(Last updated: Feb. 3, 2015)

In 1992, the U.S. Supreme Court ruled that there was nothing inherently unconstitutional about requiring out-of-state retailers (such as mail order companies and internet retailers) to collect state and local sales taxes on orders shipped to in-state residents.  The only question was whether imposing such a requirement would cross the line from an acceptable burden on interstate commerce to an unreasonable one. Technology had greatly eased the burden of collecting taxes for multiple jurisdictions, the Court noted, but concluded that Congress should make the call.

The Court’s ruling left existing policy, under which remote retailers must collect sales taxes only in states where they have a physical presence or other tangible “nexus,” unchanged.  But the Court explicitly invited Congress to revisit the policy. “The underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve” the Court wrote.

Today, software and related tax services have largely eliminated any remaining difficulty in calculating and remitting sales taxes for the country’s many state and local jurisdictions. Yet Congress has so far failed to extend sales tax collection to online retailers.  The result is a public policy with at least three pernicious impacts:

• It disadvantages local businesses.  Exempting online retailers from having to collect sales tax, as regular stores must, gives these companies a 4 to 11 percent price advantage over local stores — a sizable competitive advantage in retailing.

• It undermines state and local governments by reducing tax revenue for schools, police, and other services.  This revenue loss that will only grow as internet sales continue to displace in-store sales.  Currently, 45 states assess sales taxes, from which they receive about 25 percent of their total revenue each year.  A 2009 University of Tennessee study estimated that uncollected sales taxes on e-commerce cost states $7.7 billion in 2008 and projected annual losses of $11.4 billion by 2012.  That figure grows to $23.3 billion when catalog phone and mail order sales are included.

• It makes a regressive tax more regressive, because only those with internet access, a credit card, and a home or workplace where they can accept daytime deliveries are able to take advantage of the tax exemption.

(It is important to note that, while remote sellers are not required to collect sales taxes, the tax is still owed by the individual who made the purchase.  Individuals are supposed to keep track of these purchases and pay an amount equivalent to the sales tax as a “use” tax on their state tax returns.  Less than 1 percent of people do, however, and the use tax is almost impossible to enforce, which effectively exempts these purchases.)

Federal Legislation

There are two primary strategies that states are pursuing to move toward a level playing field in which all retailers are subject to the same sales tax requirements.

One involves persuading Congress that collecting sales taxes for numerous state and local jurisdictions is no longer a burden for remote sellers.  As noted above, software makes complying with state and local sales tax rules much simpler than when the Supreme Court issued its 1992 ruling.

The Marketplace Fairness Act, which was introduced in the Senate by Senator Mike Enzi and 29 others, would authorize states that have simplified and aligned their sales tax rules to require large online and catalog retailers to collect sales taxes.  (Small online and mail order retailers with less than $1,000,000 in out-of-state sales would still be exempt.)

In order to meet the bill’s requirement of a simplified sales tax system, states must either 1) enact legislation implementing the provisions of the Streamlined Sales Tax Project (SSTP) or 2) implement minimum specifications outlined in the act, including the provision of free software for sellers, and pass legislation explicitly stating that the state will exercise its authority with regard to remote sellers.

The SSTP, launched by the National Governors Association, is a multi-state effort to simplify and align state sales tax policies. As of December 2014, 44 states and the District of Columbia had approved an interstate agreement that establishes uniform sales tax rules and definitions (of the 45 states that collect sales taxes), and 24 states had taken the next step of passing implementing legislation. Those 24 states are: Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming.

Under the SSTP legislation, states and cities still have the authority to determine what goods are taxed at what rate, but must adhere to rules governing such things as how and when they can change tax rates, as well as uniform definitions (e.g., whether marshmallows are considered food or candy for tax purposes).

The Senate passed the Marketplace Fairness Act with an overwhelming, bipartisan vote of 69 to 27 on May 6, 2013. An identical bill was introduced in the House, but stalled when, even after a strong push in the fall of 2014, Speaker John Boehner refused to bring the bill to a vote before the end of the 113th Congress.

State Legislation

The second strategy states are pursuing does not rely on Congressional action, but instead uses existing state authority to clarify what constituents “nexus” for the purposes of sales tax liability.  (Under the Supreme Court’s ruling, only retailers that have a physical presence, or nexus, in a state must collect sales tax on purchases made by that state’s residents.)

