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By: Adam Candee of Legal Sports Report

For the first time since the Supreme Court repealed PASPA in May, Congress will take up the subject of legal sports betting this week.

The hearing entitled “Post-PASPA: An Examination of Sports Betting in America” will take place in the House Subcommittee on Crime, Terrorism, Homeland Security, and Investigation, a subcommittee of the House Judiciary Committee.

Let’s take a closer look at what to expect when legislators gather to discuss the country’s sports betting industry …

When and where will the hearing be?

The hearing starts at 10 a.m. EDT Thursday. It will take place at the Rayburn Building on Capitol Hill in Washington, D.C.

You can watch a live stream of the hearing hereLegal Sports Report will have ongoing coverage Thursday throughout the hearing.

Why is Congress looking at sports betting?

Sports betting was settled law in the United States for 26 years before May. That’s when the Supreme Court ruled PASPA unconstitutional via the Murphy v. NCAA case.

Pro sports leagues and the NCAA supported PASPA’s long-standing blanket ban on single-game sports betting outside Nevada. They fought for years against New Jersey in the Murphy case and remain unhappy about the loss of PASPA.

The high court ruled in May that states now could make their own sports betting rules, absent a new federal law. Since then, DelawareNew JerseyMississippi, and West Virginia have begun legal sports bettingRhode Island and Pennsylvania likely will start their operations within 2018 as well.

State-level lobbying efforts have not yielded much of what the leagues now want: a cut of the profits from legal sports betting. They also prefer not to fight for that cut in every state, so they are lobbying Congress for a new federal solution.

The leagues found an ally in Sen. Chuck Schumer (D-NY), the Senate Minority Leader. Schumer earlier this month proposed new federal sports betting guidelines that Congress could enact or states could follow. Unsurprisingly, the terms heavily favor the leagues, which are headquartered in New York.

Sen. Orrin Hatch (R-UT), a co-author of PASPA, also wants a new federal law. Hatch reaffirmed his position as the Senate’s anti-sports betting spokesperson quickly after the Supreme Court decision.

Is there a sports betting bill?

In short, no. That does not guarantee we are free and clear from one appearing, though.

Hatch twice promised to introduce a new federal law after the repeal of PASPA. He has not yet dropped that bill.

Schumer’s proposed framework is not a bill and does not look ready-made to become one. He also left open the possibility that his preferred guidelines are used by states crafting their own laws.

Rep. Frank Pallone (D-NJ) recently withdrew the GAME Act bill he proposed in the House. Pallone introduced the legislation on the day the Supreme Court heard arguments on PASPA. Its utility largely expired once state-level sports betting bills became legal.

The legislation from Pallone, a longtime supporter of sports betting in New Jersey, appeared more friendly to states and casinos than what can be expected from Hatch or Schumer.

Who is testifying in the hearing?

The subcommittee will hear testimony from five people:

  • Sara Slane, senior vice president, public affairs, American Gaming Association
  • Becky Harris, chair, Nevada Gaming Control Board
  • Jocelyn Moore, executive vice president, communications and public affairs, National Football League
  • Jon Bruning, counselor, Coalition to Stop Internet Gambling (CSIG)
  • Les Bernal, national director, Stop Predatory Gambling

Some sources indicate John Kindt, an anti-gambling professor from the University of Illinois, also will appear.

A breakdown of what to expect from their testimony can be found here. Expect Slane and Harris to back the rights of states to craft their own legislation, while Bruning and Kindt warn of the vices of iGaming. Moore will present the NFL’s position, which favors a federal law but not integrity fees.

Who is on the committee? Are any of the states that have legalized sports betting represented on the committee?

Here are the members of the subcommittee:

  • James Sensenbrenner Jr. (R-WI), Chair
  • Louie Gohmert (R-TX), Vice Chair
  • Sheila Jackson Lee (D-TX), Ranking Member
  • Karen Bass (D-CA)
  • Steve Chabot (R-OH)
  • Val Demings (D-FL)
  • Trey Gowdy (R-SC)
  • Hakeem Jeffries (D-NY)
  • Mike Johnson (R-LA)
  • Ted Lieu (D-CA)
  • Ted Poe (R-TX)
  • Jamie Raskin (D-MD)
  • John Ratcliffe (R-TX)
  • Cedric Richmond (D-LA)
  • Martha Roby (R-AL)
  • Keith Rothfus (R-PA)
  • John Rutherford (R-FL)

What might jump out at you is that none of the subcommittee members hails from a state with legal sports betting. Only Rothfus represents a state with a sports betting law on the books, although Pennsylvania is not live.

