Hello and welcome to The Unique CPA with your host, Randy Crabtree. We're committed to creating a thriving community of accounting professionals who are physically and mentally healthy, fulfilled, and energized by their work. Our ultimate goal is to elevate the reputation of the accounting profession and vastly improve the lives of those in it. The Unique CPA is brought to you by TriMerit, the specialty tax professionals. Today our guest is Jordan Goodman.
Jordan is a partner at HBM Group, a law firm in, well, I know he's in Chicago, it may be nationwide. I'll ask him that when we let him speak. He's a very sought after lecturer on multi-state tax issues, controversies, planning, anything related to SALT. He is out there, very entertaining. I've got a chance to see him speak a few times and he makes it exciting, which is, I think, one of the most important things when you're out educating because if it's not exciting, people aren't listening.
So Jordan, welcome back to The Unique CPA. Appreciate it. No, Randy, always great. And the compliment is mutual. I love watching you present. You're inspirational. You get the crowd involved. And we're the two of the people around the country that they put after lunch with a purpose. We're going to keep them awake. We're going to keep them alive. People are going to tune back in. It's great that we can do that. It's kind of difficult because we get that slot all the time. Right. We get that.
I get that slot a lot or I get the breakfast slot. So I guess they got a little more energy, but they're also just eight as well. So yeah, no, it's I think the last time I saw you, boy, were we in Dallas or something? I saw you speak. Denver? Denver? Maybe that's what it was. And I think you were right after lunch. Yeah. Yeah. In fact, I think we were eating lunch together on that one. I think we take that as a compliment. So it's exactly. I agree.
I ran into you just randomly in an airport last Orlando United Club. Look at you. I can't remember where I was. That's right. You were speaking at an event there. I was speaking at an event there and and it was cool to run into you there. So as I said when I welcomed you, I said, welcome back. You were on. You were actually my memory was at first 10 episodes guest, but you were episode number 12. So that was a while ago. I'm guessing today we're recording about episode 140. So wow.
Congratulations. That's fantastic. Yeah. It was. It was a while ago, but I had a great time when we talked last time and you and I always have a great time together and I think we'll get a few laughs in today. But the topic, not everybody's going to think is an exciting topic probably all the time. And it is. And believe me, when we talk about so it is all the state and local tax, you are a world or at least nationwide recognized expert in this from everybody I've talked to.
They all know Jordan Goodman. Last time we were talking about, if I recall, the wayfarer rules and the things that were coming out with that, we talked pre pandemic. Now, obviously, things have changed. Pandemics probably made some changes to salt, which we can get into. But just in general, you want to jump into some of the issues that you're seeing out there these days or things you're dealing with or positives or negatives?
Yeah, no, and I'm going to lead off with a non-tax case, OK, that can have tremendous ramifications on my world, state and local tax. This is the national pork producers case versus California. This is an obscure thing. U.S. Supreme Court came down with a decision. I believe there were seven different decisions issued by the nine justices. So, you know, it was controversial, all different parts. And I'll get into it. California passed. I think it was Prop 12.
They got all kinds of props out there. Prop 12 that said for pork, you cannot sell pork into California unless the pig was raised in what they defined as humane conditions and they define humane conditions as enough space to stand up, turn around, treated in a certain particular way. And the question was, is that a constitutional law? So what does it have to do with tax? Right. Yeah. So you have California's where pigs raised, not in California.
No. Right. Iowa, Illinois, Wisconsin, the Midwest, generally in the Midwest. And the question was, was this law discriminatory against interstate commerce? That starts getting into our hook about taxes. Right. Can a state pass a law that makes other businesses have to expend money to make sure that they raise hogs in a particular way?
Because it impacts interstate commerce and the Supreme Court in what's called a plurality decision, not a majority decision, because there are so many different parts. They ruled that California's law was okay under something that came out on a case that was obscure, never cited until the Wayfair decision. Oh, wow. So here's our tie in.
In Wayfair, what they ultimately held in Justice Kennedy's decision was that under the Pike balancing test, you have to measure the impact on interstate commerce versus the goal that is trying to achieve. And they ruled that having out-of-state retailers, remote sellers, collect tax under South Dakota's $100,000 of sales, no retroactivity, streamlined member was not a big enough burden to offset the obligation to do that. Pike's balancing test.
