Amazon Sues New York State to Void Sales Tax Rules

Before the ink on the bill has even dried, Amazon.com has filed a suit challenging New York State’s new law that forces online retailers to collect sales taxes on shipments to state residents.

On Friday, Amazon filed a complaint in New York Supreme Court in New York City, objecting to the law. The provision is meant to contribute about $50 million to the $122 billion budget that was passed by the state legislature April 9 and signed by Gov. David A. Paterson last week.

The issue isn’t whether people should pay taxes when they buy goods from out-of-state sellers like Amazon, which is based in Seattle. For decades, New York and other states have required their residents to pay use tax — equivalent to sales tax — on out-of-state purchases for which sales tax wasn’t collected.

The question is whether the vendors must collect those taxes on behalf of the state. Generally, only those companies that have a physical presence, like an office or store, in the state of the purchase are required to collect the taxes.

The new law is based on a novel definition of what constitutes a presence in the state: It includes any Web site based in the state that earns a referral fee for sending customers to an online retailer. Amazon has hundreds of thousands of affiliates—from big publishers to tiny blogs—that feature links to its products. It says thousands of those have given an address in New York State, although it does not verify the addresses.

The state law says that if even one of those affiliates is in New York, Amazon must collect sales tax on everything sold in the state, even if it is not sold through the affiliate. This is an extension of an existing rule that companies that employ independent agents or representatives to solicit business must collect sales taxes for the state.

Amazon’s suit challenges the constitutionality of this interpretation and seeks a declaratory judgment that it is invalid. (Wired magazine posted a copy of the complaint here.)

Amazon’s complaint argues that the statue is “overly broad and vague.” It is impossible, Amazon wrote, for it to determine which of its affiliates are actually in New York State.

Amazon says that its affiliates are not agents but simply sites on which it places advertising. The commissions it pays the sites are simply one method of paying for those ads, it argued.

The online retailer further asserted that the new rules violated the equal protection clause of the constitution because it specifically targeted Amazon. “It was carefully crafted to increase state tax revenues by forcing Amazon to collect sales and use taxes,” the complaint says, noting that “state officials have described the statute as the ‘Amazon Tax.’ “

Tom Bergin, a spokesman for the New York State Department of Taxation, said that department would not comment on the suit until it filed a formal reply with the court. The state’s defense will be coordinated by the New York attorney general’s office.

Comments are no longer being accepted.

Look forward to this becoming a bigger issue as more states try to find revenue in taxing anything they can.

Every mail-order operation kills it for brick and mortar stores in every state where sales taxes should be collected. Why buy from Barnes & Noble when you can get the same book without the tax? Even before the minimal shipping charge and attractive discounts they offer because they’re not paying rent and attendant expenses of B&N you can’t beat Amazon.

Level the playing field for everyone and see if Bezos is still smiling.

Retailers, not just Amazon, should not have to collect state sales (“use”) taxes. That is the perfect job for the online money changers – credit card companies, PayPal, etc.

A retailer would just have to indicate that an item is taxable, and that taxes had not been included in the sale price, and then the payment service would add whatever taxes are owed, based on location of the buyer. The payment service would likely keep a small percentage for their efforts, and sent the rest off to the appropriate state.

It might be possible to avoid taxes by paying by mail with a check, but who these days (buyer or seller) wants to deal with that inconvenience?

I’m torn. In principle I think folks should pay taxes. But I’ve saved a lot of money over the years by shopping on the internet and let’s face it, I can barely afford to live in this city. I haven’t had health insurance in years. I think I would feel better about paying up if Albany wasn’t the most corrupt and least democratic state government in the Union.

Amazon is right. Referral sites are advertisers. And the statute discriminates against Amazon, while millions of other out-of-state merchants get off without collecting the tax.

Sales taxes in general are inherently regressive. More to the point, they are the most expensive to track and collect and among the easiest to evade. So they’re not just unfair, they’re among the least efficient of taxation methods. The state legislature should show some leadership by reducing or eliminating sales taxes. The increase in commerce and reduction in cost would make a consequent rise in income taxes less severe over all.

