Sales Tax and the Not-for-Profit Organization

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1 Sales Tax and the Not-for-Profit Organization KLR Not-for-Profit Services Group March Boston Cambridge Newport Providence Waltham 888-KLR-8557

2 Sales Tax and the Not-for-Profit Organization Sales tax is a tax placed on consumers of goods and services. It is not a tax placed on the sellers of goods and services. Not all goods and services are subject to sales tax. What is and is not subject to sales tax is a matter of state law. The sales tax laws of most states frequently refer to the tax as a use tax. This not only emphasizes the fact that the tax is placed on the consumer, or the user, of the product or service, but the reference also indicates that the consumer has the liability for the tax when they begin to use the product. The consumer s liability is extinguished only if a receipt can be provided showing that the sales/use tax was paid to a retailer. ** As a not-for-profit organization you may be exempt from paying sales tax when you purchase something for your organization s use. You are most likely not exempt from charging and collecting sales tax when you have dealings with the general public and are acting like a retailer. Why do retailers charge sales tax? Because the state tax division realizes that it is best to collect sales tax at the time of purchase rather than at any point after the purchase, the law has been written requiring retailers to collect the tax from the buyer and give the buyer a receipt for the amount collected. 1 Why don t not-for-profit organizations pay sales tax on their purchases? Because state law exempts some not-for-profit organizations from paying the use tax on their purchases. The specific law reads as follows: Sales to churches, orphanages, and other exempt charitable and religious organizations, nonprofit hospitals, educational institutions, interest-free loan associations, organized sporting leagues and associations, bands for boys and girls under 19 years, certain vocational organizations, senior citizens clubs exclusively composed of persons over 61 years, and parent-teacher associations are exempt. The exemption applies only to purchases made by the organization itself for its own purposes. Each organization must file an application for, and obtain from the tax administrator, an exemption certificate covering such exempt organization. 2 What does the Rhode Island State Sales and Use Tax Law say regarding sales made by notfor-profit organizations? Sales of low-cost items by not-for-profit organizations: The state law indicates that certain not-for-profit organizations do not have to charge sales tax on low-cost items which are sold in connection with fund raising to support the organization. The specific law reads as follows: Nonprofit eleemosynary organizations formed to sponsor and support youth activities, accredited elementary and secondary schools are exempted from charging, collecting, and remitting the sales tax on items worth $20 or less sold to support youth activities. They are liable, however, for sales and use tax on other items they purchase. 3

3 el ee mos y nar y adj. 1. Of, relating to, or dependent on charity. 2. Contributed as an act of charity; gratuitous. See Synonyms at benevolent. (From the American Heritage Dictionary) Note that this section of the law applies only to eleemosynary organizations formed to sponsor and support youth activities or support elementary and secondary schools. Therefore, this section does not apply to every not-for-profit organization. As a matter of fact, it applies to only a minority of not-for-profit organizations. It also applies only to a specific type of sale fund raising sales of small dollar items. Although the law indicates the worth of the item sold, worth has been interpreted as the sales price of the item sold. In other words, selling something in a fund raising effort for $25 which is only worth $10 will not be a transaction exempt from the sales tax law. Casual sales by not-for-profit organizations: Not-for-profit organizations do not have to collect sales tax on casual sales. These types of sales must meet two criteria to be exempt from the sales tax law. (1) An item sold will not be classified as a "casual sale" unless it is the sale of an item, which is not held or used by the seller in the course of activities for which the seller is required to hold a seller's permit. Thus, if your organization normally sells an item for which a permit to make sales at retail is required, the sale of these items can not ever be classified as casual sales. e.g. if your organization regularly sells books and, therefore, has a permit to make sales at retail, no sale of these books will ever be classified as a casual sale, and be exempt from the sales tax law. (2) Casual sales include sales made at bazaars, fairs, picnics, or similar events by nonprofit organizations which are organized for charitable, educational, civic, religious, social, recreational, fraternal, or literary purposes. Sales such as this will only qualify as casual sales if the organization sells these items at not more than two (2) events, which combined, do not exceed a total of six (6) days duration each calendar year. Such organization may, however, request of the tax administrator to have more than two (2) events in a calendar year so long as those events do not exceed, in total, six (6) days during such calendar year. For each of these events the law requires that the organization obtain a sales tax permit from the Division of Taxation. 4 Note that this casual sale exemption from the sales tax regulations is broader than the exclusion for low-cost items. The casual sales regulations apply to all not-for-profit organizations organized for charitable, educational, civic, religious, social, recreational, fraternal, or literary purposes, while the low-cost exemption applies only to eleemosynary organizations. There are also a couple of exceptions to the casual sale exemption. Sales tax applies to the sale of a motor vehicle, or trailer even though such sale is a casual sale, and whether or not it is in fact registered or required to be registered by the purchaser with the Registry of Motor Vehicles. While casual sales of house trailers and mobile homes are exempt, casual sales of all other trailers, including camping trailers cannot be casual sales and are always taxable. The casual sales defined in (2) above are specific to events. If your organization is making casual sales according to the definition in (1) above, but makes more than 5 of this type of casual sale in a 12-month period, then you are classified as a retailer.

