Applying Washington State retail sales and business and occupation (B&O) tax to construction management and captive builders remains complex as laws continue to be refined by legislative changes and court cases.

Below is an overview of Washington State B&O tax guidance and some common terms, lessons to be learned from of a Board of Tax Appeals case, and related risks.

Construction Management B&O Tax

Stand-alone professional services may not typically be subject to retail sales tax in the state of Washington, but contractors providing custom construction services are—and for the entire contract price. This split in tax treatment creates a complicated situation for companies that provide professional construction management services, even if they may not be engaging directly in construction.

B&O Tax Terminology

Understanding a few key terms and how they relate to each other will make it easier to know the difference in taxation for specific construction management contracts.

• Services rendered in respect to construction
• Responsibility for performance
• Land development and management

Services Rendered in Respect to Construction

Under certain circumstances, a service ordinarily classified as a professional service may be considered a retail sale if the professional service provided is what’s referred to as a service rendered in respect to construction.

In general, a company constructing, repairing, or improving new or existing buildings for a consumer must collect retail sales tax from the consumer and pay retailing B&O tax. In contrast, professional services, such as engineering or architectural services, aren’t subject to sales tax, but the service provider must pay tax at a higher B&O tax rate under the service and other (S&O) activities B&O tax classification.

Making a determination of services rendered in respect to construction relies on the activity in question and the relationship between parties.

The term applies to services that are directly related to construction activity and done by a person responsible for performing it, although the finer points of what being responsible for the performance of said activity isn’t always clear. This is where some taxpayers may run into trouble.

Responsibility for Performance

This refers to the construction manager being obligated to perform the activities, either personally or through a third party. Washington’s legislature sought to clarify this in 1999 by enacting Revised Code of Washington Section 82.04.051 that clarified that the person reviewing work for a consumer but not directly supervising the work’s performance isn’t responsible for the work’s performance.

Land Development and Management

This term actually comes from a ruling discussed in the section below. It encompasses site identification, zoning, permitting, and other preconstruction regulatory services provided to the consumer of the constructing, building, repairing, improving, or decorating services.

This includes acting as an owner's representative during any design or construction period—such as recommending a contractor, monitoring the budget and schedule, approving invoices, and interacting on behalf of the consumer with the person who has control over the work or is responsible for its performance.

Rulings and Appeals

Discussed below are some limitations and how relevant authorities have interpreted these rules both in favor of and against taxpayers.

Washington Tax Determination Ruling 99-346 (WTD 99-346)

In WTD 99-346, the Washington State Department of Revenue auditor asserted that the construction manager was providing services rendered in respect to construction and reclassified its income from the S&O classification to the retailing classification.

On administrative appeal, the Department of Revenue (DOR) Appeals Division disagreed and found that the taxpayer wasn’t providing services rendered in respect to construction for a short list of key reasons where the taxpayer:

• Didn’t actively and directly supervise the construction activity onsite, as in not in a foreman-like capacity
• Was paid based on an hourly pay rate not tied to the construction costs but rather was tied to the performance of administrative functions that arose from the construction activities performed by others
• Wasn’t a party to a contract where a separate licensed general contractor directly engaged with the landowner to provide construction services
• Didn’t have the contractual authority to select or engage the contractors but offered analysis and recommendations to the landowner on which contractors to hire
• Acted consistently, regardless of what the contract stated, with the intent to act as an advisor, not as an agent or contractor

Many of these concepts from WTD 99-346 were codified into the law in 2020 with the passage of House Bill 2229. Specifically, the legislature added language confirming a taxpayer isn’t providing services rendered in respect to construction if the services are limited to what’s referred to as land development or management.

Washington State Board of Tax Appeal (BTA) West Coast Self Storage, LLC v. Washington DOR

In this case decided in 2022, the taxpayer entered into affiliation agreements with third parties to develop, build, and manage self-storage properties—similar to the role of a franchisor in franchise agreements.

The taxpayer didn’t engage in the construction activity itself, but the terms of the agreements and the services provided led the court to find the taxpayer responsible for the construction activity and taxable as a contractor. A few key facts led to this finding:

• Development agreement required the taxpayer to identify suitable general contractors, negotiate construction contract terms, and obtain binding bid proposals
• Construction management agreement required the taxpayer to cause construction of the buildings in a good and workmanlike manner while not permitting the construction activity to be abandoned

Reporting Retail Sales and B&O Tax

Construction management services can vary widely and whether a taxpayer must report retailing B&O tax and retail sales tax as a contractor depends heavily on the facts, the terms of the contracts, and the conduct of the parties.

Given the DOR’s continued focus on auditing for this type of issue, consider consulting your state tax advisor to help you understand Washington State’s tax treatment of your construction management contracts.

B&O Tax for Captive Builders

With rising construction costs, developers are increasingly taking on the general contractor role through captive construction contractor entities.

To understand where the risks are, we must first understand the taxation of three key concepts:

• Speculative builders
• Custom contractors
• Intercompany transactions

Speculative Builder

Speculative builders can generally be defined as contractors that construct buildings or other improvements on their own real property with the speculative intent to sell the finished building and land together for a profit. Speculative builders generally pay sales tax on materials and subcontractors but do not pay sales tax on their own employees’ wages.

Custom Contractors

Custom contractors can generally be defined as contractors that construct buildings or other improvements on real property owned by another person for an agreed-upon price. Custom contractors generally charge the customer sales tax on the entire contract price but do not pay sales tax when they purchase materials and services from subcontractors for resale.

Intercompany Transactions

With some very limited exceptions, Washington generally treats separate legal entities as separate taxpayers, regardless of their relationship or affiliations. Transactions between related entities are generally taxable, but for an applicable exemption or exclusion.

Despite 100% common ownership, the contractor and landowner being separate legal entities precludes the arrangement from being treated as a speculative construction activity.

The DOR audits this issue regularly due to this structure being a common business model.

Specific methods for reporting these transactions, planning for reduced tax costs, and dealing with audits can vary by company, depending on the facts, which call for a state tax advisor to help address intercompany transactions with captive builders.

We’re Here to Help

For more information on how construction management services and captive builders, contact your Moss Adams professional or visit our State & Local Tax Services.