December 8, 2020

How Working from Home Affects State Taxes in Missouri and Illinois

With many companies having a remote workforce for most of 2020, there are a lot of questions around the state tax treatment for employees working from home. Each state handles their withholding differently, but below we discuss how Illinois, Missouri and St. Louis income tax withholding is currently treated at the state and local level.

Illinois Income Tax Treatment

In general, Illinois withholding is based on where the employee is working. Below is an outline of common questions and answers around Illinois income tax withholding, according to the Illinois Department of Revenue (DOR) Publication 130.

When are companies required to withhold Illinois income tax from an employee’s paycheck?

Employers must withhold Illinois income tax when federal income tax is withheld from compensation. Compensation is paid in Illinois when the employee’s services are “localized” in Illinois. This statement applies to all individuals except qualifying residents of Iowa, Kentucky, Michigan, and Wisconsin and military spouses.

When is compensation considered paid in Illinois?

The following are general rules for when compensation is paid in Illinois for tax reasons.

  • If all of an employee’s services are performed in Illinois, then compensation is considered paid in Illinois and subject to Illinois income tax withholding.
  • If some of the employee’s services are performed outside Illinois, but the services outside Illinois are incidental to the services performed inside Illinois, then compensation is considered paid in Illinois and subject to Illinois income tax withholding.
  • If the employee is an Illinois resident and neither of the rules above apply and no other state’s taxes are withheld, then compensation is considered paid in Illinois and is subject to Illinois income tax withholding.
  • If the employee’s compensation is not localized to any state under any of the rules above and the employee performs significant service within Illinois for more than 30 working days, and the service performed within Illinois is nonincidental to the employee’s service performed outside Illinois, then a portion of compensation is considered paid in Illinois and subject to Illinois income tax withholding. The portion of compensation subject to Illinois withholding equals the total compensation paid to the employee multiplied by a fraction equal to the number of working days the employee spent within Illinois during the year divided by the total working days of the year.

What is considered incidental?

The Illinois DOR defines “incidental” as any service which is necessary to or supportive of the primary service performed by the employee or which is temporary or transitory in nature or consists of isolated transactions. The incidental service may or may not be similar to the individual’s normal occupation as long as it is performed within the same employer-employee relationship.

An employee who normally performs all of their service in Illinois may be sent by their employer to another state to perform services which differ from their usual work, or they may be sent to do similar work. As long as the service is temporary or consists merely of isolated transactions, it will be considered to be incidental.

What is considered a working day?

The Illinois DOR defines “working days” as all days during the tax year in which the individual performs duties on behalf of his or her employer. Days in which the individual performs no duties on behalf of his or her employer, such as weekends, vacation days, sick days, and holidays, are not working days.

A working day is spent within Illinois if:

• The individual spends a greater amount of the day performing services on behalf of the employer within Illinois rather than not, without regard to time spent traveling, or

• The only service the individual performs on behalf of the employer on that day is traveling to a destination within Illinois, and the individual arrives on that day.

Example: Jane is a Missouri resident who earned $70,000 in wages from her employer for the tax year. During the year, she performed services for her employer for 40 days in Illinois out of 250 total working days for the year. Accordingly, 16% (40 working days divided by 250) of Jane’s wages, or $11,200, was paid in Illinois and is subject to Illinois income tax withholding.

When are employers not required to withhold Illinois income tax?

According to the Illinois DOR, unless you enter into a voluntary withholding income tax agreement, you are not required to withhold Illinois income tax from the following:

  • Compensation paid to residents of Iowa, Kentucky, Michigan, and Wisconsin, due to reciprocal agreements with each of these states, and certain military spouses;
  • Compensation paid to a non-resident employee who has performed less than 31 days of service in Illinois and whose compensation is not localized in Illinois
  • Compensation paid to a non-resident employee whose service is performed entirely in another state;
  • Compensation paid to an Illinois resident whose service is performed entirely in another state, and the compensation is subject to withholding in another state;
  • Other specific situations as described in Illinois Department of Revenue Publication 130

If an employee lives in another state, are employers required to withhold income tax for that state?

