Tax Problem Attorney Blog

The California State Board of Equalization (BOE or SBE) announced almost one year ago that medical marijuana dispensaries are not exempt from collecting and paying California sales tax. The announcement resulted from a hearing before the BOE involving Berkeley Patients Group. In that case the BOE decided that medical marijuana was not exempt from sales tax as a medicine. The decision was not surprising in light of a previous notice issued by the BOE that medical marijuana dispensaries were not exempt from collecting and paying sales tax.

Fast forward one year later. Our tax attorneys are fielding inquiries from a number of medical marijuana dispensaries who are undergoing sales tax audits by the BOE. The M.O. of the BOE seems to be to stand at a discrete location outside of the clinic, and count the number of people coming in the door per hour. The Board then compares that to the clinic's records of the number of patients, and if there is any discrepancy it calculates the value of an average "sale," multiplies that by the number of alleged unrecorded patients per day, and projects that amount over a (generally) three year audit period.

Of course this projection by the SBE is rarely accurate, and fails to take into account a number of reasons that the dispensary's records don't match. For example, discrepancies can exist because:

1. Not everyone who comes into the clinic is a member, or actually fills his prescription
2. The number of patients entering the clinic on the particular day that the BOE is counting may be higher than average because the clinic was having a good day
3. The BOE may be using an inaccurate sale price which results in an overstatement of receipts.

There are many other reasons why the BOE estimates can be inaccurate. Luckily there are many avenues for appeal of a BOE determination. However, an ounce of prevention is worth a pound of cure, and proper tax representation during the initial sales tax audit may prevent problems from arising. Information on sales tax audits and sales tax appeals in general is available on our website, click here to view. Managers of medical marijuana cooperatives and collectives should also be aware that if the BOE determines that sales tax is due and the dispensary fails to pay they could be personally liable pursuant to California Revenue and Taxation Code Section 6829.

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The California State Board of Equalization (BOE or SBE) has scheduled a public hearing on an amendment to Regulation 1668, Sales for Resale. According to the BOE the purpose of the amendment is clarify the acceptable language in purchase orders taken by a seller in support of a valid resale certificate.

One method of overcoming the presumption in California sales tax law that any sale of tangible personal property is subject “at retail” and therefore subject to sales tax is to obtain a valid resale certificate from the purchaser at the time of the sale. Regulation 1668, Sales for Resale provides that if a purchaser wants to issue a blanket resale certificate, it may do so, and state on the resale certificate “see purchase order.” The purchase order then has to state that the sale was for resale.

Under the proposed amended regulation the purchaser can use the phrase “non taxable,” “taxable = no” or other similar terminology on the purchase order to indicate that the sale is for resale.

Making sure to obtain a qualified resale certificate is one way to alleviate a variety of sales tax problems. If your company has sales tax problems contact the sales tax lawyers at Brager Tax Law Group, A P.C.

An article in the California Franchise Tax Board (FTB) November 2008 Tax News publication highlighted the other tax problems that can arise from a tax audit by the California State Board of Equalization (SBE or BOE). Many sales tax audits by the BOE result in a changes to a company’s gross receipts. The BOE tax auditors have instructions to provide the FTB with audit reports which show that not all sales were reported. In turn the FTB may open an income tax audit resulting in additional state income tax due.

Although not mentioned in the FTB Tax News article, when the FTB is done with its tax audit it routinely provides that information to the Internal Revenue Service (IRS), and the IRS may, in turn, begin a federal income tax audit. With all of these tax audits, and with potential tax penalties and interest there is the possibility that a business could wind up paying more to the taxing agencies then it took in.

For these and other reasons it is important to have a qualified tax attorney represent your business; especially if you believe that there are any significant issues on your California Sales tax returns. Feel free to call the tax problem attorneys at Brager Tax Law Group, A P.C.

On Nov. 7th I will be speaking at the at the 2008 Annual Meeting of the California Tax Bar on Sales and Use Tax Audits: A Guide for Tax Professionals. My co-panelist will be Robert Tucker, a tax specialist from the California State Board of Equalization (SBE or BOE). We will be discussing how to handle a sales tax audit including procedural rules and tips for dealing with the SBE.

The 2008 Annual Meeting of the California Tax Bar runs from Nov. 6 through 2008, and attracts hundreds of tax attorneys, and tax accountants from around the state. Additional topics include:

Criminal Tax Investigations
Offshore Enforcement
California Tax Litigation
SBE New Rules for Tax Appeals
Federal and California State Trust Fund Recovery (TFRP) Penalties

and much more.

For more information see http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=11620.

The California State Board of Equalization (BOE or SBE) was handed a defeat by the California Appellate Court in Dell Inc. v. Superior Court of San Francisco 159 Cal.App.4th 911 (2008) . The court held that the value of the Dell service contracts purchased by consumers was not subject to California Sales Tax even though the price of the contract was not separately stated in the invoice. The case has potentially wide reaching application to other California sales tax audits.

The facts in Dell indicated that the service contracts were optional, and that they were priced separately from the underlying computer equipment. For example, a consumer purchasing a computer could check a box on Dell’s website to add a service contract for an additional $x. The amount would be added to the purchase price but the invoice issued to the customer would indicate a lump sum price for the computer and the service contract. Everyone agreed that if sold separately the service contracts were intangible property, not subject to California sales tax. It was also agreed that if the Dell service contracts were sold with computers they would not be subject to California sales tax provided that the price of the sales contract is separately stated in the invoice or other contract of sale.

The BOE argued, however, that in the absence of a separate statement of the charge for the service contracts they are subject to California sales tax. The Court disagreed, and found that the transaction was a “mixed transaction” involving separately identifiable transfers of goods and services. It differentiated the sale from a “bundled transaction” involving goods and services that are inextricably intertwined in a single sale. As such as long as the value of the separable identified parts can be established then the value attributable to the transfer of intangible property or services is not subject to California sales tax.

If you have California sales tax problems contact Los Angeles, California State Bar Certified Tax Specialist Dennis Brager.

By law the California State Board of Equalization (SBE) is required to publish each quarter a list of the 250 sales and use tax debts owed to the California. In order to make this list the California sales tax debt must be over $100,000. However, the tax debt will not be listed if the taxpayer has contacted the SBE and made an installment agreement, or other arrangements such as an offer in compromise.

For the last quarter of 2007 the California sales tax debts on the list ranged from $17.5 million down to a low of “only” $362,297.09. Except for admitted sales taxes liability reported on a sales tax return filed with the California State Board of Equalization, the SBE can not generally bill additional sales taxes without affording the taxpayer a hearing before the 5 member Board of Equalization. For more information about the appeals process read our article.

If you have a California Sales Tax problem in excess of $75,000 please call California sales tax problem attorneys at Brager Tax Law Group, A P.C.