New Law Clarifies Sales Tax on Labor

New Law Clarifies Sales Tax on Labor

 govaffairs

NEW LAW CLARIFIES SALES TAX ON LABOR

On August 11, 2017, the Governor signed SB 628 (Various Changes to the Revenue Laws) which, among other provisions, contained several clarifying changes to sales and use tax on labor applicable to residential construction. Here is a brief description of the sales tax law and the fixes which NCHBA helped bring about:

CURRENT LAW: All labor pursuant to a “real property contract” (between a real property contractor and another person to perform construction, reconstruction, or remodeling with respect to a capital improvement) is not subject to the sales or use tax. Sales tax continues to be levied on the materials. A “capital improvement” is “an alteration to real property that is new construction, reconstruction, or remodeling of a building, structure, or fixture on land that becomes part of the real property or is permanently installed in the real property”.

In short, labor charges for new construction and most remodeling activities are not subject to sales tax on labor because they will meet the definition of “capital improvement” pursuant to a “real property contract”.

SPECIFIC EXAMPLES: NCHBA fought to keep the specific exclusion of the “performance of work that requires the issuance of a permit under the State Building Code” (a residential project that costs $15,000 or more) as a specific statutory example of a “capital improvement”. Also excluded from taxation are services performed to resolve an issue that was part of a real property contract within twelve months of the new structure being occupied for the first time (warranty call- backs). The new law also expands the definition of “capital improvement” to include patios and decks. Painting and wallpapering continue to be exempt from tax on labor except where they are “incidental” to the RMI service. NCHBA was able to expand the term “remodeling” to include “a transaction where the internal structure or design of one or more rooms or areas within a room or building are substantially changed.” However, “the term does not include a single repair, maintenance, and installation service.” Other exempt activities and are listed on the NC Department of Revenue’s website.

LAW CLEARLY STATES THAT GENERAL CONTRACTOR MUST PROVIDE AFFIDAVIT (Form E-589CI) TO SUBCONTRACTOR: To notify the subcontractor that the project is a capital improvement (and therefore, exempt), the general contractor must provide the Form E-589CI to each subcontractor. However, a separate form may not be required to be supplied to the same subcontractor for each project (see “blanket use” instructions on form).

TAX ON RMI LABOR DUE WHEN NOT A CAPITAL IMPROVEMENT: A single repair, maintenance or installation (RMI) service does not qualify as a capital improvement. The replacement of a fixture in or on a building or structure is not a capital improvement unless the replacement is a part of remodeling. See RMI examples also listed on the NC Department of Revenue’s website.

MIXED TRANSACTION TEST INCREASED TO 25%: Some remodeling projects may include activities which qualify as a capital improvement (no tax on labor) and activities that constitute a repair (tax on labor). However, no tax will be due on labor in these “mixed transactions” if the price of the repair, maintenance or installation (RMI) service does not exceed twenty-five percent (25%) of the contract price (was 10% under old law). If the RMI portion of the job exceeds 25% of the contract price, then sales and use tax applies only to the RMI labor portion of the contract.

ALL TYPES OF COMMERCIAL REMODELING ARE NOW EXEMPT: Under the old law, commercial remodeling done by a tenant or lessee was not defined as a capital improvement unless the project was given immediately to the owner. The new law fixes this problem and all types of commercial remodeling are now exempt from the sales tax on labor if it otherwise meets the definition of a capital improvement.

USE FORM E-595E WHEN PURCHASING ITEMS FOR AN RMI: Since the homeowner pays the sales tax on the entire sales price of an RMI project (labor, materials and any markup) for a repair, maintenance or installation, you should use the Form E-595E when purchasing items to use for that nonexempt project. This form notifies the retailer to not charge for the sales tax on the materials used. The Form E-595E is located on the DOR website.
FOR MORE INFORMATION: Contact Mike Carpenter, mcarpenter@nchba.org, or Tim Minton, tminton@nchba.org, or call NCHBA at (800) 662-7129.

