Before moving on, let’s define a few things in case this is unfamiliar or unclear.  Full details (specific to CA) found here.

• Nexus is the level of connection with a state necessary under the U.S. Commerce Clause to permit the state to impose a tax or a sales tax collection duty on out-of-state businesses doing business in the state.
• Sales tax is imposed on a state’s retailers based on gross receipts from the sales of tangible goods.
• Use tax is imposed on a state’s consumers who purchase goods from out-of-state retailers.
• If a sales tax is not collected, consumers are supposed to submit it as a user tax.  But, honestly, who do you know that does that?

If you were a merchant with retail trade presence in NY, this had zero effect on you.  Online retailers without a trade presence in NY were faced with the choice of now taxing customers or removing affiliates who reside in NY from their program.  The negative impact is obvious; any affiliate registered in NY lost a revenue stream if they were dropped from the merchant’s program.  That merchant also potentially lost a revenue-driving affiliate or put another hurdle into the customer’s purchase decision process (charging sales tax).

Similar to the legislature passed in New York, several states (CA, CT, MN, HI, IL, TN, & NC) are now considering enacting their own that will affect retailers’ taxable nexus. Digging a little deeper, under these bills, a retailer making taxable sales is presumed to be soliciting business through an independent contractor (affiliates) if that retailer enters into an agreement with a resident of a state under which the resident, for a commission or other consideration, refers potential customers. In many cases, this provision only applies if the cumulative gross receipts from sales by an affiliate exceed a certain amount (I’ve seen ranges of $2k to $10k).

The problem with this is that affiliates are not exactly independent contractors.  In my opinion, the fact that they are called affiliates, in this case, is misleading.  It does not mean the same in the online marketing world as it does elsewhere.  While there are many affiliates with fairly large businesses, a good amount of affiliates work from home & are the independent/entrepreneurial people we should be rewarding, not penalizing.

As a retailer, the short-term & easy solution would be to remove the affiliates if the legislature is passed, state-by-state.  However, there is a good possibility this will gain momentum throughout the rest of the states.  If it becomes nationwide & your initial action is to kick out affiliates, you will have a difficult time getting them back.  There is also speculation that the legal language could be written loose enough to include the likes of search engines & interactive ad agencies.

I am sure you are quickly realizing how this makes zero sense.  In fact, precedence was set for this 20 years ago.

There is growing support from the likes of Google, LinkShare, Commission Junction, & many affiliates in general to get in touch with their local representatives & media outlets to spread the word, educate lawmakers & help defeat these bills in each state.  It seems as if lawmakers do not truly understand the impact this would have & are ignoring what has taken place in New York (many retailers completely dropping affiliates in that state).  Those supporting this legislation are simply seeing a pool of money that is not being taxed.  They do not understand that this is going to put more people in the unemployment line (less taxable income) & decrease sales for an online retailer in that state.

Here is a status by state; I probably will not do the best job at keeping this updated, though I will be actively aware of the issues.  Much of the information I have gleaned here has come from the resources listed at the bottom of this post.  A lot of the important due diligence & legwork has been done by Melanie Seery, Brian Littleton, & Missy Ward…at least their sites have been the resource for the majority of my content.

• Connecticut: SB 806.  The  Joint Finance Committee vote was held on 3.26 & the bill was  approved.  The joint bill is now filed with the Legislative Commissioners’ Office. After fiscal analysis it will go to the Houses for vote & then on to the Governor.
• California: AB178.  The bill was officially referred to the Committee on Revenue & Tax. The committee has set a hearing date for April 13.
• Minnesota: SF 282 was supposed to be reviewed by MN’s Senate on 3.24, but was delayed. No further notification has been given on when it will be reviewed.
• Hawaii: HB 1405.  The process will probably take another couple of weeks. I believe that the next steps are the 2nd & 3rd reading followed by the House vote, then on to the Governor.
• Tennessee: SB 1741 & HB 1947.  Has been assigned to the House & Senate’s sub-committees.
• North Carolina: HB 558 & SB S487.  Both Houses sent the bills to their Finance Committees earlier this month.
• Illinois: Have heard this may be underway, but do not have any details yet.

I encourage you to not only read what’s been written, but also dive into the bills, by state.  It is not enough that we merely contact local representatives & send an email or letter.  If you want to persuade lawmakers, you are going to have to educate them.

