Court declines online tax case

Web sales-levy petitions denied

Tuesday, December 3, 2013

WASHINGTON - The Supreme Court on Monday declined to get involved in state efforts to force online retailers such as Amazon to collect sales tax from customers even in places where the companies do not have a physical presence.

As is its custom, the court gave no explanation for turning down petitions from Amazon and Overstock to review a decision by the New York Court of Appeals to uphold that state’s 2008 law requiring sales tax collections.

The issue - which could end what for many Americans is tax-free online shopping - is one of the most important in modern retailing. Traditional brick-and-mortar businesses say the online retailers receive an unfair advantage by not collecting sales tax in some areas.

All but five states impose sales taxes, and an increasing number have passed legislation to force online retailers such as Overstock and eBay to begin collecting those taxes from customers.

Online retailers complained that a patchwork of state laws and conflicting lower court decisions needed the Supreme Court’s attention. Amazon and Overstock said the New York law violates the Constitution by demanding tax collection from businesses that don’t have facilities in the state.

“There are billions of dollars of commerce for which we need guidance that we can rely upon,” said David Blum, a Chicago tax lawyer who represents both online retailers and traditional businesses. “We have evolved into an Internet world, and we need to know what’s taxable and what’s not.”

Seattle-based Amazon has no offices, distribution centers or workforce in New York. But the Court of Appeals ruled in March that Amazon’s relationship with third-party affiliates in the state that receive commissions for sending Web traffic its way satisfied the “substantial nexus” necessary to force the company to collect taxes.

“The bottom line,” Chief Judge Jonathan Lippman wrote for the majority, “is that if a vendor is paying New York residents to actively solicit business in this state, there is no reason why that vendor should not shoulder the appropriate tax burden.”

Overstock suspended its own affiliates program in New York when the law was enacted, sparing the Salt Lake City-based discount Internet retailer from having to collect taxes. Overstock was seeking to re-establish that program so it could generate more business in New York and potentially other states.

New York Attorney General Eric Schneiderman said in a statement that the Supreme Court’s action Monday “validates New York’s efforts to treat both online and brick-and-mortar retailers equally and fairly by requiring all retailers with a presence in our state to collect sales taxes.”

It has been more than 20 years since the Supreme Court ruled in Quill v. North Dakota that a state’s efforts to require tax collections from out-of-state companies violated the Commerce Clause of the Constitution. In the ruling involving Quill Corp., a mail-order company, the high court ruled the necessary “substantial nexus” exists when the out-ofstate retailer has a “physical presence” in the state.

But that decision was before a revolution in online shopping, and the New York court said the old test might now be outdated.

“An entity may now have a profound impact upon a foreign jurisdiction solely through its virtual projection via the Internet,” the court ruled.

The rise of the Internet has increased the stakes, putting tens of billions of dollars at issue. New York alone lost $1.8 billion in 2012 on Internet and catalog sales, according to the National Conference of State Legislatures. All told, states are estimated to lose $23 billion a year in uncollected sales taxes from Web retailers.

To underscore the judicial conflict over the issue, Illinois’ top court last month struck down its state law for collecting taxes from online retailers, which was modeled after New York’s.

The ability to make sales without collecting sales tax has been key to the success of Amazon and other online retailers, and the company has been fighting state efforts. But as Amazon has embarked on building distribution centers around the country to deliver goods more quickly - establishing the physical presence requirement - it has become subject to more state laws.

According to its website, Amazon now collects taxes on sales in 16 states, including Virginia and the country’s two most populous states: California and Texas.

In California, the company agreed to collect sales taxes and dropped efforts to repeal the state’s tax measure through a referendum. Amazon has since opened three distribution centers in the state. Nationwide, it has spent $14 billion and added 50 new facilities since 2010.

The Supreme Court’s Quill decision said Congress was in a better position than the court to provide uniformity in state tax collection requirements, but there has been little progress. The federal government does not impose sales tax.

Amazon has split from other online retailers to advocate for such a federal law.

Rep. Steve Womack, R-Ark., of Rogers, has sponsored legislation to help states collect taxes on Internet sales. The Senate this year backed the measure, known as the Marketplace Fairness Act of 2013, but it faces opposition on the other side of the Capitol and is stuck in the House Judiciary Committee.

“In 1992, the Supreme Court did not shut the door on the collection of salestax by remote sellers; it invited Congress to address the issue. Today’s decision validates that,” Womack said in a statement. “I am hopeful it will send a clear message to the House that the time to do so is now and that [Committee] Chairman [Bob] Goodlatte will quickly act on e-fairness legislation.”

Goodlatte hasn’t held a hearing or released a schedule for considering the measure. He has said he wants changes to the Senate bill, and he released a set of principles in September. At the time, he said he wanted the legislation to be so simple that it wouldn’t require a small-business exemption.

The Senate on May 6 passed the bill, which requires companies that surpass $1 million in Internet sales outside the states where they are located to collect every state’s sales tax. The bill was approved on a bipartisan 69-27 vote, with support from retailers such as Amazon, Wal-Mart Stores Inc. and Best Buy Co.

But some House Republicans have opposed the bill because technically, consumers are supposed to pay their applicable tax to their home states, but most never do unless the seller collects the money. House Republicans say approving the Senate bill would result in tax increases for constituents.

“The Supreme Court already has addressed the sales tax issue, saying in Quill that Congress can and should act to resolve it,” Amazon said in a statement Monday. “The Marketplace Fairness Act now pending before Congress would protect states’ rights to make their own revenue policy choices while allowing them to collect more than a fraction of the revenue that’s already owed.”

Rachelle Bernstein, vice president and tax counsel at the National Retail Federation, said she is hopeful that Congress will pass a law this year or next.

“There was always a need for federal legislation to provide some uniformity and simplicity to this area of the law, and that need is still there,” said Bernstein, whose group represents Macy’s Inc. and The Container Store Group Inc.

“We wish the House was further along, but the same can be said for just about any legislative initiative this year,” said Betsy Laird, senior vice president of the International Council of Shopping Centers.

The cases brought by the online retailers were Overstock.com v. New York Taxation Department, No. 13-252, and Amazon.com v. New York Taxation Department, No. 13-259.

Information for this article was contributed by Robert Barnes of The Washington Post, by Adam Liptak of The New York Times; by Greg Stohr, Danielle Kucera and Richard Rubin of Bloomberg News; and by Sarah D. Wire of the Arkansas Democrat-Gazette.

Front Section, Pages 1 on 12/03/2013