Considering the potential for hyperbole in some of the testimony, the knowledge level of subcommittee members can be speculated upon. Can they weather any bluster or scare tactics to get to the substance of what is happening today in US legal sports betting?

By: Robert Mann of Gaming Today

A diverse line-up of witnesses is now scheduled for Thursday’s federal hearing on sports wagering in Washington, D.C.

The House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations hearing is called “Post-PASPA: An Examination of Sports Betting in America.” The subcommittee is charged with reviewing testimony on the national consequences of the legalization of sports wagering.

The scheduled witnesses are:

• Jocelyn Moore, executive vice president of communications and public affairs at the NFL;

• Sara Slane, senior vice president of public affairs at the American Gaming Association;

• Becky Harris, chair of the Nevada Gaming Control Board;

• Jon Bruning, counselor at the Coalition to Stop Internet Gambling (CSIG);

• John Warren Kindt, professor at the University of Illinois.

A spokesperson for Rep. Jim Sensenbrenner (R-Wis.), who chairs the subcommittee, told Bloomberg Monday the chairman “looks forward to hearing from these witnesses who represent a wide variety of positions on sports betting.”

By: Adam Schuster in the St. Clair Record

Illinoisans should prepare to pay more for online purchases from out-of-state retailers.

The U.S. Supreme Court’s recent decision in South Dakota v. Wayfair Inc. is projected to increase revenue to the Illinois state budget by $140 million this year. As a result of the decision, and a change in Illinois law passed with this year’s budget bill, most out-of-state retailers who sell to Illinois customers will be required to collect and remit a “use tax” of 6.25 percent on all online transactions starting Oct. 1.

Technically, Illinoisans are already required to pay the use tax – an alternative to the sales tax paid on transactions at brick-and-mortar retailers – on online transactions. However, not many do. And under Supreme Court precedent established in 1992 in Quill Corp. v. North Dakota, only businesses with a physical presence in the state were required to collect sales taxes for online purchases.

Therefore, in practice, many online purchases from out-of-state retailers were free from state taxation. Proponents of the Wayfair decision believe that Quill created an unfair advantage for online retailers over brick-and-mortar stores.

The Illinois General Assembly changed the requirements under which companies must collect and remit the use tax in the fiscal year 2019 budget implementation bill. Anticipating the outcome of Wayfair, Illinois’ requirements now mirror those of South Dakota. All businesses with over $100,000 of online sales in Illinois, or at least 200 discrete transactions, are required to collect the tax on all purchases.

The new rules take effect Oct. 1. The Illinois Department of Revenue estimates the stricter collections requirements will generate an additional $200 million in sales tax collections annually. Because the rules are not in effect for all of fiscal year 2019 – which goes from July 1, 2018, to June 30, 2019 – the estimate for the first year of collections is $140 million.

However, some uncertainty around this new tax remains.

A bill introduced in the U.S Congress by Wisconsin Republican Jim Sensenbrenner would delay implementation until Jan. 1, 2019, and would also restrict the businesses subject to collection requirements to those that generate more than $10 million in annual U.S. e-commerce sales. Both changes would likely reduce the amount of revenue Illinois could raise this year.

New federal restrictions on states’ collection of online sales taxes would put another hole in Illinois’ fiscal year 2019 budget, which is already as much as $1.5 billion out of balance due to its reliance on budget gimmicks and structural overspending.

Sensenbrenner’s bill, which is co-sponsored by two Democrats, according to Reuters, also calls on states to create interstate agreements that simplify sales tax collections for out-of-state online retailers.

South Dakota’s participation in the Streamlined Sales and Use Tax Agreement, or SSUTA, was cited as a positive factor by the Supreme Court in Wayfair. The SSUTA, which currently has 23 full member states, simplifies online sales tax collections by creating uniform rules and processes for compliance. Illinois is not a member.

While the exact timing and scope of the change remains somewhat uncertain, one thing is clear: Illinoisans will soon be paying taxes on more online purchases. Unfortunately, the Illinois General Assembly has already planned to spend this money rather than using it to pay down debt or repeal other harmful taxes.

