California Affiliate Nexus Law Goes Into Effect

We have written frequentlyabout the California affiliate nexus statute, AB 155, which was adopted in June 2011, but was temporarily repealed in September 2011, pending Congressional action on a bill rejecting the Quill physical presence test. Since Congress has not enacted such a law, AB155 is set to go into effect tomorrow.

The California Board of Equalization (“BOE”) undertook a lengthy rulemaking process over the past year to flesh out the requirements of the law. Much of this effort is reflected in the BOE’s newly amended version of California Regulation 1684. Here are some of the key points:

• The law provides that an affiliate relationship will create nexus only if the payment to the affiliate is based upon a completed sale of tangible personal property; i.e., a commission-based arrangement. Thus, pay-per-click payment arrangements with affiliates do not create nexus. 
• The statute, and Regulation 1684 which interprets the statute, provides that if the arrangement with the affiliate is for the purchase of advertisements to be delivered on the Internet, the retailer will not be deemed to have nexus if the affiliate does not directly or indirectly solicit customers in California through the use of flyers, newsletters, telephone calls, email, blogs, social networking sites, or other means of direct or indirect solicitation specifically targeted at potential customers in California. Thus, if a retailer places content on the website of a California affiliate that provides information regarding the retailer’s products and the affiliate links to the retailer’s website, so long as the affiliate does not make any solicitations on behalf of the retailer that specifically target CA residents, the retailer should not have nexus under the California statute. 
• Regulation 1684 provides for a safe harbor if (1) the agreement between the retailer and affiliate provides for a prohibition of California solicitation activities on behalf of the retailer, such as distributing flyers or coupons or sending emails; (2) the retailer obtains certificates annually from the California-based affiliates that it has not engaged in any such prohibited solicited activities; and (3) the retailer accepts such certificates in good faith. 

Unfortunately, many of these important details were omitted from recent correspondence sent by the BOE to retailers, which included a form of nexus questionnaire. The BOE stated that a retailer is engaged in business in California and thus required to collect the California sales and use tax if it has a relationship with an affiliate operating in California that refers potential customers to the retailer. However, nowhere in the materials sent out by the BOE is there any mention of the exceptions to the finding of nexus discussed above.

Before making the decision either to discontinue affiliates or to collect California sales and use tax, ecommerce sellers should review the nature of their affiliate relationships to determine whether those relationships, as currently structured or as revised in the future, will create nexus in California under the actual provisions of the law. Moreover, a prudent e-tailer should not respond to the BOE questionnaire unless and until it has carefully reviewed its activities with competent professionals.

Borders’ Gift Card Holders Not Permitted Recovery in Bankruptcy

We’ve written about gift cards in this space in the past, and have covered escheat issues related to gift cards, as well. But, in a different wrinkle, last month, the Bankruptcy Court for the Southern District of New York addressed the impact of bankruptcy law on companies’ requirements to honor gift cards.

By way of background, in February 2011, Borders filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. In general, retailers are not obligated to honor gift cards in bankruptcy, despite any state requirements that gift cards be honored for a certain period of time. Instead, gift card holders are generally treated like all other creditors and are required to timely file proofs of claim prior to a bar date set by the court in order to receive the value (or a portion of the value) of the gift cards. Note though, that in California, at least, retailers in bankruptcy may be required to honor gift cards.

But, via a motion filed with the Bankruptcy Court, Borders indicated that it planned to honor gift cards issued prior to the petition date. That is, customers could continue to use Borders gift cards in Borders stores and on its website. Later, following the September 2011 liquidation of Borders’ retail stores and the end of its e-commerce operations, Borders no longer honored its gift cards since it no longer had any retail channels through which it could do so. In January 2012, after confirmation of the bankruptcy plan, several holders of gift cards who had not yet redeemed the cards filed a motion seeking to allow late proofs of claim so that they could recoup the value of their unused gift cards. They argued that because of data systems Borders had in place, Borders should have been required to provide each gift card holder actual, individual notice of the bar date to file claims, rather than the general notice provided via publication in the New York Times. Since they did not receive adequate notice, they argued, their failure to file proofs of claim was due to excusable neglect and late claims should have been permitted.