So Pike also has become the test before the US Supreme Court when measuring interstate commerce or when can you pass a law. So what does this mean? It means that states now can pass laws that seem to discriminate against interstate commerce, out-of-state sellers, as long as the benefit to the state is greater than the burden put on the interstate things. That will have a tremendous impact, I predict, will have a tremendous impact on the ability of states to tax out-of-staters.
So is this, this is a future thing. This is not like, I mean, it's not, we have to comply with it. Correct. But we haven't seen anybody argue with it or have any issues or audits come out of it. Again, this is in the context of a non-tax case, but I think it's going to happen. But we see even that decision, that wayfarer decision, being contested. There was just an article in Law 360 by a friend of mine, Maria Coca-Lenares, talking about the lasting impact of wayfarer and is it decided. Right.
And one of the questions, there's a couple cases before the US Supreme Court right now talking about ramifications from wayfarer, subject to tax. You know, one is whether a case of 1944 called Dilworth is still good law. And Dilworth was a kind of a goofy case. You can't assess a sales tax on an out-of-stater. You can assess a use tax. Okay. And they didn't have a use tax, so they couldn't assess it. Same thing happened in North Carolina on Quad Graphics. It's the name of the case.
Quad Graphics sells goods out of Wisconsin primarily. It's freight on board. So title transfers in Wisconsin gets shipped to parts of North Carolina. And the question is, can they assess them a sales tax on that? And they said, well, if you assess the use tax, absolutely you can. A sales tax, maybe not because the sale actually occurs outside of North Carolina. Because the question is, is this Dilworth case dead after wayfarer? Because wayfarer dealt with a South Dakota sales tax law.
I mean, so it's never going to die, which is good because you and I have some years left before we're done doing this. And I want to be busy and having fun during that period of time. And that's amazing. You do have fun, which is always exciting. Why don't we, you know, since we just talked about wayfarer, do you want to give a quick summation of that? And then what has happened in the last three years since we originally talked about it? Yeah, absolutely.
So wayfarer, going back to, and I'm not going to go deep down, but there was a case called National Bellis Assassin back in the 1960s that said you have to have physical presence constitutionally for a state to impose their taxing obligations on you. That was limited in a case called Quill, which came out in 1992 that said, due process, all you have to do is know or should have known that your goods would end up in the state. But for Commerce Plus purposes, you still required physical presence.
Wayfarer came along, South Dakota law that says you don't need physical presence. You need $100,000 of sales or 200 transactions in the state for remote sellers. Think about what happened in the internet between 1992 and 2018 when wayfarer was decided. Internet went crazy. It used to be catalog companies, but the internet went crazy. SIM card said, you know, as long as you have that level of economic nexus, that's also a sufficient reason and got rid of it.
You purposely availed yourself of the marketplace. You have significant non-tangible contacts with the state, and therefore that's enough. And what was crazy about this is really, you know, is limited to a number of states. Every state that imposes a sales tax now has a wayfarer law. The minimum is 100,000. It goes up to 500,000 in a state like California or Massachusetts.
And the other part of it, you see even South Dakota getting rid of the 200 transactions because that threshold is really low. If you think about it, you know, so explain that when you're saying 100,000, you have to have $100,000 of revenue in the state to create nexus. Sales and the definition changes. Is it taxable sales? Is it any sales? Is it less sales, returns and allowances? For the most part, think about it, just gross sales into the state. Into the state. Most common. Into the state.
What's the 200 transaction then, what they had that they want to repeal? So 200 transactions means, well, even if you only had $50,000 of sales in the state, if you had 200 sales into the state, that was also enough. Now you created this nexus. Right. But that threshold is so low that the states are realizing it's probably ineffective on its own. And they put the numerical amount of sales, not the number of sales.
Okay. So the number of sales may be going away across the board or most states, but the dollar value is what they're going to concentrate on. Okay. So that's a change then. All right. Sorry. Go ahead. No, no. And you think about it too, in South Dakota is a relatively small populous state. $100,000 of sales might be relatively good. But then you look at my home state of Illinois, we've got 10 times the population just in Chicago of what they have in South Dakota.