4 The casual sale only means a sale by a person other than a retailer. Therefore, if you qualify to be considered a retailer, you lose your ability to make tax-free casual sales. Do not-for-profit organizations have to collect sales tax on transactions that do not meet the above exemptions? Yes, a not-for-profit organization making a sale to the general public is acting like any other retailer. If the product or service is subject to the state s sales tax law, then the not-for-profit must collect the sales tax and remit it to the state in the same manner as any other retailer. In order to determine if the product you are selling is subject to sales tax, you should obtain a copy of the Rhode Island sales tax manual from the sales tax division of the Rhode Island Division of Taxation. Some of the unique situations that not-for-profit organizations find themselves and which are not specifically addressed in the state sales tax manual are described below. Auctions Retail sales by an auctioneer, regardless of whether those sales otherwise meet one of the exemptions noted above, are subject to RI sales tax. 5 The regulation providing this ruling does not differentiate between a professional auctioneer and a volunteer auctioneer that run many not-for-profit organization charity auctions. However, we believe that an auctioneer is an auctioneer and the charity is best served by charging and collecting sales tax on the items sold. Keep in mind, however, that when an item sells for an amount in excess of its fair market value, the sales tax should only apply to the fair market value and not to the entire amount paid. The not-for-profit organization should be prepared to issue a receipt to the successful bidder in a form similar to the following: Utopia Charitable Society Auction Receipt * This amount may be claimed by the donor as a charitable contribution to the Utopia Charitable Society. All amounts contribute to the success of our mission. Thank you for your support. 1 case, Mixed Table Wines from France Winning bid $ 750 Fair Market value of item $ 500 RI Sales tax (7%) $ 35 Donation above fair market value * $ 250 Total received from donor $ 785 Caution: failure to collect sales tax at an auction may subject the organization to paying sales tax on the gross amount collected. Silent Auctions: Since a silent auction does not involve an auctioneer, we believe that these items may not be subject to this regulation, assuming the silent auction meets the other requirements for exemption. However, if an organization conducts a silent auction in conjunction with a live auction, we recommend that sales tax be applied to all auction items. The Rhode Island Division of Taxation

