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etvfutures.com April 26, 2018


Online Purchase Sales Tax Fight Heads to SCOTUS

17 April 2018, 01:24 | Lucia Cruz

Clicking 'checkout' online could cost more after Supreme Court case

Sales Tax across Pinal County is up half a cent

Overstock.com has a small but unmistakable advantage for anyone looking to buy a 3-cup Cuisinart Mini Prep Plus Food Processor for shipment to Germantown, Maryland: Purchasers don't have to pay the 6 percent sales tax they'd owe at a local store.

FILE PHOTO: A view of the U.S. Supreme Court building is seen in Washington, DC, U.S., October 13, 2015.

South Dakota is asking the nine justices to overturn a 1992 Supreme Court precedent that states can not require retailers to collect state sales taxes on purchases unless the businesses have a "physical presence" in the state.

Online retailers said reversing the 1992 precedent is a negative move in terms of e-commerce.

By contrast, the online store at Trump.com, the official website of the Trump Organization, collects sales taxes only for purchases made by customers in Florida, Louisiana and Virginia.

The case will also affect e-commerce behemoth Amazon.com Inc., though less directly.

Although Alaska does not have a state sales tax, there are 107 jurisdictions in the state that levy sales taxes, including the city of Juneau.

Broader taxing power would let state and local governments collect an extra $8 billion to $23 billion a year, according to various estimates. That leaves out only Alaska, Delaware, Montana, New Hampshire and Oregon. "And the more types of products I sell, the more hard it is to map to the software that's out there". Consumers must pay sales tax on the item at both the local Macy's department store or on Amazon, which sells the appliance out of its own stock for $39.95, plus $2.40 in tax.

However, in 2016, South Dakota passed a law requiring retailers with at least 200 transactions or $100,000 in sales per year in the state to collect state taxes. The court first adopted its physical presence rule on sales tax collection in a 1967 case dealing with a catalog retailer.

A related question, this one halachic: according to the technical dina d'mslchusa (state law in most states), a buyer is obligated to pay sales tax on out of state purchases whether or not the seller charged them.

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More than 40 states are asking the Supreme Court to reconsider that rule in a case being argued Tuesday.

The Quill ruling, involving a mail-order company, centered on the Constitution's so-called dormant commerce clause, a judge-created legal doctrine that says states can't unduly burden interstate commerce unless authorized by Congress.

"In several states, recent sales tax agreements with major internet retailers have not fully addressed local sales taxes, resulting in continued revenue losses for local governments", the Fitch report said.

But the internet companies that sued to block the law - Wayfair, Overstock and Newegg - say in their Supreme Court filings that state sales tax systems "remain inordinately complex and burdensome during the internet era, just as they were before it began".

Online companies "are far more present in the South Dakota economy than most of the state's physically present retail businesses", says Eric Citron, a Washington lawyer representing the state. The state has the backing of the Trump administration.

The said ruling was imposed in response to the case of North Dakota vs. Quill, an online office supply firm. The online giant is said to account for more than 40 percent of USA online retail sales. The court reaffirmed that ruling in 1992.

A decision is expected by the end of June. But three justices - Neil Gorsuch, Clarence Thomas and Anthony Kennedy - have suggested a willingness to rethink those decisions.

"The entire nature of interstate commerce has changed", says Stephanie Martz, general counsel of the National Retail Federation, which has members such as Walmart Inc., Target Corp., and Amazon.

The case is South Dakota v. Wayfair, 17-494.



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