SALES TAX ON REPAIR, MAINTENANCE AND INSTALLATION IN RESIDENTIAL CONSTRUCTION

SPECIFIC EXAMPLES: Among the specific examples of a “capital improvement” is “performance of work that requires the issuance of a permit under the State Building Code” (a residential project that costs $15,000 or more). Other examples include painting, wallpapering and landscape services. Specifically excluded from taxation are services performed to resolve an issue that was part of a real property contract within twelve months of the new structure being occupied for the first time (warranty callbacks). Home inspections, debris removal, pest control and fees for inspections required by law are also specifically exempt. Those subcontractors who operate as a “retailer-contractor” (i.e., provide subcontractor services to builders and others) are also exempt when the entity acts as a real property contractor.

TAX ON RMI LABOR DUE WHEN NOT A CAPITAL IMPROVEMENT: A single repair, maintenance or installation service does not qualify as a capital improvement. The replacement of a fixture in or on a building or structure is not a capital improvement unless the replacement is a part of remodeling. Some remodeling projects may include activities which qualify as a capital improvement (no tax on labor) and activities that constitute a repair (tax on labor). However, no tax will be due on labor in these “mixed transactions” if the price of the repair, maintenance or installation (RMI) service does not exceed ten percent (10%) of the contract price. If it exceeds 10% of the contract price, then sales and use tax applies only to the RMI labor portion of the contract.

GENERAL CONTRACTOR MUST PROVIDE AFFIDAVIT TO SUBCONTRACTOR (Form E-589CI): The NC Department of Revenue (DOR) has opined that this affidavit generally must be provided to substantiate that the work is a capital improvement. This Form E-589CI was just made available on the DOR website on 12/09/16 along with the following explanation: The N.C. Department of Revenue has published the Form E-589CI, Affidavit of Capital Improvement, and a corresponding notice. The Form E-589CI is generally required to substantiate that a contract, or a portion of work to be performed to fulfill a contract, is to be taxed for sales and use tax purposes as a real property contract with respect to a capital improvement to real property. Failure of a person to issue Form E-589CI, other than for the permitted exceptions discussed within this Important Notice, to substantiate that a transaction is for a real property contract with respect to a capital improvement subjects the transaction to tax as a retail sale of repair, maintenance, and installation services for real property in accordance with N.C. Gen. Stat. § 105-164.4(a)(16). The instructions (printed on the reverse of the form) summarize the following exceptions to DOR’s requirement to issue Form E-589CI: The following are exceptions for transactions where Form E-589CI is not required to be issued to substantiate that the transaction is taxed, as applicable, for sales and use tax purposes as a real property contract with respect to a capital improvement to real property. • Painting or wallpapering real property, or parts thereof. • Landscaping service. Form E-589CI is not required to be issued by the specific person for a transaction noted below. The exceptions do not apply to transactions between a general contractor hired to oversee the entire contract and one of its subcontractors (See “Blanket Use” of Form E-589CI (Section II) for possible exceptions.). The following exceptions do not apply to remodeling. • A real property owner or other person hires a general contractor to oversee the entire contract and the contract is for “new construction” as defined in N.C. Gen. Stat. § 105- 164.4H(e)(2). • A real property owner or other person hires a general contractor to oversee the entire contract and the contract is to rebuild or construct again a prior existing permanent building, structure, or fixture on land (reconstruction as defined in N.C. Gen. Stat. § 105- 164.4H(e)(3)). • A general contractor that purchases all tangible personal property and digital property to fulfill the real property contract and provides the employee labor to fulfill the real property contract. With respect to the form itself, the Section 1 is for “single use” (where there is no recurring business relationship between the contractor and the subcontractor) and Section II is for ‘blanket use” (where there is a recurring business relationship). Experience would suggest that most residential general contractors (whether new construction or remodeling) will be able to utilize the “blanket” version as builders typically utilize the same subcontractors on a recurring basis. [NCHBA questioned DOR why this affidavit needed to be furnished with respect to new construction as it is, by definition, a capital improvement. This issue will likely be further addressed in the upcoming session.]

DOR DIRECTIVES: On 11/15/16, the NC Department of Revenue issued two directives relative to these changes. The first, SD-16-3, addresses the application of sales and use taxes to a real property contract with respect to a capital improvement for real property. The second, SD-16-4, addresses a number of issues relative to the application of sales and use tax concerning repair, maintenance and installation (RMI). Please consult these directives for more discussion and examples.

