Form CDTFA-38 Application for out-Of-State Voluntary Disclosure - California

Form CDTFA-38 is a California Department of Tax and Fee Administration form also known as the "Application For Out-of-state Voluntary Disclosure". The latest edition of the form was released in February 1, 2018 and is available for digital filing.

Download an up-to-date Form CDTFA-38 in PDF-format down below or look it up on the California Department of Tax and Fee Administration Forms website.

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CDTFA-38 (FRONT) REV. 7 (2-18)
STATE OF CALIFORNIA
APPLICATION FOR OUT-OF-STATE
CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION
VOLUNTARY DISCLOSURE
Although your retail business is located outside of California, you may be required to collect and report California use tax when you make
sales of tangible personal property that is used, stored, or otherwise consumed in this state. You are required to collect and pay the use
tax if you are “engaged in business” in California as defined in California Revenue and Taxation Code section 6203 (see reverse).
The California Department of Tax and Fee Administration (CDTFA) has established a voluntary disclosure use tax liability program for
out-of-state retailers who wish to acknowledge their liability for California use tax. By voluntarily registering with the CDTFA under this
program, you may be able to limit your liability for tax, penalties, and interest due for prior periods. Ordinarily, if you did not file a return,
the CDTFA can send you a bill (“deficiency determination”) for the amounts owed as late as eight years after the quarterly period in which
the sales were made. Pursuant to Revenue and Taxation Code section 6487.05, if you qualify for the voluntary disclosure program, the
billing period may be limited to three years. In addition, you may be relieved of applicable penalties (see below).
Please complete this form if you wish to apply for the voluntary disclosure program. By completing and signing this form, you are
representing that:
• The retailer is located outside this state, and has not previously registered with the CDTFA or the Board of Equalization (BOE).
• The retailer is engaged in business in this state, as defined in Revenue and Taxation Code section 6203 (see reverse).
• The retailer voluntarily registers with the CDTFA.
• The retailer has not been previously contacted by the CDTFA, the BOE, or their agents regarding the provisions of Revenue and
Taxation Code section 6203.
• Failure by the retailer to register with the CDTFA or the BOE, file returns and pay tax to the CDTFA or the BOE was not due to
negligence, intentional disregard of the law, fraud, or intent to evade the provisions of the California Revenue and Taxation Code.
CERTIFICATION
I certify (or declare), under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct.
BUSINESS NAME
SSN OR FEIN
ACCOUNT NUMBER (see note)
YOUR NAME
TYPE OF BUSINESS
ADDRESS (street, city, state, zip code)
TELEPHONE NUMBER
PERIOD OPERATED IN CALIFORNIA
From
To
(month, day, year)
(month, day, year)
YOUR BUSINESS ACTIVITY IN CALIFORNIA
Salesperson
Solicitor
Manufacturer’s Agent
Independent Contractor or Representative
Installer
Trainer
Affiliate
Commonly-Controlled Group
In-State Location
Warehouse, Fulfillment, or Distribution Center
Inventory
Deliver Merchandise by Non-Common Carrier
Installation of Tangible Personal Property
Rent or Lease Property
Other
DESCRIBE HOW YOU ARE ENGAGED IN BUSINESS IN CALIFORNIA (if more space is needed, please attach a separate sheet)
Request for Relief of Penalty:
(if more space is needed, please attach a separate sheet)
The CDTFA may grant relief from penalty charges, but not interest charges with this statement if it is determined that a person’s failure
to file a timely return or payment was due to reasonable cause and circumstances beyond the person’s control. If you are relieved of
the penalty charges, you must still pay the interest due on late return payments and prepayments. Your request for relief from penalty
may not be processed until the tax has been paid in full.
Under penalty of perjury, I request relief from penalty charges for the period(s)
because
I can attest to the fact that the person above meets the qualifications of Revenue and Taxation Code section 6487.05. I further attest that
the person’s previous failure to register with the CDTFA or the BOE, file returns, and pay tax to the CDTFA or the BOE was not due to
negligence, intentional disregard of the law, fraud, or intent to evade the provisions of the California Revenue and Taxation Code.
SIGNATURE
TITLE
DATE
In addition to this application, please visit our website at www.cdtfa.ca.gov to complete the electronic registration and obtain your
California Certificate of Registration-Use Tax Account. (Note: Please enter the account number on this form in the “Account Number”
field.) This application should be mailed within thirty (30) days of registration to: California Department of Tax and Fee Administration,
Out-of-State Office, 3321 Power Inn Road, Suite 130, Sacramento, CA 95826-3893, Telephone 1-916-227-6600, Fax 1-916-227-6641.
You may not qualify for this program if your application is not submitted within the thirty (30) days. For more information, please see
publication 178, Voluntary Disclosure Program, which can be accessed through the CDTFA website listed above.