And our standard is $100,000 also. Is that legitimate or not? Right? Is that fair? Larger states, California, New York, Massachusetts, have higher thresholds. But again, $500,000, $100,000, not that big a deal. Right. Right. Every state has passed one. And then they ratcheted it up because of the burden on the small sellers. It's easy to go after a marketplace. Okay. A marketplace to use a name brand is Amazon. They sell their own stuff. They sell everybody's stuff.
If they have $100,000 of sales into a state, they have an obligation to collect their remit tax even for sales that aren't theirs. Oh, wow. So here, if you buy it online, most likely you're going to get hit with tax. That's the bottom line for everybody. Right. That makes sense. Unless you're a really small retailer that's independent, not selling through Amazon or I think even Walmart sells stuff for other people as well, too.
Yes. Sears, Walmart, all the big retailers have sites now that you can buy many things in. And I've dealt with a number of clients that have a particular product that aren't billions of dollars. There are hundreds of millions of dollars that want to become marketplaces for ancillary products. And here's some of the risks that we put out there for them. How about like an Etsy? That's a lot of really small sellers, but a big organization overall, I assume. Exactly.
And your memory is probably tricking you a little bit because Etsy was brought up in oral argument at the Wayfair argument. Really? As an example, that 200 transactions, their average transaction was I think $11. So for $2,200 worth of sales into a state on the transactional side, they would be subject to collect tax, which would probably cost them more from an administrative perspective than the tax dollars themselves.
Well, look at me, 61 years old, and I can remember something that just came into my mind that we talked about three plus years ago. All right. Exactly. I'm feeling younger now. This is nice. That's my job. Thank you. I appreciate it. So I got us down that Wayfair path. Anything else there or what else should we be talking about?
The other issue that we're going to see that is happening right now, and there's a couple of cases out there dealing with it, is not just state level nexus, but local taxes. City of Chicago, Louisiana, 1,500 taxing jurisdictions. What's the standard? If you have nexus with the state on the Wayfair, do you have nexus with each individual parish? Right.
And so there's a case called Halstead Beads, which is going at it kind of an awkward way through the federal courts, trying to say that that's not fair. Just having $100,000 into Louisiana doesn't mean that I have to comply with 1,500 different jurisdictions in Louisiana. Is that fair? Right. So basically we're dissuading people from starting small businesses that operate online and send product around the country. It is truly a cost of doing business.
And that's, you know, the goal is to get large. As you get large, you incur obligations from a number of areas. And sales tax is certainly one of them that you have to be cognizant of when getting into business. All right. Well, one thing, and so this just is a question that came into my mind, but you could tell me if this makes sense to discuss or not. But just the pandemic obviously created this whole remote workforce. We're hiring people all over the country now.
How is that affecting state and local taxes? You know, from a payroll tax standpoint, I think that's probably pretty straightforward. But then from, you know, sales or income tax, you know, if I hire one person in Montana or wherever, you know, now what does that do to my business? Well, there's two aspects of that. And you kind of nailed the first part of it is having an employee in a state performing services.
If you're not protected by the law, we've talked about public law 86272, which is a different topic for sellers of tangible personal property. There's no reason that you're not subject to tax in the state. For transient workers, there are states like my home state, Illinois, that passed a 30 day rule. So if you're not in the state, if you're going to stay less than 30 days, it doesn't create nexus for out of state companies. OK, that's fair.
If you have a remote employee where they've actually picked up and moved, they're going to be there for more than 30 days. And you're going to be subject to tax wherever they are. And that's a question I get probably weekly, you know, think about hiring Joe or Jane in North Carolina. What are the tax ramifications? Not only payroll tax, sales tax, income tax, franchise tax, personal property tax, what do they have there? Just all jumps on board as soon as you have a permanent employee there.
All right, so let me dig into that for a second. So I hire whatever state. What state would have the most restrictive, I guess, rules, California or something? I don't know. California, New York, Alabama right now is really a couple of cases in Alabama that I'll tell you about. But they say if you're in the state for a day, the out of state company has nexus regardless of what you're doing. And that's, you know, think about that from people in our profession. We go out to see clients.
