Missouri Sales and Use Tax Protest, Refund Claim, and AHC Appeal

MISSOURI SALES AND USE TAX PROTEST, REFUND CLAIM, AND APPEAL

TABLE OF CONTENTS

1. Procedural Track and Critical Deadlines
2. Section A — Protest of Notice of Sales/Use Tax Assessment
3. Section B — Sales/Use Tax Refund Claim
4. Section C — Petition to Administrative Hearing Commission
5. Section D — Economic Nexus and Wayfair Compliance Statement
6. Verification, Signature, and Service
7. Missouri Practice Notes
8. Sources and References

1. PROCEDURAL TRACK AND CRITICAL DEADLINES

2. SECTION A — PROTEST OF NOTICE OF SALES/USE TAX ASSESSMENT

Date: [__/__/____]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED

Missouri Department of Revenue

Taxation Division — Sales/Use Tax Bureau

P.O. Box 840

Jefferson City, MO 65105-0840

Re: Protest of Notice of Sales/Use Tax Assessment

To Whom It May Concern:

Pursuant to RSMo § 144.261, Taxpayer hereby files this timely written protest to the above-referenced Notice of Assessment within sixty (60) days of issuance.

A.1. Taxpayer Information and Business Activity

1.1. Taxpayer is [a Missouri corporation / a foreign corporation registered to do business in Missouri / a sole proprietorship / an LLC] with its principal place of business at [ADDRESS].

1.2. Taxpayer's business consists of [describe products/services and customer base].

1.3. Taxpayer [is / is not] registered as a Missouri sales tax vendor under Certificate of Registration No. [NUMBER].

1.4. Taxpayer [has / does not have] physical presence in Missouri consisting of [employees / inventory / property / agents].

A.2. Adjustments Protested

Taxpayer protests the following adjustments:

☐ Reclassification of exempt sales as taxable in the amount of $[AMOUNT];

☐ Disallowance of resale exemptions under RSMo § 144.010.1(11) and § 144.210 totaling $[AMOUNT];

☐ Disallowance of manufacturing exemption under RSMo § 144.030 totaling $[AMOUNT];

☐ Disallowance of common-carrier or interstate-commerce exemption totaling $[AMOUNT];

☐ Imposition of use tax on out-of-state purchases totaling $[AMOUNT];

☐ Estimated assessment based on statistical sample projection of $[AMOUNT];

☐ Application of economic-nexus standard under RSMo § 144.605(2)(e) prior to its effective date of January 1, 2023;

☐ Imposition of penalties under RSMo § 144.250;

☐ Other: [DESCRIBE].

A.3. Statement of Facts

3.1. [Set forth chronological narrative: business model, product/service taxability analysis, exemption certificates obtained, sourcing, and reporting positions.]

3.2. [Identify resale, exempt-organization, and direct-pay certificates collected pursuant to RSMo § 144.210.]

3.3. [Address physical presence and any economic-nexus thresholds for the periods at issue.]

A.4. Legal Argument

4.1. Exemption Certificates. Taxpayer obtained valid Missouri Form 149 (or equivalent) resale/exemption certificates from purchasers in good faith pursuant to RSMo § 144.210. The Department's disallowance lacks evidentiary support.

4.2. Manufacturing Exemption. Taxpayer's purchases qualify for the integrated-plant exemption under RSMo § 144.030.2(4), (5), and (6) as [machinery/equipment used directly in manufacturing / replacement parts / energy used in processing].

4.3. Resale. Items reclassified as taxable were in fact purchased for resale in Taxpayer's regular course of business and are exempt under RSMo § 144.010.1(11).

4.4. Pre-2023 Economic Nexus. To the extent the Department applies the economic-nexus standard of RSMo § 144.605(2)(e) to periods before January 1, 2023, such application is unlawful. The economic-nexus statute, enacted by SB 153 (2021), expressly takes effect January 1, 2023; pre-effective-date application violates due process and the statute's plain text.

4.5. Sample Methodology. The Department's sample design [fails to satisfy the requirements of 12 CSR 10-41.010 because (a) the population was improperly defined, (b) the sample was not random, (c) the projection exceeds the sampling-error margin].

4.6. Interstate Commerce / Sourcing. Sales sourced outside Missouri under RSMo § 144.605(8) and § 144.020 are not subject to Missouri sales tax.