CDTFA-38 (FRONT) REV. 7 (2-18)
STATE OF CALIFORNIA
APPLICATION FOR OUT-OF-STATE
CALIFORNIA DEPARTMENT OF TAX AND FEE ADMINISTRATION
VOLUNTARY DISCLOSURE
Although your retail business is located outside of California, you may be required to collect and report California use tax when you make
sales of tangible personal property that is used, stored, or otherwise consumed in this state. You are required to collect and pay the use
tax if you are “engaged in business” in California as defined in California Revenue and Taxation Code section 6203 (see reverse).
The California Department of Tax and Fee Administration (CDTFA) has established a voluntary disclosure use tax liability program for
out-of-state retailers who wish to acknowledge their liability for California use tax. By voluntarily registering with the CDTFA under this
program, you may be able to limit your liability for tax, penalties, and interest due for prior periods. Ordinarily, if you did not file a return,
the CDTFA can send you a bill (“deficiency determination”) for the amounts owed as late as eight years after the quarterly period in which
the sales were made. Pursuant to Revenue and Taxation Code section 6487.05, if you qualify for the voluntary disclosure program, the
billing period may be limited to three years. In addition, you may be relieved of applicable penalties (see below).
Please complete this form if you wish to apply for the voluntary disclosure program. By completing and signing this form, you are
representing that:
• The retailer is located outside this state, and has not previously registered with the CDTFA or the Board of Equalization (BOE).
• The retailer is engaged in business in this state, as defined in Revenue and Taxation Code section 6203 (see reverse).
• The retailer voluntarily registers with the CDTFA.
• The retailer has not been previously contacted by the CDTFA, the BOE, or their agents regarding the provisions of Revenue and
Taxation Code section 6203.
• Failure by the retailer to register with the CDTFA or the BOE, file returns and pay tax to the CDTFA or the BOE was not due to
negligence, intentional disregard of the law, fraud, or intent to evade the provisions of the California Revenue and Taxation Code.
CERTIFICATION
I certify (or declare), under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct.
BUSINESS NAME
SSN OR FEIN
ACCOUNT NUMBER (see note)
YOUR NAME
TYPE OF BUSINESS
ADDRESS (street, city, state, zip code)
TELEPHONE NUMBER
PERIOD OPERATED IN CALIFORNIA
From
To
(month, day, year)
(month, day, year)
YOUR BUSINESS ACTIVITY IN CALIFORNIA
Salesperson
Solicitor
Manufacturer’s Agent
Independent Contractor or Representative
Installer
Trainer
Affiliate
Commonly-Controlled Group
In-State Location
Warehouse, Fulfillment, or Distribution Center
Inventory
Deliver Merchandise by Non-Common Carrier
Installation of Tangible Personal Property
Rent or Lease Property
Other
DESCRIBE HOW YOU ARE ENGAGED IN BUSINESS IN CALIFORNIA (if more space is needed, please attach a separate sheet)
Request for Relief of Penalty:
(if more space is needed, please attach a separate sheet)
The CDTFA may grant relief from penalty charges, but not interest charges with this statement if it is determined that a person’s failure
to file a timely return or payment was due to reasonable cause and circumstances beyond the person’s control. If you are relieved of
the penalty charges, you must still pay the interest due on late return payments and prepayments. Your request for relief from penalty
may not be processed until the tax has been paid in full.
Under penalty of perjury, I request relief from penalty charges for the period(s)
because
I can attest to the fact that the person above meets the qualifications of Revenue and Taxation Code section 6487.05. I further attest that
the person’s previous failure to register with the CDTFA or the BOE, file returns, and pay tax to the CDTFA or the BOE was not due to
negligence, intentional disregard of the law, fraud, or intent to evade the provisions of the California Revenue and Taxation Code.
SIGNATURE
TITLE
DATE
In addition to this application, please visit our website at www.cdtfa.ca.gov to complete the electronic registration and obtain your
California Certificate of Registration-Use Tax Account. (Note: Please enter the account number on this form in the “Account Number”
field.) This application should be mailed within thirty (30) days of registration to: California Department of Tax and Fee Administration,
Out-of-State Office, 3321 Power Inn Road, Suite 130, Sacramento, CA 95826-3893, Telephone 1-916-227-6600, Fax 1-916-227-6641.
You may not qualify for this program if your application is not submitted within the thirty (30) days. For more information, please see
publication 178, Voluntary Disclosure Program, which can be accessed through the CDTFA website listed above.
CDTFA-38 (BACK) REV. 7 (1-18)
California Revenue and Taxation Code:
(ii) The retailer, within the preceding 12 months, has total cumulative
sales of tangible personal property to purchasers in this state in
6203. Collection by retailer:
excess of one million dollars ($1,000,000).