We do all that kind of stuff. Now, there's a, you know, de minimis amount. You could always argue it's de minimis, but certainly we are all at risk when we do work for our clients or meet with our clients or perform services. Not in our home state. Right. It's a possibility, but that's hard to trace. I would assume. But let's say I hire a person in Alabama and they're doing, you know, whatever, project management work, but none of it is for clients in Alabama.
We're not generating any revenue in the state of Alabama. We just have an employee that works there. Am I still have an income tax issue to deal with? Well, potentially, potentially not. The good news is the majority of states have gotten away from the property and payroll factors.
So even if you have nexus in a state, an obligation to file a return, if you don't have sales into the state, then your numerator zero and you have no liability under than a minimum tax or a filing obligation, that would be it. But the other part of this, I think is really important. And we're dealing with a number of cases dealing with this is where does the remote worker actually owe tax this convenience of the employer test that you see out of New York, a couple of cases out of Alabama.
Just recently we had a just just by way of example, Alabama business, Alabama employee during the pandemic moved to Idaho. And I know a bunch of people who moved to Idaho working full time in Idaho. Alabama argued so far and successfully so far that Idaho resident owes Alabama taxes on their wages. Really? And they never go back to Alabama. They live in Idaho full time. Direction and control out of Alabama and the convenience of the employer test.
So I'm allowing you to go wherever you want, but you're still reporting to us in Alabama. All right. So but I don't even know. I assume Idaho has an income tax. If I'm paying income tax in Idaho, I'm going to get a credit in Alabama or vice versa for what I'm paying to the other states. So hopefully it's not a huge effect. But that's the rub. Yeah. But now what states are doing in California just had a case like this and Illinois has had a case like this.
They will only give you a credit if the rules from the taxing state were enforced and you would owe a tax in your state. Okay. So let me explain that in the context of our Idaho question. Alabama says it's where your direction and control is from. All of your bosses are in Alabama. You used to work in Alabama. Now you work in Idaho. What's Idaho? If I have forced my Alabama rule in Idaho, where's your direction and control? Where are your bosses located? They're not in Idaho.
Okay. Therefore you would owe no Idaho tax based upon Alabama's rules. And therefore there is no credit given for the taxes you pay in Idaho. How about that for a double whammy? All right. This is crazy. I'm going to retire. Okay. But this is going on now in New York and New Jersey are fighting right now. There's a lot of people that live in New Jersey that don't go into the city anymore. And New York is saying convenience of the employer rule.
You still have an obligation to pay New York taxes and New Jersey is saying we're not giving you credit because there are rules. You're a resident in New Jersey. You're not a resident in New York. You're not going to New York. We're not going to give you a credit. And that is not a good one. Those taxes could go through the roof. They're 9, 10, 11, 12%. They're super high. Yeah. All right. This is crazy. And this is all based upon and really you nailed it.
We used to have remote workers, people went around the country. But right now it's really based upon the fact that the pandemic allowed people to scatter around the country. So many people are working from places that they never were before. Pandemic spread them all around and these issues are starting to filter up and states are getting aggressive on it. All right. Sorry. Well, I took us down another path there. We can get back on track.
What are some other hot topics you think we should discuss today? Well, certainly you're still battling on the income tax side on the transition from cost of performance to market-based sourcing. So that was historically cost of performances from the 60s. Most states adopted it under Yedipa, the Uniform Division of Income Tax Purposes Act. When you're selling things other than tangible personal property, what we do, a cost of performance is an expense side look.
It's where I'm performing the services where I incur expenses to generate the service. So for accountants, lawyers, it's where we're located. That allows you a business to exploit the marketplace of a destination state. So I could be in Illinois, all of my customers, all my clients are in Iowa. If Iowa had cost of performance, they would get nothing of my income, even though my work is all being done for Iowa clients.
So 15 years ago, and now it's trickled to over half the states, have changed from cost of performance to market-based sourcing. Market-based sourcing is a customer-based. Where is the market? Where are my customers located? Which seems on its face, simple. It's also from a political perspective, right? You're exploiting my marketplace, selling to my people, therefore you should pay a tax on my state.
It is if it's singular, but for what we do, for example, we provide consulting services, accounting services to multi-state businesses. Where does that service really go? Where's the benefit? And they have these different where the benefit is delivered, where the service is delivered, where the benefit is enjoyed. There's a variety of definitions of trying to find what the marketplace is. And really, it's kind of a made-up system. We don't know necessarily.
