The revenue loss looms large: $23 billion a year in uncollected state and local sales taxes from online transactions. Getting Internet-only retailers to collect the tax, however, looms even larger.
As almost everyone knows, it's been tough finding a way around Quill v. North Dakota, the 1992 Supreme Court decision that said a catalog or online retailer did not have to collect a state's sales tax if the retailer had no physical presence, or nexus, in that state. The high court suggested that such collection put an onerous burden on retailers since state sales taxes and definitions of taxable goods were impossibly varied and complex. In 2000, the Streamlined Sales Tax Project (SSTP) was created to resolve the complexity issue, and to date, 24 of the 45 sales-tax states have passed conforming legislation to meet simplification and streamlining criteria. The SSTP also hopes to use simplification as a means of persuading Congress to undo Quill by passing legislation lifting the nexus barrier and making it possible for states to levy sales taxes on Internet-only retailers.
But rather than wait for Congress to act, a handful of states are putting their own imprimatur on the issue. In 2008, New York state legislators passed landmark legislation that presumes Internet sellers like Amazon.com and Overstock.com have nexus if they have marketing deals with "affiliate" sellers who are physically present in the state. Amazon asked the courts to declare the law void, but the challenge so far has not been successful. In 2009, Rhode Island and North Carolina adopted similar laws. Amazon has been collecting sales taxes on shipments to New Yorkers, but the company took a different tack with Rhode Island and North Carolina: It dropped its affiliates in those states, depriving them of nexus.
Since then, a handful of other states have passed similar legislation -- Illinois did so in January, followed by Arkansas and Connecticut in April. I caught up with Scott Peterson, the Streamlined Sales Tax (SST) Governing Board's executive director, to get some perspective on how this spate of action is playing out.
When states debate passing so-called "Amazon" laws, they bring up the issue of fairness, or rather the unfairness of brick and mortar stores having their online competitors escape collecting sales taxes. Is that what's driving this new round of legislation?
The state position has never changed. States have always felt that given how critical sales tax is to state and local budgets, all businesses should collect the sales tax. What has changed is businesses' desire that everybody collect the tax. That's relatively new. In the beginning when I first started, most businesses structured their organizations in ways to minimize their sales tax collection obligation. Today, a lot of businesses are collecting the tax and seeing some of their competitors [get away with not collecting it]. As a result, states have a business partner they didn't have before. All the recent "click-through" legislation in the states was 100 percent driven by businesses.
Is click-through another term for Amazon law?
We like to use something that's less specific to one company and more generic. These laws apply to more than Amazon. This legislation works because of individual, online consumers clicking through to another company's website, and that click creates the obligation.
Have click-through laws been successful?
It depends on how you define success. If you measure success by raising awareness of the issue, then these absolutely are a growing success. If success is in collecting a lot of taxes, probably not. The problem with this approach from a tax collection perspective is that it is business-practice specific. It works to the extent that you do business in the way the statute is structured. If you don't have an affiliate relationship, there is no obligation to collect. In Rhode Island and North Carolina where Amazon and others ended affiliate programs, they also ended the obligation to collect the tax.
Oklahoma is trying a different tack, asking taxpayers to self-report.
Every state has self-reporting, but some states are more successful with it than others. What Oklahoma has done is tell online retailers that they have to do two things: They can't put "no sales tax" in their advertisements because that's false, and they have to proactively tell their consumers that they owe sales taxes on their purchases and this is how to go about paying them. South Dakota passed this kind of law a year ago, and Colorado is debating it. One problem is enforcement. If you're Oklahoma, what do you do about a company in, say New York, whose website says it is selling goods tax free? How do you reach into that state and have a legal effect on that company?
Amazon has approached several states about building a warehouse or fulfillment center, which is nexus. They've asked these states to excuse them from collecting the sales tax from its residents. South Carolina turned them down, and there are battles brewing on the issue in Nevada and Tennessee. Are you surprised at the state resistance?
Not at all. States have been fighting forever to get sales tax collected, and Amazon already collects the tax in a lot of places where they have warehouses, like Kansas and Kentucky. They should not be surprised at the reaction they are getting.
How do these state laws and actions work with SST efforts?
This should show members of Congress that states are not going to roll over and let their sales tax disappear. Congress should step in. This Congress, [in particular], is a Congress that is favorable to states' rights, and you don't get any more states' rights than the ability to generate taxes.
But in some ways, the latest efforts by states are complicating things. It is focusing the issue on uncollected taxes instead of tax simplification. What we care most about is how to make state sales and use taxes simpler and more uniform for those collecting the tax. What's going on now is all about money. Money is important but our initial effort was aimed at taking a tax that was 80 years old and bringing it into the 21st century.