Last month, the Court denied the motion, saying that the holders were not known creditors entitled to individual notice, simply because of the very nature of gift cards. As the Court wrote, “even if the Debtors were able to identify the purchasers of the Gift Cards, they would have no way of tracing the ultimate recipients...” Since the gift card holders were not known creditors, the constructive notice they received via the notice published in the New York Times was adequate.

Moreover, there was no excusable neglect that would allow for late filed claims. First, the Court wrote that allowing the late claims “would have a disastrous effect on...the final distribution of the Plan” and would prejudice other debtors. In June 2011, there were 17.7 million outstanding gift cards with unredeemed balances totaling $210.5 million. By the time the Court issued its order, there was only $90 million remaining to pay various creditors who timely filed proofs of claim totaling over $800 million. The Court wrote that because of the amount of the gift card related claims, if such claims were allowed, they would “drastically change the estimated recovery” for creditors and “warrant a modification of the Plan and re-solicitation of votes” for the Plan. But modification could not be permitted for several reasons including that distributions had already begun. Second, the Court also noted that the gift card holders offered “no valid reason for their extended delay in filing proofs of claim” eight months after the bar date had passed.

In the end, the gift card holders were left holding nothing but souvenirs of Borders’ better times. And our readers would do well to draw two lessons from the Borders experience: first, there are a variety of important and often complex legal requirements concerning gift cards to which issuers must be attentive; and second, bankruptcy proceedings involve a host of different rules and procedures which can add complexity to already specialized areas of the law.

Rapid Realty Townsville Praised by Vendors and Landlords

Rapid Realty Townsville Team, August 2012

Townsville based and nationally trademarked real estate agency, Rapid Realty Pty Ltd is receiving increasing acknowledgement from Landlords and Vendors for "prompt and cheerful" service.

The locally established agency since 2007 is exceeding expectations in their sales and property management business.

Unlike the USA and New York based Rapid Realty, Rapid Realty Townsville is Australian owned and managed by its Australian founder.

"Receiving praise from our valued clients is invaluable and testament to the level of satisfaction being experienced in our sales and property management business"; Aaron McLeod, Rapid Realty Founder and Principal Director said.

"We have been working hard for five years nurturing our clients and their properties and developing our technology, processes and people to continually improve our services. We pride ourselves on delivering 'real service, rapid results' and, to receive praise for what we love doing is a humble experience.” Mr McLeod said.

A Rapid Realty Landlord from Cairns said; "Rapid Realty has managed two of the properties in our portfolio for several years now. The thing that differentiates Aaron and his staff is that they really do deliver. They do what they say they will do, and they do it promptly and cheerfully. They are by far the best agents we have dealt with. They spend the time on your property, including when the going gets tough. They communicate well and give us a sense that they are a genuine 'partner' in our wealth creation endeavours. What more could investors want. Thanks Aaron."

Another Rapid Realty Vendor from the Sunshine Coast said; “We were a little unsure if this was the correct way to go as there were other agents very willing to sell the property also. However, you asked for the opportunity to sell Mum’s property for two months to see how it went and even after explaining to us that December– January would be fairly quiet trading you affected the sale promptly. Aaron at all times you were courteous and polite and were very helpful to our Mum during the time that it took to complete the transaction. We wish you all the best with Rapid Realty and would have no hesitation in recommending you and your business to anyone in the future”.

Rapid Realty Townsville was foundered by Aaron McLeod in December 2007 in Townsville, North Queensland. On the 7^th December 2012, Rapid Realty will celebrate their 5^th Birthday at their Boundary Street office.

 

Source: www.rapidrealty.com.au