By: Ryan Prete of Bloomberg Tax

A National Football League official, an American Gaming Association official, and an official from the Sheldon Adelson-backed Coalition to Stop Online Gaming. Witnesses from all sides of the argument are set to discuss sports betting implications on Capitol Hill.

The House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations has released the witness list for its Sept. 27 hearing titled “Post-PASPA: An Examination of Sports Betting in America.” The scheduled witnesses are:

  • Jocelyn Moore, executive vice president of communications and public affairs at the NFL;
  • Sarah Slane, senior vice president of public affairs at the American Gaming Association;
  • Becky Harris, chair of the Nevada Gaming Control Board;
  • Jon Bruning, counselor at the Coalition to Stop Internet Gambling (CSIG); and
  • John Warren Kindt, professor at the University of Illinois.

A spokesperson for Rep. Jim Sensenbrenner (R-Wis.), who chairs the subcommittee, told Bloomberg Tax Sept. 24 that the chairman “looks forward to hearing from these witnesses who represent a wide variety of positions on sports betting.”

This is the first federal hearing on sports betting since the U.S. Supreme Court cleared the way for states to allow bets on sports in its May ruling in Murphy v. NCAA,which repealed the federal Professional and Amateur Sports Protection Act of 1992 (PASPA). That law had prohibited states from “authorizing” gambling related to professional and amateur sports leagues.

The hearing also follows week three of the NFL season, a time of fervent betting. In a Sept. 5 report, the American Gaming Association, in conjunction with the Nielsen Sports research company, estimated the NFL’s annual revenue could increase by $2.3 billion a year—a 13 percent revenue increase—due to widely available, legal sports betting.

Witness to Squabble?

Dustin Gouker, managing editor at Legal Sports Report—a sports betting-centric online news source—told Bloomberg Tax that other than likely arguing between the AGA’s Slane and Kindt and the CSIG’s Bruning, he doesn’t anticipate an argumentative atmosphere at the hearing.

Gouker said in an email that he’s “not sure how invested/knowledgeable any of the members of this subcommittee are on the subject. I am not expecting much at all from it.”

Adelson—chairman and majority shareholder of Las Vegas Sands, the world’s largest casino operator—will be represented at the hearing. He has spent more than $200 million in the past few years championing Republican candidates and conservative causes.

“The CSIG is generally known to be bankrolled by Sheldon Adelson, who is just about the only sector of the gaming industry wholeheartedly opposed to online gaming,” Gouker said, adding that Adelson’s Las Vegas properties do offer online wagering.

Growing Federal Concerns

The hearing follows recent calls for federal intervention from Senate leadership.

On Aug. 29, Senate Minority Leader Charles E. Schumer (D-N.Y.) proposed a “desperately needed” federal sports betting framework, a move that state tax policy experts say could hurt state sovereignty and tax revenue pursuits.

Schumer also published a memo that included three principles he deems necessary in a framework: protecting young people and those suffering from gambling addiction, protecting the integrity of the game, and protecting consumers and individuals placing bets.

During an Aug. 24 update on the Senate floor, Sen. Orrin G. Hatch (R-Utah) said progress is being made, and that he would release a legislative proposal “in the coming weeks.” There is currently a 0.25 percent federal excise tax on all betting handles.

By: Ryan Lessard of the New Hampshire Union Leader

PITTSFIELD — A small business that uses software to broker rare coin and stamp sales on eBay is worried the U.S. Supreme Court ruling in South Dakota v. Wayfair may put him out of business if Congress doesn’t pass a fix.

Joe Cortese, the owner of NobleSpirit in Pittsfield, is worried. Since the Supreme Court’s Wayfair decision, which requires sellers to collect and pay out-of-state sales tax when the buyer is in a tax district with a sales tax, he said he is potentially liable to pay sales taxes in more than 10,000 tax districts across the country, which is too much for him to handle. 

And he said the decision could overturn one of the biggest advantages of doing business in New Hampshire; the absence of a broad-based sales tax.

“I would love to know what’s going to happen to New Hampshire and our tax-free status,” Cortese said.

He said his business makes about $3 million each year, which he said places him within the traditional definition of small business, defined by revenues under $5 million.