A.5. Penalty Abatement

5.1. Taxpayer requests abatement of penalties under RSMo § 144.250 based on [reasonable cause / good-faith reliance on professional advice / first-time error / Department-issued guidance].

A.6. Relief Requested

WHEREFORE, Taxpayer respectfully requests that the Department:

• A. Withdraw the Notice of Assessment in full;
• B. Alternatively, abate $[AMOUNT] of the asserted tax plus all related penalties and interest;
• C. Schedule an informal conference with the Department's protest unit;
• D. Issue written findings setting forth the legal and factual basis of any sustained adjustment; and
• E. Grant such further relief as is just and proper.

3. SECTION B — SALES/USE TAX REFUND CLAIM

Date: [__/__/____]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED

Missouri Department of Revenue

Sales/Use Tax Refund Section

P.O. Box 3350

Jefferson City, MO 65105-3350

CLAIM FOR REFUND OF SALES AND USE TAX

Pursuant to RSMo § 144.190

B.1. Claimant Information

B.2. Refund Amount and Period

B.3. Statement of Specific Grounds

Pursuant to RSMo § 144.190.2, Claimant states the following specific grounds for refund:

☐ Erroneous Collection. Tax was paid on transactions exempt under RSMo § 144.030 (manufacturing), § 144.062 (construction), § 144.054 (utilities used in manufacturing), or other identified exemption: [CITE].

☐ Resale. Tax was paid on items resold by Claimant; exemption certificates retained pursuant to § 144.210.

☐ Bad Debt. Tax was previously remitted on sales subsequently written off as uncollectible under RSMo § 144.083 and federal income tax standards.

☐ Sourcing Error. Tax was paid on transactions sourced outside Missouri under § 144.605(8).

☐ Duplicate Payment. Tax was paid more than once on the same transaction.

☐ Wayfair / Pre-2023 Application. Tax was collected in error for periods prior to January 1, 2023 based on economic-nexus standards not yet in effect.

☐ Other: [DESCRIBE].

B.4. Direct-Pay Purchaser Certification (if applicable)

For purchasers with annual Missouri purchases exceeding $750,000 claiming directly under RSMo § 144.190:

☐ Notarized assignment of rights from seller is attached as Exhibit B-1;

OR

☐ Documentation of good-faith efforts to obtain assignment is attached as Exhibit B-2 (correspondence with seller, response or non-response).

B.5. Supporting Documentation

The following supporting documents are attached:

☐ Copies of original sales/use tax returns (Form 53-1 or 53-V);

☐ Invoices and proof of payment;

☐ Exemption certificates (Form 149) where applicable;

☐ Reconciliation schedule reconciling claimed amounts to returns;

☐ Affidavit of records custodian;

☐ Other: [DESCRIBE].

B.6. Interest

Pursuant to RSMo § 32.065 and § 144.190, Claimant requests interest on the refund from the date of overpayment.

B.7. Restriction Acknowledgment

Claimant acknowledges that under RSMo § 144.190.5, after receiving an initial refund on a specific issue, subsequent refund claims on the same issue for later tax periods are prohibited unless based on (i) new exemption certificates, (ii) court decisions, or (iii) regulatory changes.

4. SECTION C — PETITION TO ADMINISTRATIVE HEARING COMMISSION

BEFORE THE ADMINISTRATIVE HEARING COMMISSION

STATE OF MISSOURI

Case No. [________________________________]

PETITION FOR REVIEW OF FINAL DECISION OF DIRECTOR OF REVENUE — SALES/USE TAX

COMES NOW Petitioner pursuant to RSMo § 621.050 and RSMo Chapter 536, and petitions the Administrative Hearing Commission for review of the final decision of the Director of Revenue, stating:

C.1. Jurisdiction and Timeliness

1.1. The Commission has jurisdiction under RSMo § 621.050.1.

1.2. The Director of Revenue issued a final decision dated [__/__/____] (attached as Exhibit A), [mailed / delivered] on [__/__/____].

1.3. This Petition is filed within thirty (30) days of mailing/delivery and is timely under § 621.050.1.

1.4. This Petition is sent by certified mail and is deemed filed on the date mailed under § 621.050.3.

C.2. Subject Matter

2.1. The Final Decision concerns Missouri [sales / use / vendor's use / consumer's use] tax for the period(s) [PERIOD(S)].

