February 16, 2016

NHSCA Interprets Washington State Tax Advisory

Appears official that longstanding law of no sales tax upon initial sale of home service contracts is affirmed.

The Washington State Department of Revenue published an Excise Tax Advisory (ETA) on January 12, 2016, ETA 3198.2016 regarding the sales taxation of home service contracts.

This ETA has been in discussion for years with the home service contract industry. The Washington Department of Revenue (DOR) has desired to alter the tax law after decades of audit clearance letters by the DOR approving of no sales tax upfront on the sale of home service contracts. Sales tax has always been collected when local Washington contractors later perform work. Only a handful of states tax the sale of home service contracts at the time of contract sale, and only pursuant to clear and specific statutory authority.

The ETA appears to rely in great part on a wholly unrelated statutory amendment in 2005 that taxed the sale of new product “extended warranties” sold at retail under RCW 82.04.050. Home service contracts do not cover new product, retail sales in any way shape or form. The reliance on the taxation of new products sold at retail, makes the entire basis for the ETA suspect.

Also casting a cloud, is that the DOR has continually assessed a B&O tax on all home service contract sellers at the rate of 1.5%. If home service contract sales were indeed retail sales, subject to RCW 82.04.050, the tax rate should have been the applicable 0.471%. If upheld, may years of refunds would need to be calculated.

Due to these issues, the DOR and the NHSCA cooperated to sponsor HB 1997 in March, 2013 to change the taxation of home service contracts to be more like that of retail goods. The legislature rejected that approach after a full hearing on the issues. This ETA appears to be an overt attempt to circumvent the Legislature.

However, this advisory strains to explain that typical home service contracts that only cover real estate and fixtures (broadly defined as virtually all appliances and household systems) are not sales taxable. So one fair reading is this ETA perhaps continues the decades old interpretation by the DOR and legislature that home service contracts are not taxed at time of sale, but only on work later performed later by a local contractor.

Due to the ETA not being reviewed with industry prior to publication, it contains some odd factual errors including a statement that a warranty can only cover personal property and erroneous legislative definitional references to “warranty” that any real impact of the non binding advisory is difficult to assess. An included discussion of “mixed service contracts” has few definitions and suggests a deminmis or “no tax” tax rule on covered tangible personal property, so it may also suggest no change in policy.

One can only fairly conclude as the Washington Legislature has, that home service contracts are not taxable at time of sale, just as the DOR has ruled for decades. Only the legislature can change the law. The NHSCA remains ready and willing to accept a future change set by the Washington legislature.

The National Home Service Contract Association (NHSCA) is a non-profit 501(c) (6) industry trade organization of member companies serving home service contract providers and consumer interests throughout the United States. For more great industry and consumer information, including short helpful videos, visit  https://homeservicecontract.org or call 913871-5600.