If your employee is “paid in Illinois” and is a resident of Iowa, Kentucky, Michigan, or Wisconsin, you may, but are not required by Illinois law, withhold income tax for the other state. If your employee is a resident of a state with whom Illinois does not have a reciprocal agreement (i.e., Missouri), you must withhold Illinois income tax on all income that is paid in Illinois. You may be required to withhold tax for another state in which the employee works or resides. Contact those states to determine if you are required to register as a withholding agent.

Missouri Income Tax Treatment

Missouri income tax treatment is a bit simpler for remote employees than Illinois. According to the Missouri Department of Revenue (DOR), any time an employee is performing services for an employer in exchange for wages in Missouri, those wages are subject to Missouri withholding. This applies to remote workers where an employee is located in Missouri. This rule also applies when the employer instructs the employee not to work but the employee is still being paid.

If you have employees performing services for wages in Missouri, those wages are subject to Missouri withholding, regardless of where you as the employer are located.

Earnings Tax Treatment in St. Louis

According to the St. Louis Collector of Revenue, employees who have been working remotely due to COVID-19 or in conjunction with the acting City of St. Louis Health Commissioner’s Order should be treated as working at their original, principal place of work for earnings tax purposes.

The acting Health Commissioner’s Order required all non-exempt City of St. Louis employers to “facilitate employees working remotely” but is completely neutral to the location of the remote work site. It does not order employees to work outside the City nor require any individual who is employed outside the City, to work remotely in their City Home.

Employers in the city of St. Louis should continue to withhold on those employees in the same manner as they did prior to the temporary relocation of their employees.

Under these circumstances, days worked out of the city due to a temporary reassignment caused by COVID-19 or the acting Health Commissioner’s Order may not be included in the Non-Residency Deduction formula on Form E-1R when claiming a refund for tax year 2020.

Due to the COVID-19 remote working environment, state and local tax withholding is complicated and changes or clarifications can be made at any time. Contact an Anders advisor below to discuss your specific tax situation.  

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November 24, 2020

Regan E. Goldasich

November 3, 2020

Blues Captain Leaves for Sin City: How State Income Taxes Played a Role in Alex Pietrangelo’s Departure

On January 3, 2019, no one could have predicted that the then St. Louis Blues captain, Alex Pietrangelo, would be hoisting the Stanley Cup at the end of the 2019 season. In early January 2019, the Blues were in last place in the NHL, but the team turned their season around with the help of the song “Gloria”. A little over a year later, Blues fans could not imagine Alex Pietrangelo wearing anything but a Blue Note as he headed towards unrestricted free agency. But in October 2020, the former Blues captain inked a seven-year, $61.6 million contract with the Vegas Golden Knights.

NHL Salary Cap Takes a Hit

It is presumed that one of the major sticking points in the Blues negotiation with Pietrangelo was the amount of signing bonuses included in any potential contract. The ongoing pandemic has limited the cash flow of many businesses throughout the world, and the NHL is not immune to that reality. Before the pandemic hit, the NHL salary cap was anticipated to increase substantially for the upcoming season, but the league decided to keep the salary cap flat for the foreseeable future. The flat salary cap put the Blues in a bind when it came to fitting Pietrangelo in under the salary cap for the upcoming season, which further complicated negotiations. In his deal with Vegas, he will receive $35 million of signing bonuses throughout the life of the seven-year contract, which likely has major tax benefits for the former Blue.

State Income Tax Comes into Play

Nevada is one of nine states that does not have any state income tax. Athletes’ are generally subject to a “jock tax” in states and cities in which they work.  The athletes’ salaries are commonly apportioned to various states and cities using the “duty days” method. This jock tax is levied by states and cities on athletes who play or practice while in town. Assuming Pietrangelo becomes a Nevada resident rather than remaining a Missouri resident, the structure of his contract provides major tax benefits. This means that half of Pietrangelo’s games will be allocated to Nevada, a no income tax state. In addition, signing bonuses are exempt from the Duty Day calculation provided certain criteria are met. Instead, signing bonuses are allocated to an athlete’s resident state. In this case, all of the $35 million in signing bonuses will be allocated to Nevada and not be subject to state income taxes. If he had remained a Missouri resident and signed a similar contact with the Blues, Pietrangelo’s signing bonus would result in Missouri state income taxes of roughly $1.9 million.

For professional athletes, tax compliance and planning can be an issue when it comes to filing in the proper tax authorities. The Anders Sports, Arts and Entertainment Group has the knowledge to help athletes with tax compliance and planning. Contact an Anders advisor below to learn more.