While many of the specific ways this decision could affect his business remains unclear, Cortese said one thing is certain; he can’t make software smart enough to account for the ever-shifting tax rates and product definitions of 10,000 different jurisdictions. 

“It’s a physical, literal impossibility,” he said.

But his company is too small to hire a sizeable accounting department with the staff needed to ensure NobleSpirit complies with all the varied tax laws, he says — such an expense would likely put the company at a net revenue loss. 

“This is the fundamental reason why this is such a problem for small businesses,” Cortese said. “Just the fear of audit is enough to scare people out of business.” 

He said he is “absolutely” at risk of going out of business if there are no legislative solutions designed to protect small businesses like his. And he doesn’t think he’s alone.

Cortese has an apocalyptic vision of the American economy imploding into another recession or depression if small businesses are required to incur unreasonable costs required to comply with the new ruling.

That’s because a majority of employer businesses are small businesses with fewer than 500 employees. 

NobleSpirit is not only a seller of rare coins, stamps and other collectibles, it also makes a software program called Meridian which automates and streamlines the process of posting products on eBay, capturing consumer data, completing the sales and shipping. 

As a result, Cortese said he would be responsible for not only collecting the taxes from his own sales, but those of thousands of other subscribers who use his software.

He’s been in business since 1998 and created the first Meridian program in 2002. Cortese said they had about 4,000 subscribers to that program. They are currently in the process of redesigning and modernizing the platform, which will be ready for release soon.

On top of the technical burdens of the new requirements, Cortese also has a philosophical problem with paying taxes in a jurisdiction where his company has no physical presence and, therefore, no say in how the tax dollars are spent. It’s taxation without representation, he said. 

Cortese supports a bipartisan bill in Congress authored by Rep. Jim Sensenbrenner (R-Wis.) that would provide some clarity and prohibit states from requiring sales taxes from companies that make less than $10 million in annual sales.

But even if that passes, he said it would discourage companies from growing past that $10 million mark, which he said is bad for him and bad for the country.

By: The Wisconsin State Journal

Wisconsin stands to benefit from the 2018 farm bill now before Congress. That’s why it’s important for the committee hashing out differences between the House and Senate versions to produce a compromise by the Sept. 30 deadline.

While the committee can keep negotiating beyond the deadline by extending the current farm bill, more time is not what Congress needs to resolve the disputes. Instead, the key to unlocking an agreement is for Congress to appreciate what the 19th-century master politician Otto von Bismarck so well understood: “Politics is the art of the possible, the attainable — the art of the next best.”

The farm bill is possible and attainable before the end of this month if Republicans and Democrats stop holding out for what’s best for their partisan goals and aim instead for the next best solution, which will serve the country’s interests. That’s the art of compromise that has been missing from Washington, D.C., for so long.

Holding up passage of the $420 billion farm bill is a dispute over the Supplemental Nutrition Assistance Program, formerly known as the food stamp program, which accounts for 80 percent of the spending. The House version cuts SNAP by tightening eligibility and imposing work requirements on more recipients. The Senate version leaves SNAP intact.

The House version is expected to kick 76,000 Wisconsin residents off food stamps, including 23,000 children. That’s about 11 percent of the state’s total food-stamp recipients.

Reducing fraud and encouraging work are important. But so is feeding families in need. The congressional negotiators’ job is to find a middle ground. They should do their jobs. Failure puts American agriculture at risk.

The farm bill comes up for debate every five years. Wisconsin entered this debate cycle with a need for improvement in the bill’s provisions affecting the dairy industry. Agriculture contributes about $88 billion a year to Wisconsin’s economy and provides about 12 percent of Wisconsin’s jobs. About half the economic contribution comes from the dairy industry. Wisconsin, America’s Dairyland, is the top cheese-producing state and is home to more dairy farmers than any other state.

The dairy provision in the current farm bill, the Margin Protection Program, was a disappointment. Based on an insurance system in which farmers paid premiums to get taxpayer-subsidized insurance to protect against losses, the system proved to be a money-loser.

The Senate and House versions of the new dairy insurance program are slightly different, but both offer a stronger safety net. A University of Missouri professor concluded the new program could offer six times the benefits of the old program, depending on the size of a farm and the choice of coverage.

For taxpayers, the new insurance program should be more cost-effective. The current bill’s dairy program has a budget baseline of about $50 million a year. The new program should cost taxpayers about $100 million more over five years. For that extra expense, consumers should gain more stability in dairy product prices and supplies.