Congress should establish a moderate federal interstate sales tax and preempt states from taxing folks on out-of-state transactions.

If there was a common 3% charged on all these sales, with the money distributed to the states on a per capita basis, or just put in the federal treasury, there would be far more money collected than any of the current hit-or-miss methods collect.

Perhaps an asterisk for items over, say, $10K.

But there is really no basis for NY charging its full sales tax on a transaction that only incidentally uses NY resources.

The legislature’s legal theory underlying the statute is equivalent to saying that New York has jurisdiction over every publisher and manufacturer whose goods are sold in New York State. The statute doesn’t go that far, but if the statute is upheld, similar statutes for other industries will quickly follow, in NY and every other state.

Which is why the U.S. Supreme Court will rule for Amazon under the Commerce Clause.

Washington DC

Rather than address the massive amount of money that Albany wastes every single day, our elected officials have decided to create new taxes to help bridge the budget gap. And this tax, the ‘amazon tax,’ is the most egregious. Amazon already pays taxes, and so do its customers.

The battle will center around the legal and technical distinctions between ‘agents’ and ‘advertisers,’ but that’s missing the point: this tax is unjust and unfair.

sid from Brooklyn May 1, 2008 · 8:19 pm

Amazon is not a good plaintiff in this lawsuit. It does all the internet sales for Waldenbooks(which doesn’t have a website of its own) which has many stores in NY State….unlike Barnes and Nobles that does do it for themselves….there is a good chance that on these very special facts Amazon will lose. Amazon also couriers the books into NY state so it compete with the B and N time frames for delivery(mostly next day)….

Whether you think Amazon should or should not collect sales tax on its order, the justification for the New York State law is such a far-fetched overreach that it should be struck down. Because you advertise on a site, that site then becomes an “agent” for the advertiser? So I guess the New York Times is an “agent” for Apple, Toyota, Louis Vuitton, and every other company that advertises on the Times site. I don’t think so.

Really, this is simple. It is legal and constitutional for Amazon to decline to collect sales tax from places where it does not have a physical presence. This has been the law for decades. Whether or not is it good public policy, it is legal. If you want to force Amazon to collect sales tax, then go to the political institution that has proper jurisdiction over this matter – the U.S. Congress – and convince it to change the law. If you can’t get Congress to change the law, then Congress bears responsibility for the choice it has made to retain the loophole.

The presence of sales or service agents in the state should be suffficient for the state to establih nexus. Payments to those agents will confirm their NY location. This will be an interesting case.

And NYS wonders why its population growth is slowing! This state taxes EVERYTHING! 8% sales tax on services! No other state taxes getting your car towed or having your tires changed. They tax clothing, they slap 33 cents on the price of a gallon of gas.

I can barely afford to manage on what I am earning, and now NYS wants to tax one of my few pleasures – used books and cds from Amazon. Give me a break!

No wonder the upstate economy is on the skids. What business wants to locate here where businesses and residents are taxed within an inch of their lives.

I hope Amazon wins. I want to see my 8 cents on the dollar go toward more book purchases, and not disappear into the state coffers where it will get wasted on some boondogle!

More genius on display from the dysfunctional New York State legislature: Attempt to compel out-of-state retailers to charge taxes when they have no physical presence in New York State so the state can reap a windfall of $50 million, roughly the amount charged by a corrupt contractor to renovate a high school or two in Manhattan. Doesn’t it cost about $50 million just to pave a few miles of the Thruway? Won’t the lawyers charge around $10 million to resolve this court case?
Tune in next week for the Albany cabal to declare a moratorium on gas taxes so the oil companies can raise the per-gallon prices even further.

If every politician and his staffers, federally, state-wide, and locally took a pay cut, can you imagine what the savings would be?

On one hand: If I were to snail-mail an order with a catalog company (based in Kansas) that placed an ad in New Yorker magazine, would I now need to pay sales tax? No. On the other hand, if Amazon’s affiliates get a fee for my purchase, aren’t they affiliates more than they are simply advertising spaces? Yes. On the other hand… oh, this is going to be good!

NYS gets away with its abusive taxes… because it is not just a sales tax its a use tax. Yes folks, if you use the item in NYS you get to pay tax.