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October 20, 2020

How Real Estate and Construction Contractors Can Avoid Overpaying Sales and Use Tax

Whether you’re a real estate broker and independent contractor or a general or sub-contractor working in construction, sales tax for contractors can be complex and difficult to understand. There are many factors that affect taxability, and real estate and construction contractors may also be subject to exemptions based on the customer and the property’s function. In this time of uncertainty with the COVID-19 pandemic affecting many businesses, sales tax refunds can help recoup over-paid sales tax and put more money in your pocket.

Are contractors exempt from sales tax?

There are many circumstances where exemptions are allowed but understanding sales tax liability for a construction contractor can be a challenge. States generally do not consider contractors to be making taxable sales, but providing tax exempt services. Contractors are typically treated as the final users and consumers of materials and supplies they use on construction contracts and are liable for sales tax on purchases of those materials and supplies used in a contract. However, many states provide special treatment for construction contracts with exempt organizations if the purchases are related to the entities’ exempt functions and activities.

When can an exemption certificate be used?

In both Missouri and Illinois, a contractor’s purchases of tangible personal property can be exempt with a flow-through exemption, provided a contractor is contracting with an exempt organization. The contractor can obtain an exemption certificatefor purchases of tangible personal property and materials used for a specific contract for the exempt entity. In Missouri, a project exemption certificate is typically needed from the exempt entity and provided to the vendor when making such purchases. Not all states allow a flow-through exemption from exempt organizations, and each state’s rules need to be reviewed individually.

In Missouri, contractors are exempt on purchases of tangible personal property for use out-of-state on a construction contract with an entity authorized to issue an exemption certificate under that state’s law. In Illinois, tangible personal property sold to contractors who resell it as tangible personal property can be treated as a purchase for resale.

Are all contracts treated the same?

Determining the structure of the contract can also impact the taxability. A lump-sum contract will generally leave the contractor responsible for the tax on materials. Whereas, with a separated contract or a cost plus contract the sale may be deemed as part property and part sale of service which may be treated differently on the contractor’s sale to their customer.

These are just a few sales tax nuances and opportunities available to contractors. A clear answer to specific questions on a state-by-state basis will need to be determined by reviewing each state’s rules and regulations. Anders has the resources and expertise to quickly help determine opportunities for you.

A sales and use tax refund review can help find overpayments to keep more money in your business’ pocket during this tough time. Anders State and Local Tax advisors have the expertise to pursue these refunds and can do so on a contingent basis. Contact an Anders advisor below for more information on reverse audits.

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October 13, 2020

Economic Nexus by State Following South Dakota v. Wayfair

The decision of South Dakota v. Wayfair is causing states to enforce economic nexus laws to collect sales tax from out-of-state sellers with a connection to the state. These laws affect online retailers and multi-state businesses who collect revenue up to the threshold amount in a state.

To understand which states your business may be liable to pay sales and use tax in, we compiled a chart with each state’s economic nexus threshold, criteria and enforcement date. The chart is updated regularly as states adjust their requirements.

Complete the form below to download the latest version of the Economic Nexus by State chart.

Learn more about the South Dakota v. Wayfair decision.

Updated 10/13/2020

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September 29, 2020

What Not-for-Profits Need to Know About Sales and Use Tax

When it comes to not-for-profit organizations, each state may treat them differently from a tax perspective. Some not-for-profit organizations may be nontaxable on their purchases and taxable for their sales, or vice versa. Some states will tax both sales and purchases or treat both as nontaxable. It’s important to know that being exempt from federal income tax does not always translate to being exempt from sales tax. There are many factors that come into play when a not-for-profit organization is paying or collecting sales tax.

WHAT IS SALES TAX AND WHAT DETERMINES IF I OWE?

Sales tax is a tax on the retail sale of tangible personable property and enumerated taxable services. For not-for-profit entities, where they are located, their main activities or functions, and type of entity can determine whether they pay or collect sales tax.