FOR MORE INFORMATION: Contact Mike Carpenter, mcarpenter@nchba.org, or Tim Minton, tminton@nchba.org, or call NCHBA at (800) 662-7129. 

Gary Embler, NCHBA Officers Installed in Pinehurst

Gary Embler, a member of the Greater Charlotte Home Builders Association, was installed as the 2017 President of the North Carolina Home Builders Association last Wednesday, November 30 at the NCHBA Installation Dinner and Hall of Fame Awards in Pinehurst, NC.

garyemblerfamily
Embler is pictured to the right with his wife, Kelli, and their three daughters,
Kristyn, Kelsie and Kaelyn.

Officers of the 2017 NCHBA Executive Committee, NC Professional Women in Building Council and Executive Officer Council also took their oaths of office.

NCHBA STARS Awards

STARS Awards Program


Call for Entries:

Entries are now being accepted for the prestigious STARS Awards program, which recognizes the outstanding professional performance of HBA members throughout the region! Don’t miss out as we salute builders, associates, realtors, media and advertising professionals, and many others who shine above the rest.
The STARS Awards Gala will be held September 16 in Charlotte as part of the annual 21st Century Building Expo & Conference. This awards program is hosted by the North Carolina Home Builders Assocation. All NAHB members are eligible to enter.

The early bird entry deadline is June 19, 2015 ($100/entry). The final entry deadline is July 8, 2015 ($150/entry).


 

Click here for printable form

 


NCHBA Actions to Benefit Members

NCHBA Actions to Benefit Members

NCHBA UPDATE


Top 10 NCHBA Actions to Benefit Members in 2014 (Link to PDF)

