By Edward Zelinsky
As they scramble for tax revenue in a challenging environment, the states increasingly turn to so-called “Amazon” laws to force out-of-state internet and mail order retailers to collect tax on their sales. The Illinois General Assembly is the most recent state legislature to pass an Amazon statute. New York, Colorado, Rhode Island, North Carolina and Oklahoma have already enacted such laws while Amazon acts are pending in other state legislatures.
While they differ in important respects, all of these proposed and enacted laws share the premise that goods which are taxed when purchased in a conventional, bricks-and-mortar store should also be taxed when bought from an online or mail order retailer. This premise is compelling.
It is neither fair nor efficient for a sales tax to discriminate between close economic substitutes, taxing one but not the other. A sales tax should not tax green apples while exempting red apples. Such discrimination is inequitable to growers of green apples and distorts consumer choice by artificially increasing the after-tax price of green apples relative to the competing (and tax-free) product, i.e., red apples.
This is in essence the sales tax status quo under the U.S. Supreme Court’s decision in Quill Corp. v. North Dakota. Quill held that, under the U.S. Constitution’s dormant Commerce Clause, a state can require a retailer to collect and remit tax on its sales only if the retailer is physically present in the taxing state. Under this rule, firms like Amazon, Overstock.com and similar mail order firms need not collect tax on their sales since they lack physical presence in most states.
As a matter of law, when an electronic or mail order retailer does not withhold tax, the buyer of online or mail order merchandise is required to self-assess and pay the tax to his home state. In practice, it is virtually impossible for the states to enforce this obligation. Goods ordered over the internet or by mail order are thus effectively tax-free while the same goods are subject to sales tax when purchased in a conventional store physically present in the taxing state.
This de facto tax discrimination between conventional and electronic sales is no more fair or efficient than a sales tax which taxes green apples but not red apples.
The states (supported by bricks-and-mortar retailers) have asked Congress for federal legislation permitting the states to require out-of-state retailers to collect taxes on their electronic and mail order sales, even if such retailers lack in-state physical presence. So far, Amazon and its allies have successfully lobbied Congress to resist the states’ pleas.
Frustrated by Congress’ inaction, state Amazon laws are a form of self-help, designed to require out-of-state retailers to collect state taxes on their sales despite Quill. The Amazon laws of New York, North Carolina and Rhode Island create statutory presumptions that in-state affiliates create sales tax jurisdiction over the out-of-state internet firms with which such affiliates are associated. Taking a different approach, Colorado’s Amazon law requires internet retailers to report their Colorado sales both to the Colorado purchasers and to the Colorado Department of Revenue.
For two reasons, these state Amazon laws are neither a practical nor a legal solution to the problem of untaxed internet and mail order sales. Laws like Colorado’s, which require reporting by out-of-state firms, are unconstitutional under Quill, as the U.S. District Court for the District of Colorado recently held. Laws like those of New York, Rhode Island and North Carolina can be avoided in practice by terminating affiliates in those states – as Amazon has already done in Rhode Island and North Carolina.
These are not the only instances of Amazon playing hardball with the states on the sales tax issue. When Texas Comptroller Susan Combs, citing Amazon’s Texas distribution center, demanded that Amazon collect taxes on its sales in the Lone Star State, Amazon retaliated by announcing its closure of the center with a loss of 119 jobs.
There is a way out of this mess: Congress should adopt federal legislation enabling each state to require that an out-of-state retailer must collect the state’s tax once the retailer’s annual sales into the state have reached a reasonable threshold, e.g., sales of $10,000 in any year.
Democrats should support such legislation because it would help state governments to fund themselves in difficult times. Republicans should support such legislation because it would create a level playing field in the marketplace by requiring all firms to play by the same tax rules and collect tax on their respective sales. Both parties should support such federal legislation because it will make the U.S. tax system more fair and efficient.
Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears here.