JEOPARDIZING YOUR EXEMPTION

Pursuant to federal law, there are certain activities that can cause an organization to lose its tax exemption. For example, the following activities can endanger exempt status of an organization:

  1. Activity that results in private benefit or inurement to a private shareholder or individual
  2. Lobbying activity, if it constitutes a substantial part of the organization’s overall activities or if it exceeds a predetermined dollar amount
  3. Activities that are illegal or violate fundamental public policy
  4. Failure to comply with annual filing requirements
  5. Any political campaign activity
  6. Unrelated business activity that is substantial when compared to the organization’s exempt function activities

SALES AND USE TAX FOR ILLINOIS NOT-FOR-PROFITS

Purchasing

Under Illinois law, purchases by not-for-profit organizations are generally exempt from sales and use tax in Illinois, but the organization must have and provide their active state exemption certificate. Nevertheless, there are factors that can cause organizations to pay sales and use tax. If the organization is not operating “exclusively for charitable, religious or educational purposes,” it may not be exempt from paying sales tax on purchases.

Pursuant to Ill. Admin. Code 130.2005(n), “exclusively” has not been given its literal interpretation by the Supreme Court regarding not-for-profit organizations. It means that an organization’s primary activity or function must be charitable, religious or educational. Purchases made by the organization must relate to the primary activity or function of the not-for-profit organization to be exempt. If a substantial activity or function of an organization is not operating exclusively, it will not be considered exempt.

Selling

Sales by exclusively charitable, religious and educational organizations are taxable, unless specifically exempt. Tax exempt sales in Illinois for not-for-profits are:

  • Sales to members, students in the case of schools, or patients in the case of qualifying hospitals, of tangible personal property to be used primarily for the purposes of the selling organization
  • Sales that are noncompetitive with businesses; or occasional dinners, socials and similar activities, whether they are open to the public or not.

For a sale to be considered noncompetitive all proceeds must go to the organization, transactions must be handled through the organization’s members, sales cannot be continuous and the main purpose is to make a charitable donation. Only two “occasional” dinners or similar activities may be exempt per calendar year.

SALES AND USE TAX FOR MISSOURI NOT-FOR-PROFITS

Purchasing

Under Missouri law, sales and use taxes are not applicable to sales made to any religious and charitable organizations and institutions provided they are acting within their religious, charitable or educational functions and activities. For not-for-profit civic, social, service or fraternal organizations to be exempt from tax, the net proceeds must be designated for civic or charitable functions or activities. All purchases must be solely in their civic or charitable functions or activities. Not-for-profit organizations must have and provide their active state exemption certificate. Out of state not-for-profit organizations may purchase or sell exempt, as stated above, if their home state exempts such transaction in that state.

Selling

For the most part, the same guidelines for purchasing apply to sales by the not-for-profit organization.

If you have any questions, our State and Local Tax team is here to help. Contact your Anders advisor below to learn more about how any taxes apply to your not-for-profit organization.

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September 3, 2020

Consumer Use Tax – The “Tax” That Can Bite Dentists Unaware

Read the Dental Arch article written by Robert V. Willeford, Jr., Anders State and Local Tax Director.

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August 14, 2020

Robert Willeford Warns Dentists of Consumer Use Tax in the Dental Arch

Many dentists are aware that dental services are generally exempt from sales tax. But when dentists sell tangible personal property to customers, this can be taxable on the sale to the patient or insurance company. Anders Director + State and Local Tax Robert V. Willeford, Jr., CPA, Esq. discusses the consumer use tax and how it impacts dental practices in the Dental Arch.

In the article, Robert and Anders tax senior Claire E. Rogers, CPA go into detail about what items are taxable and how Missouri and Illinois handle sales and use tax for qualifying items.

Read Consumer Use Tax – The “Tax” That Can Bite Dentists Unaware or learn more about how we help with State and Local Tax.

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May 22, 2020

Temporary Location Treatment by State for Work From Home Employees During COVID-19

In response to the stay-at-home orders issued by the states, many states are addressing their treatment of the temporary locations of employees throughout the country when it comes to withholding, as well as nexus.  We’ve prepared a list of those treatments below.

Updated 6/25/20

Alabama – State will not consider temporary changes in an employee’s physical location to impose nexus or alter apportionment of income for any business during the periods of telework requirements of the pandemic.

