrier status (to prevent that horribly evil practice of price discrimination, i.e., not charging all customers the exact same price).

What happens in the eastern U.S., where you have people routinely crossing state borders on an everyday basis?

And consider the situation in Bristol, Virginia/Tennessee, a fairly large city in which the main street running through the center of the town's business district is also the state border.

Most states have retail sales taxes. It's Oregon's lack of a retail sales tax that creates this issue on a broad scale.

One Oregon tax advisor recently asked colleagues in the field for advice with this problem:

Client manufactures and sells steel buildings. Client sells to buyers located primarily in Oregon, Washington, California and Idaho. The building components are fabricated and packaged at the client's sole facility in Oregon. Client delivers a buyer’s building to the buyer at client’s facility. Each buyer is responsible for transporting the purchased building from client’s facility to the ultimate destination. Some buyers transport the purchased building using their own truck. Most buyers arrange for transport by a common carrier. Client does not ship to, or arrange shipping for, its buyers.

The Washington Department of Revenue assessed sales tax on the buildings purchased from client by buyers located in Washington. The applicable regulations provide that Washington sales tax is due if two requirements are met: (1) there is nexus with the State of Washington, and (2) the goods purchased are received by the buyer in Washington.

Client appeals WDR's tax assessment on the basis that the goods purchased are not received by the buyer in Washington. In his written determination, the WDR appeals officer agrees that client delivers purchased buildings to Washington buyers in Oregon, but nevertheless upholds the assessment. In response to an oral inquiry seeking clarification of the basis for upholding the assessment, the WDR appeals officer says that WDR views the receipt of the purchased goods in Washington as a nominal requirement and assumes that if purchased goods end up in Washington, it is because the buyer received them in Washington.

Sounds like a hyper-aggressive stance by Washington. Sometimes you have to go to court, people.

Business Journal reports a number of facts on the case that I haven't read before.

http://www.bizjournals.com/portland/news/2012/01/04/mattress-world-sunk-by-washington-tax.html

I was wrong in thinking they were suddenly levied as I wrote above. Appears they were in a collection agreement since March 2010 and the wheels came off in late 2011. Could no longer afford the 20k a month plus legal fees.

IRS filed a 200k tax lien December 20th. Let's hope for Sherri's sake it is not payroll tax related.

(In the last line of the article, PBJ reporter is incorrect to state, without qualification, that taxes cannot be written off in bankruptcy).

"The issue is whether"

The other issue I have is that if the Dept of Revenue THINKS you owe them money, it is due now, even if they have to shut you down.

On the other hand, if the Dept of Rev owes you money, you'll need a judgment all the way thru the appeals process.

There seems to be a marked lack of consistency in the approaches to collection.

Of course, no one has said anything about Mattress World trucks going up to WA or not.

So I wonder if Oregon is going to monitor my Washington Costco Scotch runs..?

Tax Man: ...the WDR appeals officer says that WDR views the receipt of the purchased goods in Washington as a nominal requirement and assumes that if purchased goods end up in Washington, it is because the buyer received them in Washington.
JK: Question:
How is this enforced?
I can't picture them getting very far in an Oregon court. How would a Washington court enforce a ruling in Oregon? Or can a Washington court rule then go to an Oregon court for enforcement?

Thanks
JK

It would take a lot of Washington mattress deliveries to equal that kind of unpaid sales tax bill. Even with penalties.

I am going for a crude estimate here, please feel free to correct my math. What does a typical mattress cost? $1000? Washington's rate is 6.5% from what I can quickly tell. That is $65 per Washington sale. Not knowing how much of the 2 mil is penalties, that is over 37,000 Washington sales/deliveries to get to that number. Is that possible? Am I missing?

This issue brings up a point that is often overlooked by proponents of a sales tax for Oregon. IT IS A DIFFICULT TAX TO COMPLY WITH FOR BUSINESSES.

First of all, as we have seen, nexus is a big issue. And by the way, Washington now has what it calls ECONOMIC NEXUS. All you need to fall into that trap is Washington gross receipts over $250,000, regardless of whether you have any physical nexus.

Furthermore, businesses might have to file monthly, quarterly or annually depending upon their gross receipts. There is a high administrative cost to business and to the taxing jurisdiction.

Then there are the exceptions to items that are taxed by some jurisdictions but not others, such a groceries (except when consumed on the premises), services, freight, pharmaceuticals, medical supplies, items consumed in manufacturing and so on.

Usually, items for resale are not taxed, so the vendor has to get a resale certificate from the purchaser and keep it on file. Vendors are not necessarily able to distinguish between items bought for resale and taxable items from the same purchaser.