1. Workers’ compensation reform produces rate reduction —NCHBA historically has been, and continues to be, one of the key leaders of a business coalition which, over the past four years, has successfully sought the enactment of a number of significant workers comp reform measures. In 2014, at the urging of this coalition, the General Assembly disapproved unfavorable rules adopted by the Industrial Commission and provided specific legislative direction as to how the replacement rules were to be rewritten; created specific terms for Deputy Industrial Commissioners (the frontline hearing officers in workers’ comp claims) in order to provide more accountability and balance; limited the repackaging of prescription drugs for resale by physicians; and stopped a bill that would have doubled the permissible awards for the loss of, or injury to, an organ. These successes, together with reforms enacted since 2011, resulted in a reduction of workers’ comp rates as proposed by the NC Rate Bureau and approved by the Commissioner of Insurance. These rate reductions will take effect beginning in April of 2015. COST SAVINGS: Workers’ compensation insurance rates will decline by an average of 3.4% in April and will favorably impact about 95% of all employers. The actual savings realized will depend on the employer’s claims experience and the specific job classifications insured.
2. Successfully urged the Building Code Council to enact important code changes which produced significant cost savings—NCHBA Director of Construction & Codes Robert Privott is a constant fixture at all meetings of the Building Code Council (BCC) and its various committees. His expert advocacy and credibility with the BCC again produced significant cost savings to homebuyers thorough several key amendments to the code. Examples include: amendment to the mechanical section of the residential code for domestic exhaust hood systems capable of exhausting in excess of 400 cubic feet per minute shall be provided with a makeup air at a rate that is excess of 400 cubic feet per minute (estimated savings per house: $450); amendment for tempered glazing requirements estimated savings of $100 per window (estimated savings per house on average of 5 windows per house: $500); amendment to the residential code to allow the use of self-drilling screw fasteners to attach decks (estimated savings per house: $100 depending on size of deck); amendments to plumbing section of residential code which allows for more functional design in cabinetry layouts for smaller homes and townhomes and amendment to allow for use of bonded waterproof membranes for shower drains (while neither of these changes will produce significant cost savings, the former provides more flexibility and the latter allows the use of new technology often requested by homeowners). COST SAVINGS: hundreds of thousands of dollars when applied statewide.
3. Reform of NC’s Unemployment Compensation System and repayment of $2.3 Billion of NC $2.8 Billion debt results in reduction of FUTA surcharge — Beginning with legislation enacted in 2012, NCHBA helped lead a business coalition in a major reform of NC’s broken unemployment compensation system and reducing the burden on North Carolina employers by accelerating the repayment of $2.8 billion in debt owed to the federal government. As a result of those efforts, the US Department of Labor in November granted a waiver which reduces the surcharge that NC employers have been paying on their federal FUTA taxes because of the debt. COST SAVINGS: The waiver reduces the employers’ tax increase for the 2014 tax year from $77 per employee to $21 per employee. While the surcharge will increase $21 per employee on Jan. 1 for the 2015 tax year, the entire surcharge will be eliminated once the loan is fully repaid likely in May of 2015. Employers who pay at the higher rate will be able to recoup the surcharges they pay in 2015 once the debt is eliminated.
4. Helped Pass Regulatory Reform Act of 2014–NCHBA assisted a broad business coalition in the enactment of a fourth sweeping regulatory reform act in as many years. Passage of SB 734 (Regulatory Reform Act of 2014), among other important reforms, allows a permit applicant to choose which version of any state or local rule or ordinance will apply if the rule or ordinance changes between the time of submission of the application and the time of decision (except for a zoning permit); provides that any development activity on contiguous property in coastal counties under a subdivision plat approved as of 07/03/12 shall comply with the stormwater provisions in
existence as of the date of issuance and does not have to comply with subsequently enacted provisions; exempts construction and demolition landfills from minimum financial responsibility requirements applicable to other solid waste management facilities; reforms on-site wastewater regulations; and USPS cluster mailbox units are excluded from stormwater regulation for single family or duplex residences. COST SAVINGS: Hundreds of thousands, if not millions, of dollars.
5. Negotiated major reductions in workers’ comp hospital fee schedule —Workers’ Comp medical reimbursement rates are set by a fee schedule adopted by the NC Industrial Commission (IC). For many years, the medical cost component of our system has significantly exceeded the national average due primarily to our hospitals receiving substantially higher reimbursements than hospitals in other states. Last year, NCHBA helped lead a business coalition that caused the General Assembly to enact a law to direct the IC to adopt a new fee schedule based on applicable Medicare payment methodologies. In response to this new law, earlier this year, the IC ordered mediation between the business community, the insurance industry, the medical association and the hospital association. This two-day mediation was conducted at the Builders First Center. This mediation produced a resolution of this matter which has since been adopted by the IC. The new fee schedule substantially reduces the reimbursements to hospitals while increasing the reimbursements to physicians. This new fee schedule will be implemented on 04/01/15 and will be phased in over three years. COST SAVINGS: The implementation of this new fee schedule will produce millions of dollars in cost savings to NC employers which likely will result in further reductions in workers’ comp rates in the future.
6. Continued Environmental Reform Efforts— NCHBA assisted a broad business coalition in the enactment of several important environmental reform measures. SB 734 (Regulatory Reform Act of 2014) also contained several environmental reforms including: a provision which increases the exemption from state regulation of isolated wetlands which are less than or equal to 1 acre east of I-95 (was 1/3 acre) or 1/3 acre west of I-95 (was 1/10 acre) as well as reducing mitigation ratios from 2:1 to 1:1 and the term “isolated wetlands” is defined reducing the chances of arbitrary field determinations; riparian buffer mitigation requirements were substantially improved by the passage of SB 883 (Mitigation Buffer Rule) and private developers will be allowed the same stormwater BMP standards as DOT currently uses per the passage of SB 294 (Allow Use of DOT Stormwater BMPs). COST SAVINGS: Millions of dollars in land development costs avoided statewide.
7. Protected Builders from Abusive Patent Trolls—Sec. 2.1 of SB 848 (NC Commerce Protection Act of 2014) creates protections to deter “patent trolls” from threats and unfounded litigation. Many businesses and builders in other states have been victims of this conduct. COST SAVINGS: Potentially millions of dollars if patent trolls are deterred from pursuing unfounded claims in NC by this new law.
8. Successfully lobbied for continued significant appropriation to Housing Trust Fund and preservation of Workforce Housing Investment Program—Appropriation of $7 million to Housing Trust Fund; extended former low-income housing tax credit program with $10 million appropriation. NCHBA HELPED obtain funding for these critical programs administered by the NC Housing Finance Agency.
9. Continued NCHBA on path to solid financial footing assuring continued superior member services—Building on a successful 2013, projections for 2014 show NCHBA finishing the year with an even greater profit margin. Improved membership numbers; increased revenue from the 21st Century Building Expo; and significant growth in royalty income have made that result possible. Even during the darkest times, NCHBA was able to maintain critical state services to its members. COST SAVINGS: No state dues increase for members in 2014 (state dues of $60 per year have not increased since 1999).
10. Continued to Play Prominent Leadership Role in NAHB–In January, our own Rick Judson was elected 2014 NAHB Immediate-Past Chairman and Kathy Craven Snodgrass was elected to her second year as NAHB Associate Chairman. In addition, many of our NCHBA Members participated in important NAHB committees or councils. NCHBA continues to be the federation’s largest state association (almost 14,000 members and we are the only state over 10,000 members); the Raleigh Wake Co. HBA held its position as the nation’s largest local.