There was a Tax Department pamplet that even touts that “Duty Free” items purchased OUTSIDE the United States are subject to NYS tax, and just like the web says that NYS resident consumers are to send in the appropriate tax to them.

For a country who fought for its independance partly baised on the heavy tax levy on the colonies… We just returned to that time with new taxes.. Sales/Use, Income, Property, Fuel, Telecommunication, Death/Inherantince, Road Tolls, and the list goes on…

All this money so it can get pocketed or squandered by our “elected officials” , Which brings me to my second half of our fight for independance, representation…. I dont know about you… I havent seen any representation in a long time at all levels of govt.

So we pay tons of taxes and ge no representation… Humm is it me…. or does it feel like the 1770’s…. Tea party anyone?

(Off the soap box)

I live in NYC and in light of all this I’m just having everything over $50.00 shipped to my friend in Montana. More than one way to skin a greedy state and city.

York was a viking city and so is New York. We call it Vinland. You should all be paying viking tax to Scandinavia.

It is a bucket of blood, a sword and some sheep. But only if you have a link pointing to Amazon!!

“The presence of sales or service agents in the state should be suffficient for the state to establih nexus. Payments to those agents will confirm their NY location. This will be an interesting case.
— Posted by NC”

I simply do not buy your argument. If Amazon owns Waldenbooks and Waldenbooks has physical presence in NY, then NY taxes should be paid on sales through NY Waldenbook…ONLY. As far as the web site advertisements are concerned, I believe that sites being paid to advertise Amazon is not different then if I were Amazon rented billboard space in NY. It still comes back to physical presence. If the courts rule that Amazon’s ownership of Waldenbooks is enough to make all of Amazon’s NY sales subject to NY tax, then I can see Amazon closing all NY Waldenbooks or simply selling all of Waldenbooks off before giving into NY.

My $0.02.

>For decades, New York and other states have required their residents to pay use tax — equivalent to sales tax — on out-of-state purchases for which sales tax wasn’t collected.

We paid NY tax (years ago) when registering a car bought out of state, paid at motor vehicle office.

The NYS income tax form has only recently added a mandatory line for paying that use tax – don’t our legislators believe we’ll be truthful ?

PS – that was the only money I ‘owed’ on my 2007 taxes – and I paid it according to the income level chart . So there !

If the state wins this case, they’ll try to use the judgement to extend the “sales agent” position to other mail and internet sales channels. This is a slippery slope. EBay is next, then the other retailers.

There are literally hundreds of sales tax jurisdictions in New York, and figuring out who owes what to who is an expensive and difficult task. If NY wants the world to collect taxes for the State, they need to get rid of some of these stupid local governments, or prepare to have merchants shun the state.

well,heres one more reason not to live in new york-the great state of taxes-my family and i are considering moving to tennessee where there is no state income tax,no toll highways,lots of work,cheaper gas,and beautiful scenery-and the politicians wonder why so many people are leaving new york!

Congress has renewed (because they cannot quite make it permanent nor stop renewing as it may be seen as restraint of trade), several times, “internet” sales-tax ban – but with a brick-and-mortar exception NY is trying to squeeze through.

First they (not just NY, several States) went after cigarettes, issuing subpoenas against out-of-state sellers to get records of sales to residents, and driving a lot out of business – not to mention potentially starting a shooting war with American Indians. But who cared?

Now, books. But who reads? Except, well, Amazon sells a lot of other stuff as well.

And yes, any non-NY outfit that advertises mail-order in the NYTimes will have to be prepared to track, collect, and fork over such tax.

Though Amazon.com will probably win this case, I, for one, look forward to a scenario where Amazon loses this case and the subsequent death of New York base ecommerce.

Corporate greed is bigger than state’s rights these days. I could see Amazon just drop all it’s New York based partners. Amazon would lose a little, but the other mom-n-pop storefronts that Amazon partners with will suffer far worse.

Way to go New York!

I’ve bought stuff from Amazon’s web site from Target (who has stores in NY). They sell stuff through Amazon’s web site, and Amazon charged NYS tax on the order.