A company doing business in multiple jurisdictions might have to contend with not only the state tax rate, but also city, county, police jury (whatever that is) or other rates depending upon what the item is or how it is used (tangible property, utilities, service).

For the consumer, you probably will not realize just how much you are paying in taxes. That little nickel and dime extra adds up. Go ahead tell me, how much did you pay last year in entertainment taxes (movie ticket tax), hotel taxes, telephone taxes, utility taxes, and cable taxes. This makes it easier for the taxing jurisdiction to keep collecting more.

At least with income taxes, you file just once a year and you know how much you paid.

I have worked at a local business which installs roofs in both Oregon and Washington. We always paid WA sales tax on work in Washington. It is very difficult to comply exactly with the law because there are so many different taxing areas--state, county and city. Paying the correct amount depends on careful comparison of the exact address with the sales tax for the taxing district.
On the other hand, when I go to Washington to purchase anything, I do not pay their sales tax because I am from Oregon and therefore tax exempt. Complicated system.

Must admit that I have been patiently waiting for this particular biz closure knowing it would be a sign of the economy bottoming.

Years ago we looked for huge clouds of smoke rising from furniture stores as a sign.

Won't be long and we will again see the Tonkin boys on our TV screens.

John,
I get your point and I'm not an expert, but the real taxation comes in the form of the shrinking value of the dollar. Right now you and future generations are being taxed by the Fed as they bail out Europe.
Later this year we will probably be severely taxed for an incursion into Iran. None of us here feel threatened by Iran but we're doing it for Israel. The resulting spike could drive oil to $200 a barrel. I saw it was $111 the other day just on the possibility of a disruption in the Persian Gulf.
The first would be a Wall Street tax as they helped Europe get in trouble, and the second would be an Israel tax. The key link is that our so-called leaders care very little how it will affect the American taxpayers as the buying power of the dollar drifts ever nearer a fiscal graveyard.

I bought a mattress from MW a couple years ago, had it delivered (by them) to my Vancouver home, and paid sales tax (I still have the receipt).

Sherri happened to stop by the store when we were there: she was very pleasant, seemed genuinely amused that my five kids were rampaging throughout the store, and beat the competition's price handily.

I've paid sales tax on every big ticket item I've bought in Oregon-- Car, washer/dryer, fridge (AND I pay Oregon income Tax since I work in Gresham, but that's another issue-- once the toll booths go up, I'm getting a job in WA and I'll never have to set foot in Oregon again, thank God).

Nexus

Companies doing business in this state are subject to Washington tax laws when nexus is established. A few examples of nexus-creating activities include, but are not limited to:

Installing or assembling goods in this state, either by employees or other representatives

That's the point of my post -- the key issue is whether the delivery people were "representing" Mattress World.

Of course, as others have mentioned, if she had a warehouse over there, sh was instant toast.

I've gotten to wonder... I wonder if there's a bit of corporate tit-for-tat going on.

See, there's basically three BIG independent mattress store players in the Portland/Vancouver metro area: Mattress World, Bedmart, and Sleep Country USA.

Mattress World and BedMart both are Oregon businesses with no retail outlets in Washington State. But Sleep Country USA is headquartered in Kent with many Washington outlets. One has to wonder...if Sleep Country USA (or another retailer in Washington state...Mattress Factory Outlet, the former Vancouver Furniture?) got a little ticked off and decided to call up some friends in Olympia...

Jack -- I read in another article that the warehouse in WA was related to their charity, not the retail operation. Who knows?

When we bought mattress sets from MW two years ago, they were delivered in a plain white truck by guys who weren't wearing uniforms, if that helps at all. We don't live in WA though. They also set up the frames and put the base and mattress on them and took away our old ones.

If the Washington DOR is in Oregon collecting information are they not operating outside their jurisdiction ?

Sorry but I call bs on the claim that washington sales tax pushed mattress world out of business. No doubt that it was hard for them to close their doors but I imagine the reasons are more complicated than the "government killed my business" straw man.

As far as the nexus argument goes, have you not seen their delivery trucks? They have MATTRESS WORLD on the side in giant letters.

This company is crooked. I bought a memory foam mattress from them years ago. They swore that it was identical to a Tempurpedic. It was like sleeping on a brick. I bought a real Tempurpedic (which is great) and tried to return the Mattress World knockoff.

They refused. I took them to small claims court. In court, they told the judge that all memory foam in the world was made in a single factory in China. They won that case.

I did some digging and located the actual Tempurpedic factory in West Virginia. I went back to court and won. Judges don't like being lied to, and, apparently, neither does the State of Washington.

Glad they're out of business.


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Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 285
At this date last year: 137
Total run in 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269


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