NCHBA Quarterly Meetings

NCHBA holds four meeting each year, during which the NCHBA Committees and Board of Directors meet.

Raleigh – Feb. 17
Raleigh – May 5 & 6 (including Legislative Days)
Charlotte – Sept. 15 – 17 (including STARS Awards)
Charlotte – Dec. 10 (including NCHBA new board installation)

The Quarterly Meetings are an opportunity for members from across the state to meet and discuss issues affecting the home building industry. The ideas, goals and plans discussed at the meetings help guide the future of the association and the industry. All members are invited to join a committee of their choice and sit in on the Board of Directors meetings. A delegate from HBAWS attends the quarterly meetings and members are encouraged to join us.

Listed below are the NCHBA committees with a brief description of each one and times the committee meets at quarterly NCHBA meetings. If you would like to join a committee, email Sara Whitley with your name, contact information and the committee you want to join. Please let us know by December 31, 2014 so that you will begin receiving meeting notices. 

Associate Members: provides supple­mentary representation of the total membership in a coop­erative effort for the benefit of the association. 1:00 PM – 2:30 PM

Building Codes: reviews, formulates and informs members of proposed changes to the NC Building Codes; pursues adoption of codes that protect the affordability of housing while providing necessary protection to human health and safety. 8:30 AM – 10:00 AM

Communications: provides advice and suggestions for NCHBA’s internal and external communications; promotes attendance at NCHBA events and meetings. 10:30 AM – 12 Noon

Construction Careers: evaluates existing program and prepares recommendations for voc. ed. training. 1 – 2:30 PM

Land Development: assesses the needs of the land development community, reviews issues relevant to land development and particularly issues which may impact cost of land and affordability of housing constructed on land. 9 AM – 10:30 AM (meet with Regulatory Affairs

Legislative: monitors the activities of the ­N.C. General Assembly affecting the home building industry and recom­mends desirable changes, and opposes undesirable changes, in the law. 1 PM – 2:30 PM

Membership:  works on recruitment and retention of members; plans and executes the Membership Drive; evaluates member services; assists locals with membership contests, orientation, retention methods, etc. 10 AM – 12 Noon

Professional Women In Building: promotes, enhances and supports women in the home building. 10 – 11:30 AM

Regulatory Affairs & Workforce Housing:  reviews regulatory chan­ges affecting the industry, keeps member­ship advised of regulatory issues and provides assistance to locals on issues. Develops initiatives and incentives for the production of affordable housing, reviews affordable housing programs. 9 AM – 10:30 AM (meets with Land Development)


New Book Helps Aging-in-Place Professionals

Steve Monroe’s new book, “Transforming Lives, Renovating Homes: Marketing Essentials for Aging in Place Specialists” is an inclusive marketing guide for the Aging-In-Place professional. Content includes preparing a SWOT, budget, market analysis, use of social media, preparing an effective website, creating a AIP focused network, plus much more.

Available from Steve at www.stevemonroeenterprises.com.