Arkansas – Under current law, an out of state business that conducts operations in Arkansas related to a declared emergency during a disaster response period is exempt from registering, filing, and remitting state and local taxes, including, without limitation:  unemployment insurance; state and local occupational licensing fees and privilege taxes; state & local income tax; and state & local sales and use tax.  Furthermore, an out of state employee is not required to file or pay Arkansas income tax, subject to income tax withholdings, or any other state & local tax or fee.  However, these businesses and employees may still be subject to any ad valorem taxes.  However, Arkansas has not issued guidance on how this law is applied to the COVID-19 pandemic.

District of Columbia – The District will not try to impose corporation tax or unincorporated business franchise tax nexus due to remote workers (including property being located) temporarily working from home inside the District when no nexus existed before the publicly declared emergency.

Georgia – State will not use the temporary relocation of employees due to COVID-19 pandemic to establish Georgia nexus or for exceeding protections of Public Law 86-272 for the employer.  Income earned by employee temporarily working in Georgia will not be considered Georgia income.  Income earned by nonresident employee that normally works in Georgia are considered Georgia wages and income taxes must continue to be withheld.

Illinois – Illinois issued guidance for employers who employ Illinois residents who work from home during the COVID-19 pandemic.  Illinois requires employers to withhold income tax from employees who perform services in Illinois and perform those services in Illinois for more than 30 days.  Those employers who are not registered for withholding in Illinois will need to get registered.  Illinois will waive penalties and interest for out-of-state employers who fail to withhold solely due to the pandemic, but tax must be paid.  Nevertheless, if a state has a reciprocal agreement with Illinois, the withholding requirements don’t apply.  Those states are Iowa, Kentucky, Michigan, and Wisconsin. 

Indiana – Indiana will not try to impose income tax nexus due to remote workers (including property being located) temporarily working from home inside Indiana when no nexus existed before the publicly declared emergency.  These temporary protections will extend for periods where there is an official work-from-home order by the federal, state or local government or order of a physician due to diagnosis.

Iowa – Iowa will not consider the presence of employee(s) working remotely in Iowa solely due to the COVID-19 pandemic, by itself, to constitute nexus for corporate income tax.  Iowa also will not consider non-sales employees in Iowa due to the pandemic enough to lose the protections of Public Law 86-272.  Iowa has also provided guidance on withholding requirements due to the pandemic.  Individual income tax and withholding requirements have not changed due to the pandemic.  Iowa residents are subject to tax on their entire income, wherever it is earned.  Nonresidents who typically work in Iowa, but are temporarily telecommuting in another state, or nonresidents who typically work outside Iowa but are temporarily telecommuting in Iowa, may need to adjust their Iowa apportionments.

Maine – Revenue Services has determined that personal income tax does not apply to a nonresident’s income earned when conducting trade or business in Maine during a disaster period when the income is earned solely from performing services or conducting business during the COVID-19 disaster period at the request of the state, county, city, political subdivision, or a registered business.  This applies to income earned beginning with the date of the governor’s proclamation of a state of emergency on March 15 and runs for until 30 days after the termination of the state of emergency.

Maryland – Regarding interim workplace modes and employee deployment in light of the current health emergency, the agency will not use these temporary measures to impose business nexus to alter business income sourcing or additional withholding requirements on employers.

Guidance issued on teleworking situations on withholding requirements due to COVID-19.  Compensation paid to a nonresident teleworking in Maryland due to COVID-19 is subject to withholding.  However, Maryland has reciprocal exemption agreement with bordering states of Virginia, District of Columbia, West Virginia, and Pennsylvania.

Massachusetts – Employees working remotely temporarily in Massachusetts due to COVID-19 will not establish corporate excise tax nexus solely based on that fact.

State adopted sourcing rules for income tax withholding from employees who telecommute during the COVID-19 pandemic.  If employee was engaged in performing services in state prior to pandemic, employers must source their income withholding to Massachusetts.  If employee is temporarily working in Massachusetts, state will not require withholding from employer if it must withhold income tax from employee in another state.

Employees working remotely temporarily in Massachusetts due to COVID-19 will not establish sales and use tax nexus solely based on that fact.

Minnesota – State will not seek to impose nexus for any business tax solely because an employee is temporarily working from home in Minnesota due to COVID-19.

Mississippi – Mississippi will not use the changes in temporary work locations due to the pandemic to impose income tax nexus or alter apportionment of income.