The farm bill makes other improvements important to Wisconsin, including legalizing the production of industrial hemp, in which the state once led the nation.

The bill also falls short in many areas. For example, though Wisconsin congressmen Ron Kind and Jim Sensenbrenner helped lead efforts to cap payments to wealthy farmers, the bill does almost nothing to rein in such unnecessary subsidies. But no farm bill has been perfect. Congress cannot let partisan perfection be the enemy of the greater good.

For Wisconsin, this bill is better than the expiring farm bill. Pass it.

By: Christian M. Wade of the Gloucester Daily Times

BOSTON — Lawmakers in Washington are weighing several plans that may complicate the efforts of Massachusetts and other states to collect sales taxes from online retailers.

A bill filed by U.S. Rep. Jim Sensenbrenner, R-Wisconsin, would prohibit states from collecting sales taxes from online sellers with less than $10 million in annual sales. States that begin collecting sales tax before Jan. 1, 2019, would have to refund online businesses that paid the taxes.

Congressman Bob Gibbs, R-Ohio, has filed a bill to prohibit states from collecting online sales taxes for at least a year, to give businesses time to comply.

Both proposals come on the heels of a U.S. Supreme Court ruling this summer that allows states to collect sales taxes from out-of-state online retailers.

The 5-4 decision in South Dakota v. Wayfair was heralded as a victory for states that have been losing billions of dollars annually in online sales taxes, as well as brick-and-mortar retailers losing customers to online sellers. Justices weighed arguments from three-dozen states pressing for a ruling that would allow them to collect taxes on purchases involving out-of-state merchants.

Still another proposal, filed by Sen. Jon Tester, D-Montana, would undo the Wayfair decision and prevent states from collecting from sellers with no physical presence there.

NetChoice — a trade group representing Overstock.com, eBay, PayPal and other online retailers — says the proposals on Capitol Hill are aimed at Massachusetts and other states that are trying to squeeze more money out of retailers than the court’s decision allows for, by collecting taxes on purchases made prior to the ruling.

“The unreasonable approach that’s being taken by Massachusetts is exactly why we need congressional action,” said Steve DelBianco, the group’s executive director.

“We need to stop the madness,” he said. “Congress needs to prevent retroactive liability for companies by the states, we need a moratorium on new demands so that retailers have time to comply, and we need incentives for states to simplify their tax regimes and in the meantime protect small businesses.”

‘Wrongheaded’

Retail groups that have been prodding the state for years to tax online sales decried the push in Congress to blunt the impact of the court’s ruling.

“It’s wrongheaded and it’s being driven by online companies like eBay that want to delay this ruling as long as possible,” said Jon Hurst, president of the Massachusetts Association of Retailers, which opposes the legislation. “This has been a 20-year battle — it’s time to put this behind us and get everyone on the same playing field.”

Hurst’s group has signed onto a letter to congressional leaders from a coalition that includes the National Retail Federation and National Association of Realtors, calling on them to reject the proposals.

“For Congress to insert themselves post-ruling only creates additional uncertainty and further complicates the implementation process, while undermining the level playing field created by the Wayfair decision,” the letter reads.

Last year, Massachusetts issued a directive ordering out-of-state companies that meet certain criteria — 100 or more online sales involving Bay State consumers, or that are worth at least $500,000 per year — to collect the state’s 6.25 percent sales tax. At least 250 companies have agreed to do so.

At the time, the state Department of Revenue relied on their argument that ‘“cookies” stored on a computer or smartphone apps by websites effectively create a retailer’s physical presence in the state. But state officials say the high court’s ruling eliminated as “unsound and incorrect” the physical presence requirement.

On Monday, the Department of Revenue issued a notice clarifying that it intends to collect sales taxes from online retailers who meet the criteria for the nine-month period prior to the court’s ruling.

“A significant number of vendors complied with the regulation as of the Oct. 1, 2017, effective date, or shortly thereafter, and continue to collect and remit sales or use tax,” Revenue Commissioner Christopher Harding wrote in the advisory to taxpayers.

Legal challenge

Meanwhile, the state is still embroiled in a legal challenge by a Virginia-based internet retailer over efforts to collect online sales taxes. Crutchfield Corp., which sells electronics, sued last year claiming the state’s policy violates interstate commerce laws.