What You Can Do

• Educate yourself & others.
• Spread the word.
• Keep on top of the issues.
• Speak directly with those in the online retail & affiliate marketing industries who are close to this.
• Contact your local representatives.
• Use your network to find out what media contacts you have.  If you have none, make them.
• As an affiliate; find out what retailers are in these states as there will be a material impact on your business.
• As an online retailer; don’t make any rash decisions & think long-term.  Ensure your online marketing team, agency, etc. & all key decision makers are tuned in & are looking at this strategically.  Openly communicate & collaborate with your affiliates.

Resources

• NYAffiliateVoice (Melanie Seery)
• ShareASale Blog (Brian Littleton)
• California AB178 for Dummies Podcast (Missy Ward)
• Affiliate Tax Laws Forum (ABestWeb)

Follow Along

• Twitter Search for #advertisingtax
• Twitter Search for #affiliatetax

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This starts with your boss & possibly his/her boss. When you don’t have direct channels to the top-level decision makers, it’s important to have your voice represented by someone who does.  If you’re afraid your boss is going to take credit for your work, it would be smart to talk to the person to whom your boss reports.  This is also good if your boss is an idiot or inept. 

Numbers make decisions very easy.  The more data you have to support your thinking, the better your odds at convincing your company to approve it become.  If you’re looking to increase site traffic, are your campaigns consistently driving more people to your site?  Do these visitors spend more time on the site than the average visitor?  Are they converting at a higher rate?  Have they signed up to receive emails from  you or are they looking at things like the store locator?

Building on that, you are going to want to show your campaign’s visitors are converting on the site.  You will want to see if they are spending more per order than your site’s current average.  The more people you bring in to your customer retention pool, the better your chances for driving sustained, incremental revenue.  More sales proves that you have the ability to make more money for the company, making stockholders very happy.  See what you just did…the man appreciates that.

As long as you are making the decision for you company very easy, you stand a great chance of being heard.  Try to anticipate the questions they will ask after reviewing your analysis.  Whenever possible, you want to provide information directly to the source.  The side benefit of this is that you have gained great experience in presenting to the powers that be & establishing new connections.  Most successful people will tell you this is your foundation for success.

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All of this got me thinking.  When did I decide on a career in advertising & marketing?  As I am wont to do, I then thought some more.  I want you to tell me when you knew a career in advertising & marketing would be your path of choice.  Have you ever doubted or regretted your decision?  What are some of your fondest memories?  How do you stay motivated & inspired?

Me?

I majored in Business Administration & chose to take the vast majority of my junior & senior year electives in marketing-focused classes.  A class I took during my last semester was essentially a culmination of everything I learned within my major as we entered the American Advertising Federation’s National Student Advertising Competition.  Back in the Fall of 1998, our project was to create an advertising campaign for what is now Toyota’s Prius.  This was my initial foray into the dynamic world of advertising; cross-functional teams, lots of research, story boards, long hours, stressful situations, clashing personalities, & deadlines. 

I loved it; I absolutely loved it & was disappointed that I would not be around in the Spring (because I was graduating) for the actual competition.  We did not end up winning (so I didn’t miss out on much), but the experience left an indelible mark on me.  I wanted to work in advertising, but not just behind the scenes (you can blame that on those damn Simmons Market Research books). 

There have been lots of pitfalls along the way; I even considered doing something else about seven years ago.  The internet & all its wonders saved me.  Its consistent evolution, fueled by some really smart & dedicated people & innovative brands, motivates me & continually piques my curiosity.

Anything you would like to share, please do!  Heck, even if your career is in something unrelated to advertising or marketing, this applies to you.  So, let’s hear it…

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This is all about opening up the lines of communication with the people responsible for managing & executing what makes your business go.  Consider them the gatekeepers of your success.  Marketing initiatives often take a back seat in the ecommerce world; projects aimed at improving site conversion, order attachment, cart abandonment, & navigation are more important than implementing tracking codes or producing banners for your campaigns. 

These things take time & resources & competitive pressures make timing & speed to market a crucial variable.  This is likely to cause a backlog of projects as most technology companies are constantly looking for good IT people.  A backlog plus limited manpower equals slim pickings for you, Marty Marketer.

