Much at Stake in U.S. Supreme Court Online Sales Tax Case

Posted: Updated:

The Supreme Court of the United States will hear oral arguments Tuesday in South Dakota v. Wayfair. Its decision could end a half-century debate and significantly impact businesses, consumers and state economies across the country.

Wayfair Inc., Overstock.com and another online retailer challenged a South Dakota law that calls for them to collect South Dakota’s sales tax on their sales to South Dakota residents, even though the companies have no physical operations or physical presence in the state. The online retailers’ position is supported by precedent. Over 50 years ago in National Bellas Hess Inc. v. Department of Revenue of Illinois (1967), SCOTUS found, based on Commerce Clause protections, that Illinois could not require an out-of-state business to collect its sales tax unless the business had a "physical presence" in Illinois.

This "physical presence" test was affirmed in Quill v. North Dakota (1992) when the Court ruled that North Dakota could not require a mail order company to collect its sales tax, again citing the requirement as an unreasonable burden on interstate commerce. But the Court’s opinion seemed to acknowledge that different circumstances could yield different results.

And much has changed since 1992. Most notably, the internet was only in its infancy then and online retailers were unheard of. The application of Quill to a transaction and industry that barely existed when the opinion was issued has generated growing debate over the last 10 to 15 years. Pressure to overturn Quill has steadily grown as internet sales swallow up a larger market share each year, traditional brick-and-mortar retailers see their profits decline, states see their revenues decline and the “burden” associated with collecting the taxes has been steadily lessened by technological advances.

Congress has the authority to legislatively overturn Quill but countervailing political forces have impeded it from remedying the situation. Consequently, states have legislated an array of their own remedies, in the form of imaginative and constitutionally suspect laws. As part of a concerted effort across the country, advocates for overturning Quill began a campaign designed to present a new basis for testing the Quill holding. It encouraged states to impose laws they knew would be challenged, in order to get a fresh case before the Supreme Court and give them the opportunity to argue Quill’s legal obsolescence. The laws would purport to establish legal nexus based on the level of sales that online businesses conduct in their state. This concept is referred to as “economic nexus.:

In comes South Dakota – the first state to pass legislation imposing the collection requirement based on a defined economic nexus. If an online seller has more than $100,000 in sales or more than 200 separate sales to South Dakota residents, then that retailer must collect the sales tax in those transactions. The South Dakota law served as the model as a few other states passed nearly identical legislation, including Indiana (in 2017). South Dakota fast-tracked the litigation and here we are with a potential landmark case before SCOTUS.

Will Quill be overturned? It seems very possible. First, the Court took the case, which could be interpreted as a recognition that the issue needs to be revisited.  Second, three justices have questioned the application of the Quill case. And many stakeholders have presented legal arguments to support and encourage the Court to reach an updated result. Forty amicus curiae (friend-of-the-court) briefs have been filed since the Court decided to hear the case in January. All these can be viewed here (http://www.scotusblog.com/case-files/cases/south-dakota-v-wayfair-inc). Some taxpayer advocates argued against giving states the authority to require collection. But a majority favor overturning Quill.

The outcome of this case, 50 years in the making, will have a significant impact on many people. States and local governments care about this case because there is around $20 billion of state tax revenues at stake. (Estimates range from $13 billion to $26 billion and the number will only get larger as time goes by.) Indiana’s share would probably be in the $200 million range, so the state’s budget makers care.

Brick-and mortar retail businesses in Indiana care because they must compete with online retailers and having to charge their customers the 7% Indiana sales tax puts them at a price disadvantage to the online sellers who don’t collect it. Indiana businesses that sell online to customers in other states care because they must comply with the expanding spectrum of varying state laws. Taxpayers should care, because they are legally already obligated to pay use tax on their online purchase, whether they presently do or not, and because dwindling/unrealized revenues can spur tax increases elsewhere.

The Court’s decision will be made sometime before the end of June when its current term expires.

  • Perspectives

    • Do You Make These Top 5 Marketing Mistakes?

      Picture this: You’re the CEO of a multi-million dollar company. In just a few short years, you have led your firm in quickly become a rising star within your industry. Now, you’re ready to make your entrance into the big leagues known at this year’s premier tradeshow. The only problem is that your rapid growth has outpaced your "DIY" marketing. And to be taken seriously at the next level, your company needs a strong marketing message that clearly...

    More

Subscribe

Name:
Company Name:
Email:
Confirm Email:
HTML
INside Edge
Morning Briefing
BigWigs & New Gigs
Life Sciences Indiana
Indiana Connections
INPower
Subscribe
Unsubscribe

Events



  • Most Popular Stories

    • Thor Set to Become Largest RV Maker in The World

      Elkhart-based Thor Industries Inc. (NYSE: THO) has announced an agreement to acquire a German recreational vehicle manufacturer for approximately $2.4 billion. Once complete, Thor says the deal for Erwin Hymer Group SE will create the world's largest RV maker. EHG currently employs more than 7,300 globally and its RVs are sold through a network of over 1,200 retailers. The companies say they expect no change in employee headcount or number of facilities as a result of...

    • (Image courtesy of AM General)

      AM General Wins $560M Humvee Contract

      A major contract has been awarded to South Bend-based AM General LLC. The more than $560 million deal involves production of 2,800 Humvee ambulances. The first vehicles, AM General says, are expected to be delivered in the second quarter of next year. U.S. Army Contracting Command in Warren, Michigan is the contracting activity. AM General is partnering with Rock Island Arsenal Executive Vice President of U.S. Defense Chris Vanslager says...

    • Manufacturer Bringing 500+ Jobs to Hobart

      An Illinois-based manufacturer is moving two manufacturing operations from Illinois to Indiana, with plans to create up to 582 jobs in Hobart by the end of 2021. Wynright Corp., which makes intelligent material handling systems, says it will invest $26 million to build and equip a facility at the NorthWind Crossings business park. Parent company Daifuku North America says the move puts the operations under one roof in a location that's able to handle future growth.

    • (Image courtesy of WTC Indianapolis) Fahad Al Gergawi, pictured right next to Indiana Secretary of Commerce Jim Schellinger and Governor Eric Holcomb, met with business and economic leaders in Indianapolis.

      Dubai Trade Official Talks Indiana Opportunities

      An economic development official from the United Arab Emirates is using a trade mission in Indianapolis to showcase what he says is a global hub in Dubai that offers opportunities with large economies in his country and beyond. Dubai FDI Chief Executive Officer Fahad Al Gergawi said Indianapolis is one of more than a dozen U.S. cities he and his colleagues have toured in the last four years that possess "significant strength in terms of international trade."

    • Purdue Launches National Veterinary Medicine Academy

      The Purdue University College of Veterinary Medicine is using a more than $3 million grant to establish an academy designed to address a national shortage of veterinarians in rural areas. Vet Up! The National Health Careers Opportunity Program Academy for Veterinary Medicine will also focus on food animal practice and a lack of underrepresented people entering the veterinary profession.