(a) Except as provided by Sections 6292 and 6293, every retailer
(B) An agreement under which a retailer purchases advertisements
engaged in business in this state and making sales of tangible
from a person or persons in this state, to be delivered on television, radio,
personal property for storage, use, or other consumption in this
in print, on the Internet, or by any other medium, is not an agreement
state, not exempted under Chapter 3.5 (commencing with Section
described in subparagraph (A), unless the advertisement revenue paid
6271) or Chapter 4 (commencing with Section 6351), shall, at the
to the person or persons in this state consists of commissions or other
time of making the sales or, if the storage, use, or other consumption
consideration that is based upon sales of tangible personal property.
of the tangible personal property is not then taxable hereunder, at
the time the storage, use, or other consumption becomes taxable,
(C) Notwithstanding subparagraph (B), an agreement under which a
collect the tax from the purchaser and give to the purchaser a
retailer engages a person in this state to place an advertisement on
receipt therefor in the manner and form prescribed by the board.
an Internet Web site operated by that person, or operated by another
person in this state, is not an agreement described in subparagraph
(b) As respects leases constituting sales of tangible personal
(A), unless the person entering the agreement with the retailer also
property, the tax shall be collected from the lessee at the time
directly or indirectly solicits potential customers in this state through
amounts are paid by the lessee under the lease.
use of flyers, newsletters, telephone calls, electronic mail, blogs,
(c) “Retailer engaged in business in this state” as used in this
microblogs, social networking sites, or other means of direct or
section and Section 6202 means any retailer that has substantial
indirect solicitation specifically targeted at potential customers in this
nexus with this state for purposes of the commerce clause of the
state.
United States Constitution and any retailer upon whom federal law
(D) For purposes of this paragraph, “retailer” includes an entity
permits this state to impose a use tax collection duty. “Retailer
affiliated with a retailer within the meaning of Section 1504 of the
engaged in business in this state” specifically includes, but is not
Internal Revenue Code.
limited to, any of the following:
(E) This paragraph shall not apply if the retailer can demonstrate
(1) Any retailer maintaining, occupying, or using, permanently or
that the person in this state with whom the retailer has an agreement
temporarily, directly or indirectly, or through a subsidiary, or agent,
did not engage in referrals in the state on behalf of the retailer that
by whatever name called, an office, place of distribution, sales or
would satisfy the requirements of the commerce clause of the
sample room or place, warehouse or storage place, or other place
United States Constitution.
of business.
(d) Except as provided in this subdivision, a retailer is not a “retailer
(2) Any retailer having any representative, agent, salesperson,
engaged in business in this state” under paragraph (2) of subdivision
canvasser, independent contractor, or solicitor operating in this
(c) if that retailer’s sole physical presence in this state is to engage in
state under the authority of the retailer or its subsidiary for the
convention and trade show activities as described in Section 513(d)
purpose of selling, delivering, installing, assembling, or the taking
(3)(A) of the Internal Revenue Code, and if the retailer, including any
of orders for any tangible personal property.
of his or her representatives, agents, salespersons, canvassers,
(3) As respects a lease, any retailer deriving rentals from a lease of
independent contractors, or solicitors, does not engage in those
tangible personal property situated in this state.
convention and trade show activities for more than 15 days, in
whole or in part, in this state during any 12-month period and did
(4) Any retailer that is a member of a commonly controlled group,
not derive more than one hundred thousand dollars ($100,000)
as defined in Section 25105, and is a member of a combined
of net income from those activities in this state during the prior
reporting group, as defined in paragraph (3) of subdivision (b) of
calendar year. Notwithstanding the preceding sentence, a retailer
Section 25106.5 of Title 18 of the California Code of Regulations,
engaging in convention and trade show activities, as described
that includes another member of the retailer’s commonly controlled
in Section 513(d)(3)(A) of the Internal Revenue Code, is a “retailer
group that, pursuant to an agreement with or in cooperation with the
engaged in business in this state,” and is liable for collection of the
retailer, performs services in this state in connection with tangible
applicable use tax, with respect to any sale of tangible personal
personal property to be sold by the retailer, including, but not limited
property occurring at the convention and trade show activities
to, design and development of tangible personal property sold by
and with respect to any sale of tangible personal property made
the retailer, or the solicitation of sales of tangible personal property
pursuant to an order taken at or during those convention and trade
on behalf of the retailer.
show activities.
(5) (A) Any retailer entering into an agreement or agreements under
(e) Any limitations created by this section upon the definition
which a person or persons in this state, for a commission or other
of “retailer engaged in business in this state” shall only apply for
consideration, directly or indirectly refer potential purchasers of
purposes of tax liability under this code. Nothing in this section is
tangible personal property to the retailer, whether by an Internet-
intended to affect or limit, in any way, civil liability or jurisdiction
based link or an Internet Web site, or otherwise, provided that both
under Section 410.10 of the Code of Civil Procedure.
of the following conditions are met:
History.—Added by Stats. 2011, Ch. 313 (AB 155), in effect
(i) The total cumulative sales price from all of the retailer’s sales,
September 23, 2011, but operative September 15, 2012.
within the preceding 12 months, of tangible personal property to
purchasers in this state that are referred pursuant to all of those
agreements with a person or persons in this state, is in excess of
ten thousand dollars ($10,000).
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