Sales Tax and the Internet: Supreme Court decides the case but doesn’t address the issue

The story was big on all the news programs as soon as the Supreme Court released its opinion: states can collect sales tax from online purchases! And like usual with Supreme Court decisions, the decision was reduced to a question of winners (brick-and-mortar stores) and losers (web-based stores).

But there is more to what the Court decided than who won or lost as a result of the decision, and there is even more to the decision than what the Court itself considered.

The case was South Dakota vs. Wayfair, Inc., and the big news was that a majority of the Justices decided that states have the authority to tax sales transactions conducted over the internet between state residents and out-of-state sellers. This reversed a 1992 decision, Quill Corp. vs. North Dakota, in which a majority of the Court held that a state could not tax transactions with sellers that have no physical presence in that state.

Like many other decisions the Court has made over the past two hundred odd years, though, the decision reaches firm conclusions without ever actually showing that the Justices actually understood what issues they were dealing with.

First of all, you need to understand that the label “sales tax” is a misnomer. It’s actually a “purchase tax,” assessed against the buyer and collected by the seller as the state’s fiduciary, or agent. It’s no better when it’s called a “use tax,” assessed against the buyer and payable by the buyer directly to the state.

The point it, it’s not a tax on the seller. It’s not payable by the seller. The sales tax money collected by the seller is never the seller’s money. The money the buyer pays to the seller for whatever was bought and sold has nothing to do with the sales tax money — other than to determine exactly how large the tax is that the buyer must pay for the transaction.

Why is this important? Because you need to understand that sales taxes are imposed on the purchaser, not the seller, and the seller collects the tax on behalf of the state, it does not pay it out of its own funds. The seller acts as an agent of the state. Sellers must register with the state in order to collect sales tax, since they are acting as an agent of the state.

To put it a different way, a state can require buyers to pay a tax, require sellers to collect the tax, and prohibit anyone from selling taxable goods or services unless they first register and get a state license to do so. If you do not get your sales tax license, you can’t sell anything a buyer would need to pay sales tax on.

There are many, many aspects to business, sales, delivery, contracts and so on to complicate matters. Indeed, the Justices themselves argue in dissents and concurrent opinions about such things, and how different decisions from the Court seem to pull the Constitution itself one way or another on how they should decide the case.

But when you cut through all the intellectual bramble, you’re left with a few fundamental issues that someone — probably Congress — needs to think through carefully and make some well-grounded decisions.

First, can one state force people in every other state to obey its laws? The Supreme Court seems to think so, at the moment, with regard to forcing sellers to collect sales tax on goods and services sent elsewhere. So, if I’m in Delaware, with no sales tax, South Dakota can force me to get a license to collect sales taxes on whatever I may deliver to someone in South Dakota, and to file sales tax records in Pierre along with a check for whatever amount I may have collected. And South Dakota can presumably audit my books and tell me I have to come on up there to talk to its tax department if they don’t like what they see. Same with Hawaii and Alaska (for the communities that have a sales tax), Minnesota and Texas.

This would be different, at least for most people on a practical scale. I live in New York, which has an income tax. If I go to Florida, which has no personal income tax, and take a summer job, I know I’ll need to pay New York income tax on what I earn in Florida — but can New York require the Florida employer to withhold New York taxes from my pay while I’m there? Should it be the call of the New York legislature whether the Florida employer should have to? Could New York prohibit employers in Florida from hiring anyone from New York if they didn’t agree to withhold New York taxes?

Second, sales taxes are anything but simple. What’s subject to tax is not always clear, even in the place where you live. Groceries and medications are often exempt — but what about nutritional supplements? Snack food? There can be carve-outs for things like clothing — up to a certain value, on specific dates or for limited periods of time. Cities and counties may have their own add-on rate — and you don’t necessarily know where a person lives just by looking at their zip code. If you’re the Delaware seller, how comfortable are you with exposing your business to the exact details of South Dakota’s sales tax practices? Or with paying someone else to tell you what’s going on in each and every jurisdiction you may get a customer from?

Third, there are costs involved in registering as a sales tax agent in even one state, much less the 45 states that have a sales tax. Each has its rules on what I need to do, including requirements and prohibitions like posting the license on the wall of my place of business. Lots of wall space for 45 certificates, eh? And if I’m a small business, a start-up selling socks on-line, for example, or a free-lance writer peddling my self-published books, how am I supposed to get all these licenses? Spend a week or two getting forms from all over, filling them out and waiting to see whether I filed them correctly? Pay some on-line law firm to do the work for me? How much work will I need to put into making sure I collect the correct amount of sales tax on each sale? Keeping records for each state, even if I don’t hit the floor set by one or another for collecting its sales tax? Tracking what rules I need to comply with, right now, next year, last year?

Fourth, what impact is there on interstate commerce if businesses are forced to decide whether to get properly registered and licensed to collect sales tax in states where they do not have a physical presence, or to avoid making any sales to any resident of a state which has not licensed them? None? Some? Depends? A majority of the Justices currently on the Supreme Court seem to think not — I should think otherwise (but that’s just me!).

The Court has stated repeatedly that Congress could solve this problem by exercise of its plenary power to regulate interstate commerce, but I don’t believe that to be the case. If the federal government has no authority to make state or local government enforce its laws, how can it claim authority to make state governments enforce other states’ laws?

Congress could, I suppose, impose its own sales tax, distributing the net proceeds to state governments according to some formula, like total income of all state residents, etc. In order to avoid double taxation, it could limit participation to states that eliminate their own sales tax. There are potential nightmares of epic proportions flowing from this kind of program, but it would be clearly within the authority of Congress to impose taxes and to spend money as it sees fit.

Or, states depending on sales taxes could turn to other ways to fund their operations. A sales tax is about the simplest kind of tax a government can impose, to be sure, in terms of administration for the government and of execution on the part of the people who pay it, collect it and send it along to the state. This makes it easier than income taxes, with all the forms to deal with all the rules dealing with all the complexities of finance in the modern world, or even property taxes, which are based on values of property that are anything but easy to ascertain or maintain.

But sales can be regressive, imposing more of a burden on the poor than on the wealthy. This burden can be shifted a bit, by exempting food, medicine, clothing and housing from the list of taxable sales, things that may well make up more of what people buy when they don’t have much money to spare on other things — like cell phone, telecommunications, transportation, entertainment, and so on, things that are actually necessities for everyone in the modern world.

No matter the wisdom or error in the Court’s analysis of the problem set, legislators and the public that elect them really need to put a lot of thought into these fundamental issues, evaluate them from many perspectives, and decide on actions that will make things as fair and reasonable as possible in the world we now live in.


Learned in the Army to provide information that is thorough, accurate, meaningful and useful — and what happens when you don’t.

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