Small businesses closely watching Supreme Court sales tax case
Thursday, April 19, 2018
The Supreme Court has yet to rule on South Dakota v. Wayfair — a case that effectively determines how retailers collect sales tax on internet purchases — but most small business owners supporting the current policy probably felt good about the proceedings in Tuesday's oral arguments.
The justices appeared conflicted on exactly what their role should be in determining whether retailers should be responsible for charging sales tax in states where they don't have a physical presence — the rule set forth and confirmed in the 1992 Quill Corp. v. North Dakota case.
Even though several SCOTUS justices had previously indicated it might be time to revisit a policy that was in place well before the proliferation of online commerce, most seemed hesitant to suggest it was the Court's responsibility.
Justice Sonia Sotomayor noted that the case raised a "host of questions," but insisted Congress was a better place to settle the issue. And Justice Elena Kagan pointed out that Congress' inaction in the 26 years since Quill illustrates that lawmakers are satisfied by its precedent.
Perhaps shedding even more light on the Court's leanings, Chief Justice John G. Roberts asserted that the free market was already adapting to address holes in the current system.
"The bigger e-commerce companies find themselves with a physical presence in all 50 states, so they're already covered," he said.
Still, as online commerce grows to an ever-increasing share of retail, it's unlikely supporters of a change to the tax system would sit idly by if the Court sides with the status quo. Proponents of change insist valuable tax revenue is being lost, and further that the current system discriminates against brick-and-mortar retailers.
The court filing itself states: "First, our states are losing massive sales tax revenues that we need for education, healthcare and infrastructure. Second, our small businesses on Main Street are being harmed because of the unlevel playing field created by Quill, where out-of-state remote sellers are given a price advantage."
The Retail Industry Leaders Association has long advocated for change to the current tax system.
"Online-only retailers continue to methodically order their businesses to take advantage of the legal loophole in a way that shortchanges citizens by failing to collect the taxes that are owed and then trading off the illusory price advantage in a manner that undercuts local businesses — forcing many to the brink of extinction — thereby further eroding the local jobs and tax base," RILA General Counsel and Retail Litigation Center President Deborah White said in a statement this week.
Small online retailers like Kevin Casas see it differently. Casas operates a small, online golf equipment business out of Texas. Per the law, he charges sales tax on all purchases transacted in his home state, but not when he sells across the border.
"What's easier for me is the current situation we're in now," Casas said. "If I had to collect taxes and account for them in various counties across the country, I couldn't stay in business in the way that I operate."
Like most small business owners, Casas maintains trying to determine what to charge and file based on where each individual buyer lives is asking too much.
It's estimated there are about 12,000 different state and local jurisdictions in this county, with varying tax structures. And those tax structures can be confusing within themselves. For example, in Washington state, a Reese's Peanut Butter Cup is taxable under the "candy tax," but a Kit Kat isn't — because the Kit Kat contains flour.
"Would something like that be a burden? It certainly would," Casas said.
The RILA disagrees.
"The arguments made by proponents of the status quo that collecting sales tax is too complicated and laborious are patently ridiculous," Brian Dodge, RILA Senior Executive Vice President for Public Affairs, said this week. "Many of these same companies use microtargeting data to narrowly market to unique sets of consumers and calculate shipping costs based on an array of factors, such as distance, weight and fragility. The same advances in technology that have simplified these tasks have also radically simplified collecting and remitting sales tax. Not only does this technology exist today, but is used by countless retailers to collect and remit sales tax nationwide.
"The time has come to require all companies to play by the same rules."
Regardless of the merits on either side of the debate, it appears unlikely to many, including Casas, that the Supreme Court will move to impact the existing tax policy, but will instead look to shift the fight into a different ring — namely Congress.
Some lawmakers have suggested they avoided raising action on the matter knowing the case was coming before the Court, but once the ruling comes down, there will likely be pressure on Washington to address the issue.
"[Overturning Quill] would really be a hammer to small business growth," Casas said. "Neither political party wants to mess with something like that. I can’t imagine any decision that comes out of this is going to affect the kind of change that would cripple small businesses."
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