And it defaults to where did you send the bill? And what's funny, you'll find this ironic. The statutes speak of billing address. You're and I are about the same age. I'm going to ask you a question. How many bills do you send out through the mail? Zero. Exactly. I send everything electronically, either through their billing system or through an email. They don't even have billing addresses for anybody because it doesn't matter anymore. But the statutes still call for billing address.
Okay, but if they're going to buy billing address, maybe that's fair. Maybe it's unfair. The statutes are unclear. And the issue is some states want to jump on to the market-based sourcing bandwagon without changing their statutes. Okay, so there's a case out of Texas called Sirius XM, right? Oh, yeah. They have basically a cost of performance statute. They tried to argue that Sirius XM, which only produces one show in Texas, that's Willie's Roadhouse. Everything else is done outside of Texas.
So they gave a small little piece to Texas. Texas want to argue it's the number of subscribers in Texas, which would be market-based sourcing. But they lost it to Texas Supreme Court because their statute is the old statute and they haven't changed it yet. All right. Are they going to change their statute then to go back to this? If they're smart, but trying to get legislators to change, to even focus on state taxes. Seriously, Randy, I love it. I'm in a minority of one. All right.
So let me try to wrap my mind around this just from kind of like what you and I do. So we travel around the country. We're educating whoever, CPAs, usually me, UCPAs, and other people as well. I'm not selling when I'm out doing this. It does generate revenue. So if I'm speaking in 12 different states this year, what does that do for me tax-wise?
Well, and here's the question, and I don't want to get personal, but are you being, whether you're generating work, which is solicitation, or you're performing services that you get paid for are two different things. Are you getting paid? Let's assume, okay, I do get paid at times when I'm speaking. But in addition, I don't solicit business, but I explain what Trimerit does when I'm out there, but that's a very short one minute of my entire presentation. So I guess it's two different things.
And not all salespeople are successful on their sales. They go and pitch their products, but they don't generate necessarily revenue. Sometimes you do that, and this is what we hope for, is that you'll have something in the future where people will remember you. They'll have a question. You talked on that. It's not solicitation, give me your work today. It's give me your work tomorrow. Does that still qualify as solicitation? Most likely it does.
It's advertising, it's promotion, and those things. And we're getting compensated. I'm actually a W2 employee, so I get paid. Now it varies how I get paid based upon how my year is going, but I get paid for every minute that I'm working or not working. Right. All right. So, well, I just want everybody to know this is my last day. I'll be retiring. Jordan can never retire because we need him because these rules are too complicated, and I just don't want to think about them anymore. All right.
I will not retire. I just rescinded my retirement. That is not going to happen at this point, but I'm glad that you personally exist and you cannot retire because we all need you, like I just said. But the one thing that seems to have been a big issue, I don't know if it's a big deal in the salt arena or not, but after the Tax Cut and Jobs Act, when we got changed, that's where it came, right?
The $10,000 after the Tax Cut and Jobs Act, where limitations to $10,000 of tax on your Schedule A. All these states or a lot of states now came out with this pass-through entity tax. Is there anything we need to be aware of with that? The first thing I tell people about it is that it's not one size fits all, right? There are people that make sense for and people that it doesn't make sense for. And to the extent that you're a multi-state business, the compliance costs can be quite hefty.
That analysis has to be done upfront as to whether it's a benefit or not. And the second part of that is that the states, this is one of those things that was not a federally mandated, this is what a PTE law should look like. They just said, we'll allow them, we'll allow the states to do this. And the states have gone in a number of different ways. And there are tremendous differences between how each state allows you to do it.
When you make the election, how you do the election, what benefits you get, what credits you get, and who gets the credits for taxes paid elsewhere. And I advise you, it's something that we really don't get involved in because truly it takes knowledge of a number of state-specific rules on this very small topic. And I find accountants have a better grasp of that. But it just adds to the complexity.
So before everybody says, I want to take advantage of this, they really need to sit down with their consultant and say, how much can I save? How much is it going to cost? How long is it going to last? Yeah. I know it's a topic, at least, but Illinois initiated this two years ago, I think. And so it's something I've looked at as well. And we are like you, we are Illinois-based, but we have people all over the country.