2.2. The Director's assessment totals $[AMOUNT] in tax, $[AMOUNT] in penalty, and $[AMOUNT] in interest.

C.3. Specific Grounds for Reversal

3.1. [Ground 1 — e.g., the Director's interpretation of the manufacturing exemption under RSMo § 144.030 conflicts with controlling authority];

3.2. [Ground 2 — e.g., the Director improperly applied economic-nexus standards under § 144.605(2)(e) to pre-January 1, 2023 periods];

3.3. [Ground 3 — e.g., the Director's sample methodology violates 12 CSR 10-41.010];

3.4. [Ground 4 — e.g., the assessment is barred by the statute of limitations under RSMo § 144.220].

C.4. Burden of Proof

4.1. Pursuant to RSMo § 136.300, the Department bears the burden of proof on factual issues regarding application of tax to Petitioner's transactions, where Petitioner has cooperated and produced books and records.

4.2. Under RSMo § 621.050.5, the Director bears the burden on fraud, transferee liability, and any increase to the asserted deficiency.

C.5. Prayer

WHEREFORE, Petitioner respectfully requests that the Commission:

• A. Set this matter for hearing;
• B. Reverse the Director's Final Decision;
• C. Determine that no tax, penalty, or interest is owed for the period(s) at issue;
• D. Order any refund warranted with interest under RSMo § 32.065; and
• E. Grant such further relief as is just and proper.

5. SECTION D — ECONOMIC NEXUS AND WAYFAIR COMPLIANCE STATEMENT

D.1. Statutory Framework

1.1. Missouri's economic-nexus standard is codified at RSMo § 144.605(2)(e), which provides that a vendor "engages in business activities within this state" if the vendor's "gross receipts from taxable sales from delivery of tangible personal property into this state in the previous calendar year or current calendar year exceeds one hundred thousand dollars."

1.2. The provision was enacted by Missouri SB 153 (2021) and took effect January 1, 2023.

1.3. Missouri's standard uses a single $100,000 gross-receipts threshold and does not include a transaction-count component (unlike many other states' Wayfair statutes).

1.4. Vendors meeting the threshold must collect and remit Missouri tax for at least twelve (12) months, with collection beginning within three months of the end of the calendar quarter in which the threshold is exceeded.

D.2. Taxpayer Threshold Analysis

D.3. Position Statement

3.1. ☐ Pre-Effective-Date. Taxpayer asserts that any imposition of collection or registration obligations for periods before January 1, 2023 based on economic nexus is unlawful, as the statutory authority did not exist.

3.2. ☐ Below Threshold. Taxpayer's gross receipts from delivery into Missouri did not exceed $100,000 in either the prior or current calendar year and Taxpayer therefore had no collection obligation under § 144.605(2)(e).

3.3. ☐ Marketplace Facilitator. Sales were facilitated by a registered marketplace facilitator under RSMo § 144.752, which is responsible for collection. Taxpayer is not the obligated vendor.

3.4. ☐ Threshold Met — Compliance Achieved. Taxpayer crossed the threshold on [__/__/____] and registered with the Department on [__/__/____], beginning collection on [__/__/____], in compliance with the three-month grace under § 144.605.

6. VERIFICATION, SIGNATURE, AND SERVICE

6.1. Verification

STATE OF MISSOURI

COUNTY OF [COUNTY]

I, [NAME], being duly sworn, depose and state that I am [the Taxpayer / a duly authorized officer of Taxpayer]; that I have read the foregoing [Protest / Refund Claim / Petition]; and that the statements of fact contained therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[NAME], [TITLE]

Subscribed and sworn before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

6.2. Counsel Signature

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Mo. Bar No. [####]

Counsel for [Taxpayer / Petitioner / Claimant]

[ADDRESS]

Telephone: [NUMBER]

Email: [EMAIL]

6.3. Certificate of Service

I hereby certify that on the [____] day of [_______________], 20[____], the foregoing was served by certified mail, return receipt requested, upon:

General Counsel

Missouri Department of Revenue

301 W. High Street, Room 670

P.O. Box 475

Jefferson City, MO 65105-0475

[________________________________]

[ATTORNEY NAME]