5 is not likely to view the silent auction activity as being sufficiently separate from the live auction to bypass the taxation of retail sales by an auctioneer contained in this regulation. Tickets to events In general, event tickets are not subject to sales tax. Thus, if your organization charges for a speaking event, annual meeting, exhibit or show, etc., no sales tax applies to this transaction. If, however, the attendee will receive a tangible benefit at the event, then sales tax applies to the value of the tangible benefit. Thus, if your organization holds a dining event at which attendees will receive the tangible benefit of food, sales tax must be charged on the fair market value of the benefit. If no value can be assigned to the tangible benefit, the Division of Taxation may conclude that the entire ticket is taxable. The state law indicates that the tax administrator can require that the amount collected by a retailer in reimbursement of sales or use tax be displayed separately from the list price.6 Therefore, it is advisable to indicate on your ticket, the fair market value of the tangible benefit to be received and the value of that benefit separately stated from the sales tax thereon. This applies whether your organization has purchased the benefit or if it was donated to your organization and you received it at no cost. This regulation is parallel to the IRS regulations relative to quid pro quo contributions. The IRS regulations require your organization to separately disclose the fair market value of the benefit to be received from the charitable contribution portion of the ticket price. If the tangible benefit to be received is a product to which Rhode Island sales tax applies, then the sales tax should also be disclosed on the ticket and the sales tax must be remitted to the state. Example: Your charitable organization sponsors a nationally known speaker at a dinner event. The cost of attending is $50 and the fair market value of the meal served is $12. The restaurant where the event is being held is making a contribution to your organization by providing the meal to you for $9 per person. The information that should be disclosed on your tickets is as follows: Price of admission $50, of which $37.16 is a tax deductible charitable contribution; the remaining $12.84 represents the fair market value of the meal to be served ($12) and the state sales tax ($.84) that applies to the meal. If the restaurant charged your organization the $.84 sales tax on each meal, you do not have to remit anything to the state. (See member events below.) Member events When your organization holds an event for its bona fide members, no sales tax applies to the event even if the members receive a tangible benefit. Thus, if the attendees at your annual dinner meeting are all bona fide members of the organization, the event qualifies as a purchase by the charitable organization and your exemption from the state sales tax will qualify you to make the dinner purchase without paying sales tax. Since the attendees are all members of the not-for-profit organization, a second sale has not been made and no sales tax applies.

6 Note that if the event was open to the general public or the attendees are not bona fide members of the not-for-profit organization, the restaurant must charge your organization sales tax. You must pass this sales tax charge along to the attendees via your ticket information noted above. If you fail to do this, the Division of Taxation may conclude that the entire price of admission charged by your organization is subject to sales tax and bill you based on the amount of tickets sold. The failure of the restaurant, hotel, caterer or other provider of tangible products to charge you sales tax does not alter your responsibility to collect sales tax from the ultimate consumer in accordance with the state sales tax regulations. Remember, you are acting as a retailer and are subject to all of the same regulations to which every retailer is subject. Discount cards and coupons When your organization solicits local businesses to provide discount benefits to your contributors and you provide them with a discount card to be used for free or discounted merchandise there is no sales tax to be collected by you. The Rhode Island sales tax regulations indicate that when a local merchant gives away merchandise and is not reimbursed by an out-of-state company (such as a home office or other third party) the transfer of merchandise is not subject to sales tax. If your organization has purchased tangible merchandise coupons such as gift certificates, you do not have to pay sales tax for those when making the purchase and do not have to collect sales tax when providing these in exchange for contributions. The appropriate sales tax will be collected by the merchant when the coupon is exchanged. Footnotes: Footnote References are to the Rhode Island General Laws 1 G.L. Ch ; Reg. SU G.L. Ch (E), (OO), Reg. SU 88-48; SU G.L. Ch (JJ); Reg. SU G.L. Ch (7); PL RI Sales and Use Tax Regulation SU G.L. Ch ; Ch. 21,147 * Please note that this whitepaper is a general summary of law and omits many important details, footnotes, and caveats. It is no substitute for informed advice from a tax professional based on your particular circumstances.

7 ABOUT OUR FIRM KLR is one of New England s premier accounting and business consulting firms. With 180 team members and offices in Boston, Cambridge, Newport, Providence and Waltham, KLR provides a wide range of services to both individuals and businesses. Ranked one of the largest firms in New England, KLR s growth and commitment to clients is unparalleled in the industry. KLR has been awarded three Practice Innovation Awards and named one of the Best Places to Work (seven years in a row). Our award-winning firm helps ensure our ability to retain the most talented professionals to support your organization. To learn more about KLR s services, call us or visit our website at This publication contains general information only and is based on the experiences and research of Kahn, Litwin, Renza & Co., Ltd. (KLR) practitioners. Any statements contained herein are not intended or written by KLR to be used, and nothing contained herein can be used, by you or any other person, for the purpose of avoiding penalties that may be imposed under federal tax law. KLR is not, by means of this publication, rendering business, financial, investment, or other professional advice or services. This publication is not a substitute for such professional advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified trusted advisor. KLR, its affiliates, and related entities shall not be responsible for any loss sustained by any person who relies on this publication. Please see for a detailed description of Kahn, Litwin, Renza & Co., Ltd. Copyright 2013 Kahn, Litwin, Renza & Co., Ltd. All rights reserved.

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