On January 16, Hawaii introduced H.B. 1651 that, if enacted, would add click-through and affiliate provisions to its general excise and use tax laws. Hawaii’s proposed legislation is among several states in the past year that have considered click-through nexus legislation. If enacted, the legislation would take effect on July 1, 2015.
In the proposed legislation, a seller would be presumed to have click-through nexus if the seller enters into an agreement under which a person in Hawaii, for consideration, directly or indirectly refers potential purchasers of tangible personal property to the seller. The referral can be via an internet link, internet website or otherwise. The otherwise may prove key. That is, what about an email blast or a phone call initiated by an affiliate marketer working in Hawaii on behalf of an e-retailer with no physical presence in the state otherwise?
The bill introduced for consideration contains a rebuttable presumption that the activities of the person in Hawaii is significantly associated with seller’s ability to establish or maintain a market in Hawaii. Sellers would bear the burden of showing that the activities were not substantially associated.
Under the affiliate provisions, a seller would be presumed to be engaged in business in Hawaii if the seller is a member of a commonly controlled group, as defined by IRC Section 1504, that includes an entity that has a substantial nexus with Hawaii. In addition, the entity must sell a similar product line as the seller or the entity uses similar or substantially similar trade mark, service mark or trade names.
Stay tuned for updates as the bill progresses through Hawaii’s legislature.