§ 105-164.8. Retailer's obligation to collect tax; remote sales subject to tax. - North Carolina Statutes

§ 105‑164.8.  Retailer'sobligation to collect tax; remote sales subject to tax.

(a)        Obligation. – Aretailer is required to collect the tax imposed by this Article notwithstandingany of the following:

(1)        That the purchaser'sorder or the contract of sale is delivered, mailed, or otherwise transmitted bythe purchaser to the retailer at a point outside this State as a result ofsolicitation by the retailer through the medium of a catalogue or other writtenadvertisement.

(2)        That the purchaser'sorder or the contract of sale is made or closed by acceptance or approvaloutside this State, or before any tangible personal property or digitalproperty that is part of the order or contract enters this State.

(3)        That the purchaser'sorder or the contract of sale provides that the property shall be or is in factprocured or manufactured at a point outside this State and shipped directly tothe purchaser from the point of origin.

(4)        That the property ismailed to the purchaser in this State or a point outside this State ordelivered to a carrier outside this State f.o.b. or otherwise and directed tothe purchaser in this State regardless of whether the cost of transportation ispaid by the retailer or by the purchaser.

(5)        That the property isdelivered directly to the purchaser at a point outside this State.

(6)        Any combination inwhole or in part of any two or more of the foregoing statements of fact, if itis intended that the property purchased be brought to this State for storage,use, or consumption in this State.

(b)        Remote Sales. – Aretailer who makes a remote sale is engaged in business in this State and issubject to the tax levied under this Article if at least one of the followingconditions is met:

(1)        The retailer is acorporation engaged in business under the laws of this State or a persondomiciled in, a resident of, or a citizen of, this State.

(2)        The retailermaintains retail establishments or offices in this State, whether the remotesales thus subject to taxation by this State result from or are related in anyother way to the activities of the establishments or offices.

(3)        The retailersolicits or transacts business in this State by employees, independentcontractors, agents, or other representatives, whether the remote sales thussubject to taxation by this State result from or are related in any other wayto the solicitation or transaction of business. A retailer is presumed to besoliciting or transacting business by an independent contractor, agent, orother representative if the retailer enters into an agreement with a residentof this State under which the resident, for a commission or otherconsideration, directly or indirectly refers potential customers, whether by alink on an Internet Web site or otherwise, to the retailer. This presumptionapplies only if the cumulative gross receipts from sales by the retailer topurchasers in this State who are referred to the retailer by all residents withthis type of agreement with the retailer is in excess of ten thousand dollars($10,000) during the preceding four quarterly periods. This presumption may berebutted by proof that the resident with whom the retailer has an agreement didnot engage in any solicitation in the State on behalf of the seller that wouldsatisfy the nexus requirement of the United States Constitution during the fourquarterly periods in question.

(4)        Repealed by SessionLaws 1991, c. 45, s. 16.

(5)        The retailer, bypurposefully or systematically exploiting the market provided by this State byany media‑assisted, media‑facilitated, or media‑solicitedmeans, including direct mail advertising, distribution of catalogs, computer‑assistedshopping, television, radio or other electronic media, telephone solicitation,magazine or newspaper advertisements, or other media, creates nexus with thisState. A nonresident retailer who purchases advertising to be delivered bytelevision, by radio, in print, on the Internet, or by any other medium is notconsidered to be engaged in business in this State based solely on the purchaseof the advertising.

(6)        Through compact orreciprocity with another jurisdiction of the United States, that jurisdictionuses its taxing power and its jurisdiction over the retailer in support of thisState's taxing power.

(7)        The retailerconsents, expressly or by implication, to the imposition of the tax imposed bythis Article. For purposes of this subdivision, evidence that a retailerengaged in the activity described in subdivision (5) is prima facie evidencethat the retailer consents to the imposition of the tax imposed by thisArticle.

(8)        The retailer is aholder of a wine shipper permit issued by the ABC Commission pursuant to G.S.18B‑1001.1.

(c)        Local Tax. – Aretailer who is required to collect the tax imposed by this Article mustcollect a local use tax on a transaction if a local sales tax does not apply tothe transaction. The sourcing principles in G.S. 105‑164.4B determinewhether a local sales tax or a local use tax applies to a transaction. A"local sales tax" is a tax imposed under Chapter 1096 of the 1967Session Laws or by Subchapter VIII of this Chapter, and a local use tax is ause tax imposed under that act or Subchapter.  (1957, c. 1340, s. 5; 1987 (Reg. Sess., 1988), c.1096, s. 4; 1991, c. 45, s. 16; 2001‑347, s. 2.10; 2003‑402, s. 13;2003‑416, s. 24(b), (c); 2009‑451, s. 27A.3(a).)