So, how do you justify that request for a larger marketing budget?  You connect yourself with the right people, across the company, regardless of regional location.  We all can be more sophisticated with our marketing & relationship development/management, but too often get consumed within our own workload & don’t bother to actually meet & talk to people. 

Get familiar with the people I have listed below, especially if they’re in the same building or campus.  If they’re elsewhere schedule time when you travel to meet them.  Don’t travel?  Think of something that will get you out there.  Or beg; it doesn’t cost much for your company to provide airfare, hotel, & food/gas expenses compared the negative cost of failing or stale campaigns.

Merchandisers: Quite possibly the most important people as it relates to you driving incremental sales. 

• They know what sells & why & so do their vendors. 
• Seasonality, product launches, in-stock vs. out-of-stock are but a few things you need to be plugged into.

IT: These guys & gals cover a wide variety of things you need. 

• The product & web development folks will keep you up-to-date with upcoming site changes, enhancements, & functionality.  It’s important for you to be aware of new landing pages & URL changes to eliminate or minimize campaign downtime. 
• You know how your project got denied for implementation anytime within the next 4 months?  Besides escalating through your department, if you’re actually nice to these people, they might help push your projects through in half the time required or less. 
• And don’t forget your help desk people.  That one to two day turnaround to get your laptop, Treo, printer, or phone fixed can turn into mere hours.  Don’t forget to repay them for favors; food & alcohol go a long way.

Creative: Anything you are going to publish graphically online should look good. 

• If you want your media campaign to drive as much revenue as possible; you need to make sure what’s produced for you is legit. 
• It’s so easy, but too many online retailers fail miserably in this department.  It’s not because the personnel are bad; they just don’t have the right direction.  Help them & be clear about what you need.

Public Relations: Being on top of company announcements will allow you to create new campaigns or be prepared to react to news, whether it’s positive or negative. 

• Crisis & issues management is vastly underutilized in the online space. 
• Too many brands are not aware of what’s being said; by the time they figure it out, it’s too late.  You are key in eliminating or minimizing crap like this.

Customer Service: If you’re smart, you are monitoring the online chatter specific to your brand. 

• Whether positive or negative, feed it to customer service; they can facilitate things for customers & improve their experience or at least somewhat appease an irate customer.  We all know the damage one bad opinion with motivation to tell all can do.

Front Desk: From routing calls to them being one of the few people you see this often, they can make your life easier & more pleasant.

If you or someone you know is not listed here, but you feel they’re just as important, I would welcome the feedback.  As you can see, I am not opposed to communicating.

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The client is pissed & the agency is left to pick up the pieces internally while externally determining what is necessary to reassure the client that everything will be just dandy.  Usually, an amicable resolution can be reached.  Objectives & goals may need to be reset, strategy & tactics are adjusted &, consequently, the client gets what they need.

Waste of money…on both sides.  The agency eats the time they spend finding a resolution & will most likely credit the client for time spent on what did not work.  The client misses opportunities to build/promote their brand, drive more sales, respond to negative press in a timely manner, etc.

Over the next few weeks, I will delve into the bulleted topics below.  I feel there is a lot a client can do to set themselves & their agency up for success.  Yeah, I know this works both ways; read on.  This series will be mainly geared towards ecommerce (one of my specialties), but the astute reader will be able to draw parallels across the entire digital space. 

• Getting Yourself Connected – At least one person on your marketing team should have a reliable contact on the following teams: Merchandise, IT (web development, help desk, product development), Creative, PR, Customer Service, front desk (if for only the fact that you see this person more than most people you love)
• Aggregating & Analyzing Data – Become one with it; everyone above you has a background in concrete numbers & has planned & made decisions according to what the numbers tell them.  Think they’re wrong?  Prove it…with numbers.
• Internally Selling Upward – Both yourself & new ideas
• Effectively Leveraging Available Resources – We are all strapped for time; understanding how to get what you need when there is seemingly no help will set you apart from everyone else.
• Evaluating & Changing Process – There is nothing wrong with occasionally kicking the tires. 

The underlying theme is communication that enables client & agency to make informed decisions in the most efficient & effective manner possible.  It’s a lot of work, but this industry is not for the faint of heart.

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