Missouri – Though the state has not provided guidance on these issues, the City of St Louis has decided to deny refund requests for the days and weeks employees were required to work from home outside the city due to the COVID-19 pandemic.

Nebraska – State has issued FAQs that addressed employers working from a temporary location in or outside Nebraska.  The state has determined no change in withholding is needed for employees telecommuting during the COVID-19 pandemic.

New Jersey – State will not use the temporary relocation of employees due to COVID-19 pandemic to establish New Jersey nexus for the employer.  Income earned during the temporary period of the COVID-19 pandemic will continue to be sourced as determined by the employer’s jurisdiction.

New York – State has stated it is in no position to waive individual income tax liability for nonresident medical workers when in the state for more than two weeks, per New York law.

North Dakota – If an employee is temporarily telecommuting in North Dakota due to COVID-19, income tax nexus will not be asserted on that basis alone.

Ohio – For Ohio municipal income tax purposes, employees who must report to a temporary worksite during the emergency period due to COVID-19, or 30 days thereafter are considered to be working from their principal place of work.  The state has not specifically addressed if that principal place of work was in another state.

Pennsylvania – State will not seek to impose Corporate Net Income Tax nexus solely on the basis of employees temporarily working from home due to COVID-19.  An employee working from home temporarily due to the COVID-19 pandemic, the department will not consider that a change to the sourcing of the employee’s compensation

  • City of Philadelphia – Business income and receipts tax (“BIRT”), as well as the Net Profits Tax deadline for filing and payments has been extended to July 15, 2020.  City will also temporarily waive the nexus threshold for the BIRT when employee works from home solely due to COVID-19 pandemic.  However, if non-resident employees who were previously working in the city of Philadelphia will be deemed as performed within the city.
    • Nonresident employee is not subject to the Wage Tax when the employer requires him or her to work outside of Philadelphia while COVID-19 causes him or her to work from home.

Rhode Island – State has issued emergency regulations and withholding guidance for employers that have employees working remotely in the state due to the pandemic.  Rhode Island will continue to treat income by nonresidents, temporarily working outside the state solely due to the pandemic, as Rhode Island-source income.  However, the state will not require employers located out of state to withhold Rhode Island income taxes on income for employees who are residents of the state but are temporarily working in Rhode Island solely due to the pandemic.  Unless extended, the emergency rules are in effect for 120 days, barring certain events that may happen, such as:  the state of emergency ending; permanent rules are promulgated; or state enters into an agreement with another state that will govern this withholding requirement.

The state has determined that corporate income tax and sales and use tax nexus will not be established solely due to an employee temporarily working in Rhode Island.  Property temporarily located in the state during the state of emergency for telework purposes will not trigger nexus for income tax or sales and use tax, nor will Public Law 86-272 protection be lost due to the employees performing services in Rhode Island during this time.  Furthermore, employees temporarily working in the state due to the pandemic will not change the Rhode Island apportionment percentages.

South Carolina – The state has offered temporary relief regarding nexus being established solely because an employee temporarily works in South Carolina due to COVID-19.  The state will not use the temporary location as a basis for establishing nexus or altering apportionment of income during the COVID-19 relief period of March 13, 2020 to September 30, 2020.

During the aforementioned relief period, withholding requirements are not affected by an employee temporarily working outside South Carolina due to the pandemic.  In addition, an out-of-state business is not subject to South Carolina’s withholding requirement for employees temporarily working in South Carolina due to the pandemic, if the business is currently withholding income taxes on behalf of the other state.

Texas – Under Texas law, an out of state business is not engaged in business in this state if the entity’s physical presence in this state is solely from the entity’s performance of disaster or emergency related work during a disaster response period.

Vermont – A nonresident temporarily living and working in Vermont is required to pay Vermont taxes on the income earned while living and performing in the state, even if they are in the state due to the COVID-19 pandemic.  If a business has remote workers in Vermont only on a temporary basis, they will not be required to change the employee’s withholding state.

After the lockdown, should your employees want to continue to work remotely, many states will impose nexus, requiring you to file tax returns in those jurisdictions. If you have any questions, our State and Local Tax team is here to help. Contact an Anders advisor to learn more about the COVID-19 extensions or assistance in performing a nexus review to determine where you have a filing responsibility. Visit our COVID-19 Resource Center for more news, tools and insights you need to know in these uncertain times.

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