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Maryland Passes Digital Advertising Tax, Now Being Challenged in Court

March 01, 2021 (Updated April 29, 2021)

Update – The Maryland legislature passed S.B. 787, which makes changes to the Digital Advertising Gross Revenue Tax including moving the effective date to tax years beginning after December 31, 2021, as well as a provision that prevents the tax from being passed onto a consumer by way of surcharge, line item, or separate fee. The Maryland Department of Revenue issued Revenue Bulletin 21-2 announcing the Department will adopt regulations specific to the tax and call for public comment on any proposed regulations. The Department also announced the first quarter estimated payment for the tax is due April 15, 2022. The tax is being challenged in both state and federal court.

Unrelated to the Digital Advertising Gross Revenue Tax, S.B. 787 also includes changes to the legislature’s expansion of the sales and use tax base to include sales of digital products and digital codes made in its override of the governor’s veto of H.B. 932. Both terms, “digital products” and “digital codes,” are broadly defined by the new law. The Maryland Department of Revenue issued Business Tax Tip No. 29 to explain what is considered a digital product or digital code. Digital products and codes are subject to sales tax effective March 14, 2021. Sales tax due on March, April, and May sales of digital products or digital codes are due to the state by July 15, 2021.

Background

The Maryland state legislature voted on February 12 to override Governor Larry Hogan’s veto and thus enacted the Digital Advertising Act, the first tax of its kind in the United States. Other states such as Indiana, New York, and West Virginia have made similar proposals. However, the success of Maryland’s digital advertising tax is in question as a challenge was brought within one week of its passing in the US District Court of Maryland.

Digital Advertising Gross Revenue Tax

The digital advertising gross revenue tax is imposed on the annual gross revenues of a person derived from digital advertising services in the State of Maryland. “Annual gross revenues” means income or revenue from all sources, before any expenses or taxes, computed according to generally accepted accounting principles. Annual gross revenue in the state is determined using an apportionment formula, the numerator of which is annual gross revenue from digital advertising services in the state and the denominator of which is annual gross revenue of a person derived from digital advertising services in the United States. “Digital advertising services” include advertisement services on a digital interface, including advertisements in the form of banner advertising, search engine advertising, interstitial advertising, and other comparable advertising services. The newly enacted language does not define the phrase “derived from digital advertising services in the state.” The tax rate imposed is based on a schedule of annual gross revenues with the highest rate at 10%.

Quarterly estimated payments are required for persons with estimated annual gross revenues in the State of Maryland that exceed $1 million. Each person with annual gross revenues of at least $1 million in the state is required to file an annual return in the next year. However, whether the tax will remain in place is in question, as several trade groups have challenged the validity of the tax using a number of constitutional and statutory arguments.

Issues with Digital Advertising Gross Revenue Tax

There are three main arguments against the tax but also serious issues with the ability of taxpayers to comply with the law, as the statutory language is vague and lacks sufficient clarity for compliance.

First, Maryland’s tax may violate the Internet Tax Freedom Act (ITFA). The ITFA prohibits discriminatory taxes on electronic commerce. Because the tax is imposed only on digital advertising and not all advertising, there is an argument that the tax is discriminatory to ecommerce.

Further, there are questions about the tax under both the Due Process Clause and Commerce Clause of the US Constitution. There is an argument that the activities of persons subject to tax—those with global gross revenue in excess of $100 million—do not rationally relate to the incident of tax revenue from digital advertising services in the state (which is not yet defined). This use of extraterritorial receipts to determine taxability in the state may discriminate in violation of the Commerce Clause. Additionally, the tax may violate the Commerce Clause as the United States had previously taken a position against digital advertising taxes advanced in several European countries. It can be said that Maryland’s imposition of tax undercuts this US foreign policy and thus the United States would not be “speaking with one voice” as required by the Commerce Clause.

Additionally, the language as enacted poses several problems with actual compliance with the tax. The statute does not define or instruct on how to determine when revenues are “derived from digital advertising services in the state.” It could be viewed that revenue derived from digital advertising in the state is meant to capture receipts from customers in Maryland who purchase digital advertising services. It could also be argued the tax is meant to capture receipts from companies outside the state that purchase digital advertising to be shown in the state. Further, digital advertising is defined very broadly as “advertisement services on a digital interface including advertisements in the form of banner advertising, search engine advertising, interstitial advertising, and other comparable advertising services.” Could native advertising also be captured in that definition? Plenty of social media influencers have netted healthy cash or in-kind payments for posting sponsored content. It’s unclear how and whether this tax applies, and to whom.

Other states have proposed taxes on digital advertisements, which are at various stages of the legislative process. Indiana’s HB 1312 imposes a tax on the annual gross revenue from social media advertising services. New York’s S08056A would enact a tax on gross revenue from digital ads. West Virginia’s HB 4898 imposes a sales tax on data mining services, measured at one cent per dollar value of user data. Most states may be waiting to see how the Maryland tax plays out before making moves on either already proposed taxes or acting to propose similar taxes.

What’s Next?

As mentioned, on February 18, 2021, several trade groups filed a complaint in the US District Court of Maryland requesting an injunctive and declaratory relief against the tax. The complaint includes many of the arguments mentioned above, as well as alleging that the tax is a penalty against tech companies, based on comments from Maryland legislators during Maryland Senate hearings. It remains to be seen whether taxpayers will be successful in challenging the tax in court.

Meanwhile taxpayers are left with the task of determining if they may be subject to the tax, and coming up with a reasonable computation for the tax due in line with the new law. Should the tax go into effect, taxpayers could face late filing or late payment penalties for not filing on time. Taxpayers may want to bolster arguments to contest penalties, and also file under protest to increase the chances of obtaining refunds should the tax be invalidated or modified. Taxpayers are encouraged to contact a member of the Morgan Lewis tax team to strategize for compliance with the law.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Chicago
Adam P. Beckerink
Matthew S. Mock
Laura Grace Mezher
Colleen M. Redden

New York
Cosimo A. Zavaglia

Philadelphia
Justin D. Cupples