And so from that standpoint, it probably is too much time and effort for us to deal with that. It's a lot. I mean, the first question my managing partner asked is, is this good for us? And I go, nope, move on. All right. There you go. Easy answer. So I assume if I asked you, you're going to tell me the same thing. That's right. That's right. All right. But I'm not going to take that as advice because we are not, we don't have that contract in place. All right.
So I think whether I want to or not, I think we probably need to start wrapping it up because I would love to keep talking. But any final thoughts on solved issues before we go to a couple of last questions? No, no, no. There is still stuff going on. There's decisions being made every day. It's hard to be mindful of everything that goes on a nationwide basis. Pick the big states and then send me an email if you could. I write about this stuff all the time. It's kind of fun to do.
It's just lots going on. Yep. All right. So make sure you have somebody knowledgeable in your corner that you can have help you with these things. All right. So we went through this last time, but we're going to do it again. We're talking all business stuff today. What are your outside of work passions? What do you enjoy doing when you're not dealing with state and local taxes? Well, I've become more of an avid golfer than I think I was three or four years ago.
Certainly, the pandemic lent itself to that. There's lots of free time. Golf courses were wide open and no one was really around you. You could limit it, your exposure to anybody else. So during the pandemic, I've become much more of a golfer. We continue to RV around the country for college football games, which is also a passion. And then just talking tax is kind of kind of silly, but it's kind of fun. No, I agree. I do the same thing.
So from an RV standpoint, going for, I can't remember, University of Illinois or what's your school? My wife and I both have degrees from Illinois. All three of our daughters have degrees from Illinois, and that's only two and a half hours away. So that's the number one spot. We all have connections there, but we spend some time every year down in the South, SEC football games.
Since the last time we talked, we bought some space down in Alabama where we keep the RV and spend a good portion of the winter down there. So Illinois would be number one, and then some SEC schools. Indiana, my undergrad. Always on top of the list. All right. Indiana as well. And don't forget about those Alabama nexus rules and state tax rules. Trust me, that is of utmost concern. All right.
And then if anybody wants to, and I know you're very willing to talk to people about any questions they have. If people wanted to get a hold of you or find out more about what you're doing, where would they reach out? Well, easiest way is probably email jgoodman at hmb. Law.com for Horace Marcus and Burke Law, or HMB Legal Consulting is our new marketing name. Cell phone 312-515-3225. That's the way to get a hold of me. Don't try the office. Look at you.
Look at you giving out the cell phone and everything. Whatever. You know, our 10 million listeners are all going to be calling you at once now. I hope they do. So you also have this email you send out. I don't know if it's weekly where you have some funny, what's that called? Or what are you doing there? It's called the Hump Day Humor. It started in the pandemic. So probably after the last time we spoke on this forum, I put it out there.
The first one was tricks from working from home because I work remotely, you work remotely. Here's some tricks that I've learned over time of how to deal with family at home. And it's evolved into a weekly attempt at bringing humor to people's lives. So I usually started off with a little story about something, mostly expressions I've been on, the history of expressions. I throw in 10 non-political, non-denominational, clean humor with a little commentary.
And then, of course, I put a little plug for HMB at the end. But it's great as there's literally thousands of people now that I send this to. And I think in all of the time, I've had maybe 10 people say, take me off the list. So it's been great. It's fun for me. And apparently it's great. I won't say it's great. It's good reading for people that I know. Oh, I believe me, I enjoy it. I look forward to it.
I usually will copy one or two things and send it out to a text to my family because they're funny. And I really appreciate you doing that. So at a minimum, if nothing else, email Jordan and get on that list because it's a nice break up the week, laugh on a Wednesday morning or whatever time it comes out. Exactly. Oh, that's really good. I forgot that that's a new thing. Oh, it is great. I laugh every time I look at it. So good. All right. Well, Jordan, I appreciate you being the repeat guest.
We will definitely, as long as we're both still working, we will schedule another one in a few years and do this again. So hope to see you in an airport again soon. Well, I'm sure we'll run into each other at a conference somewhere this year. So Jordan, it was awesome having you on and great talking with you. All right. Good talking to you, Randy. Bye-bye. Thank you for joining us today on The Unique CPA.
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