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

    • Indiana's Regrettable Struggle to Pass Hate Crime Legislation

      It shouldn’t be this hard. The Senate’s Public Policy Committee voted 9-1 in favor of SB-12 this week, a bill that would have codified (as written) hate crime bias to include protections for race, religion, color, sex, gender identity, disability, national origin, ancestry, sexual orientation, and age. SB-12 then made its way to the full Senate. Preceded by a lengthy deliberation by the Senate’s Republican caucus, the Senate voted 33-16 in favor of a watered-down...

    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

    • Scotty McCreery will perform at Elkhart’s Lerner Theater on Idea Week’s Elkhart Day.

      Country Singer Joins Idea Week Line Up

      The University of Notre Dame has announced a new act joining this year's Idea Week innovation festival. The award-winning country singer got his start by winning “American Idol” in 2011. 

    • Indiana's Regrettable Struggle to Pass Hate Crime Legislation

      It shouldn’t be this hard. The Senate’s Public Policy Committee voted 9-1 in favor of SB-12 this week, a bill that would have codified (as written) hate crime bias to include protections for race, religion, color, sex, gender identity, disability, national origin, ancestry, sexual orientation, and age. SB-12 then made its way to the full Senate. Preceded by a lengthy deliberation by the Senate’s Republican caucus, the Senate voted 33-16 in favor of a watered-down...

    • New Leader Aims to Expose International School's Assets

      The new head of school at the International School of Indiana says she wants to build on 25 years of growth. Elizabeth Head, who became the school’s first female leader last month, says the school’s reputation for contributing to the workforce and attracting talent from around the world excited her about the job. She says the ISI is the only school of its kind not just in Indiana, but throughout the Midwest. In an interview on Inside INdiana Business with Gerry Dick...

    • Indiana is one of five states without a specific hate crimes law.

      Senate Passes Amended Hate Crimes Bill

      The Indiana Senate has passed a hate crimes bill, which includes a controversial amendment approved Wednesday in committee. The bill, which no longer includes a list of targeted groups, was approved by a vote of 39-10. The bill now includes a line stating criminal sentences can be lengthened for reasons "including bias."

    • Indiana Rural School Clinic Network Expands to Pekin

      East Washington School Corp. has announced that East Washington Elementary School is now a participant in the Indiana Rural School Clinic Network. Supported by Ascension/St. Vincent Salem, the school now has a telehealth clinic available to its students and staff.