In the past, many national chains, despite having nexus in every state by virtue of their stores, claimed their e-commerce sites were distinct legal entities, unrelated to their bricks-and-mortar stores and therefore were exempt from collecting sales taxes. This practice is known as “entity isolation.”

State action in recent years has sharply curtailed the number of so-called “clicks-and-mortar” retailers using entity isolation to skirt collecting sales taxes on their online operations.  In 2001, California became the first state to issue an administrative ruling against the practice of entity isolation when its Board of Equalization ruled that Borders.com was not a separate entity, but the online extension of the chain Borders Books & Music and therefore must collect sales taxes on sales to California residents.

In the following years, several states amended their sales tax laws to clarify that the e-commerce arms of national chains still have nexus and that entity isolation does not absolve them of their obligation to collect sales tax.  (Below we include policy examples from Arkansas and Indiana.)

Increasingly concerned about the threat of court action by states and the potential liability, as well as the complexity and inefficiency of attempting to treat the e-commerce side of their operations as a separate company, in 2003 most national chains cut a deal with the states in which they were forgiven all of their back taxes in exchange for collecting sales taxes online from that point forward.   Although most national chains now collect sales taxes on online orders, there remain a few that do not.

In 2008, New York became the first state to further extend the definition of nexus to cover some web-only retailers, including Amazon.com. The legislature passed a bill, accompanying its budget, that said that web retailers have nexus in New York and must collect sales taxes if they have sales affiliates in the state that generate a combined total $10,000 a year or more in revenue for the retailer.   (Sales affiliates are individuals or organizations that are paid commission for linking to the online retailer’s web site. Amazon.com has thousands of sales affiliates nationwide, as do many other online retailers.  In all, more than 30 companies are covered by New York’s provision.)

In March 2013, New York’s highest court, the Court of Appeals, upheld a lower court decision when it ruled that the state’s law does not violate the commerce or due process clauses of the U. S. Constitution. The case was brought by Amazon.com and Overstock.com, which argued that the state did not have the authority to require online retailers to collect sales tax based on the nexus provided their in-state sales affiliates.

In October 2013, the Illinois Supreme Court overturned a similar state law.  However, the Court did not find that the law violates the U.S. Constitution.  The narrow ruling instead found that the law was at odds with a temporary federal restriction on imposing new taxes on internet activity.  That restriction is set to expire in November 2014.

Fourteen other states (see map) have followed New York’s lead, adopting similar laws that require online retailers with sales affiliates based within their borders to collect sales tax (scroll down for details on each state). California’s law also extends the obligation to collect sales taxes to online retailers that have subsidiaries or affiliated companies in the state.  (Amazon has a technology division in California that developed the Kindle.  It maintains divisions in several other states where it currently does not collect sales tax, claiming that its e-commerce operations are a separate company.)

South Dakota and Colorado have also passed laws requiring online retailers to notify their customers that they owe the state’s use tax on purchases in which sales tax is not collected.

More:

• The American Booksellers Association has created e-fairness action kits for nearly every state.

• Check out this interactive map to see how much of your state’s budget gap could be eliminated by requiring online sellers to collect sales taxes.

• One pager on the Marketplace Fairness Act.

• Amazon’s Big Assist from Government: New study shows how much Amazon benefits from not having to collect sales tax in many states.
  by Stacy Mitchell, May 1, 2014
• The “Amazon Tax”: Empirical Evidence from Amazon and Main Street Retailers
  by Brian Baugh, Itzhak Ben-David, and Hoonsuk Park, Ohio State University, April 2014

• Yes, Small Business Wants Online Giants to Collect Sales Tax
  by Kathleen McHugh and Oren Teicher, Business Week, Nov. 22, 2013

• Why Does Congress want me to Shun my Local Bookstore and Shop Online Instead?
  by Stacy Mitchell, Feb. 1, 2010

• Amazon’s Arguments Against Collecting Sales Taxes Do Not Withstand Scrutiny
  by Michael Mazerov, Center on Budget and Policy Priorities, Nov. 16, 2009

• New York’s “Amazon Law”: An Important Tool for Collecting Taxes Owed on Internet Purchases
  by Michael Mazerov, Center on Budget and Policy Priorities, July 23, 2009

• State and Local Government Sales Tax Revenue Losses from Electronic Commerce
  by Donald Bruce, William F. Fox, and LeAnn Luna, University of Tennessee, April 13, 2009