7. MISSOURI PRACTICE NOTES

• Late Wayfair adoption. Missouri was the LAST state with a general sales tax to enact a post-Wayfair economic-nexus regime. SB 153 (2021) codified the standard at RSMo § 144.605(2)(e) and made it effective January 1, 2023. Any assertion of remote-seller obligations before that date should be challenged. The Missouri threshold is $100,000 gross receipts only — there is no transaction-count alternative.
• Marketplace facilitator collection. RSMo § 144.752 (effective January 1, 2023) places primary collection responsibility on marketplace facilitators meeting the same $100,000 threshold. Sellers selling exclusively through facilitators may be relieved of registration.
• Ten-year refund window. RSMo § 144.190 allows refund claims within ten (10) years of overpayment — among the longest in the U.S. Verify whether each invoice falls within the period before excluding from a claim.
• 60-day protest window. Notice of Assessment protests must be filed within sixty (60) days under RSMo § 144.261. This is the gateway to the AHC track.
• 30-day AHC deadline. Under RSMo § 621.050, the petition must be filed within thirty days of the Director's final decision being mailed or delivered (whichever is earlier). Use certified mail for the mailing-date filing rule.
• Sample methodology challenges. Auditors routinely use statistical sampling under 12 CSR 10-41.010. Challenge population definition, randomization, and projection. See, e.g., Brinker Mo., Inc. v. Director of Revenue, 319 S.W.3d 433 (Mo. banc 2010).
• Manufacturing exemption. RSMo § 144.030.2(4)–(6) provides an integrated-plant exemption for machinery, equipment, and certain energy/utilities used directly in manufacturing — frequently litigated; consult Department Letter Rulings.
• Bad debt deduction. RSMo § 144.083 allows recovery of tax remitted on sales later written off as uncollectible, subject to federal § 166 standards.
• Direct-pay purchasers. Annual purchases > $750,000 may file refund claims directly without going through the seller, provided notarized assignment of rights or documented good-faith efforts to obtain one are attached (RSMo § 144.190.4(2)).
• Records retention. RSMo § 144.320 requires three (3) years' retention; six to seven is best practice given § 143.711 omission rules.
• Penalty abatement. RSMo § 144.250 penalties may be abated for reasonable cause; document reliance on professional advice or Department guidance to support abatement.
• Constitutional challenges. Wayfair permits economic nexus only when the state regime does not unduly burden interstate commerce. Challenge any retroactive or disproportionate application; cite Quill Corp. v. North Dakota, 504 U.S. 298 (1992) (overruled in part), and South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).

8. SOURCES AND REFERENCES

• RSMo Chapter 144 (Sales and Use Tax) — https://revisor.mo.gov/main/OneChapter.aspx?chapter=144
• RSMo § 144.190 (Refund Claims) — https://revisor.mo.gov/main/OneSection.aspx?section=144.190
• RSMo § 144.220 (Examinations) — https://revisor.mo.gov/main/OneSection.aspx?section=144.220
• RSMo § 144.261 (Protest of Assessment) — https://revisor.mo.gov/main/OneSection.aspx?section=144.261
• RSMo § 144.320 (Records Retention) — https://revisor.mo.gov/main/OneSection.aspx?section=144.320
• RSMo § 144.605 (Definitions / Economic Nexus) — https://revisor.mo.gov/main/OneSection.aspx?section=144.605
• RSMo § 144.752 (Marketplace Facilitators) — https://revisor.mo.gov/main/OneSection.aspx?section=144.752
• RSMo § 621.050 (AHC Appeals) — https://revisor.mo.gov/main/OneSection.aspx?section=621.050
• Missouri SB 153 (2021) (Wayfair codification) — https://www.senate.mo.gov/21info/BTS_Web/Bill.aspx?SessionType=R&BillID=54002731
• South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018) — https://www.supremecourt.gov/opinions/17pdf/17-494_j4el.pdf
• Brinker Mo., Inc. v. Director of Revenue, 319 S.W.3d 433 (Mo. banc 2010)
• Missouri DOR Sales/Use Tax — https://dor.mo.gov/taxation/business/tax-types/sales-use/
• Missouri Form 149 (Sales/Use Tax Exemption Certificate) — https://dor.mo.gov/forms/149.pdf
• Missouri Form 53-1 (Sales Tax Return) / Form 53-V (Vendor's Use) — https://dor.mo.gov/forms/
• 12 CSR 10-41 (Sales/Use Tax Procedure) — https://www.sos.mo.gov/cmsimages/adrules/csr/current/12csr/12c10-41.pdf
• Administrative Hearing Commission — https://ahc.mo.gov/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. Missouri sales/use tax law and economic-nexus rules continue to evolve since the January 1, 2023 effective date; an attorney licensed in Missouri must review and customize this document before use.