The company’s attorneys have said in court filings the rule “imposes an obligation on certain internet vendors to collect and remit sales or use taxes on electronic commerce” that are not applied to other businesses. Neither side would comment on the litigation.

In Massachusetts, revenue officials say about $200 million a year is lost to online sales — a figure that has swelled as consumers do more business in cyberspace.

Retailers near the border with New Hampshire — one of five states that don’t charge sales taxes — face a double blow from tax-free competitors.

Massachusetts has a so-called “use tax” that requires residents to pay sales taxes on purchases made out of state or online. The state asks taxpayers to self-report online spending, but analysts say enforcement is almost nonexistent.

“If Massachusetts is so desperate for that tax revenue, let them pursue their own citizens to pay the use tax they already owe on those purchases,” DelBianco said.

By: Ryan Prete of Bloomberg Tax

Remote sellers and consumers should expect action on the newest federal online sales tax bill “definitely” before 2019, according to the lawmaker behind it.

Rep. Jim Sensenbrenner (R-Wis.) told Bloomberg Tax Sept. 20 that he is “very confident” that the Online Sales Simplicity and Small Business Relief Act of 2018 (H.R. 6814) will be considered in the House before the end of the year. If he’s right, it would be the first time such a bill would receive consideration in either chamber since 2013.

“I think there will be a markup that will then send the bill to the House floor, but this will of course be up to Chairman Goodlatte,” Sensenbrenner said.

He said that questions about the timeline for a markup and floor vote would have to be forwarded to Rep. Robert W. Goodlatte (R-Va.), who chairs the House Judiciary Committee. Goodlatte’s office didn’t immediately respond to a request for comment.

Goodlatte is often considered the main roadblock behind the lack of consideration for the multiple online sales tax bills, but he will retire at the close of 115th Congress in January.

Sensenbrenner’s bill, introduced Sept. 13, is the latest federal response to the U.S. Supreme Court’s June 21 South Dakota v. Wayfair ruling—which tossed out Quill Corp. v. North Dakota, the Supreme Court’s 1992 physical presence threshold for when states could tax remote sales. The majority in the 5-4 ruling suggested strongly that South Dakota’s law would pass constitutional muster; the law includes economic nexus thresholds of $100,000 or 200 transactions a year.

Sensenbrenner’s bill would:

  • ban states from retroactively imposing sales tax collection duties on remote online sellers;
  • require all states to push back economic nexus implementation dates to Jan. 1, 2019; and
  • establish a small-seller exemption, meaning a remote seller with gross annual receipts below $10 million in the U.S. isn’t required to collect and remit sales tax.

“This is a transition bill—it clarifies the items that were not specifically addressed by the Wayfair decision,” Sensenbrenner said.

Sales Tax Refunds?

Sensenbrenner said that if his bill is enacted, states that began collecting sales tax before Jan. 1, 2019, would have to refund the sales tax to the seller, who would then have to refund the tax to the purchaser or face potential legal battles.

“Every state that has a sales tax also requires the sellers to get sales tax collection permits, so the refund would not be very difficult,” he said. “The state doesn’t know who the purchasers were. An ethical seller would refund the sales tax to the purchaser, and if he didn’t refund it to the purchaser, then I think he would be subject to a lawsuit , probably in small claims court to force the refund to the purchaser.”

Sensenbrenner said the refund would be similar to, and as easy as, a credit card statement refund.

Of the 26 states that have enacted an economic nexus model, 19 currently have set implementation dates before Jan. 1, 2019. A complete list of states’ implementation dates is compiled below.

What About Use Tax?

Steve DelBianco, president and CEO of NetChoice, an e-commerce trade organization, defended Sensenbrenner’s bill, arguing that in the event the bill became law, any sales tax retained by a state before Jan. 1, 2019, could be retained to satisfy use taxes owed.

Use tax is a sales tax on purchases made outside one’s state of residence for taxable items that will be used, stored, or consumed in one’s state of residence and on which no tax was collected in the state of purchase, according to investopedia.

“Use taxes are the flip side of the coin, it’s the same tax, if you don’t owe sales tax you still owe use tax,” DelBianco told Bloomberg Tax. “The real intention of Sensenbrenner’s bill is to relieve businesses of far-too-soon state implementation dates. It’s a small thing to ask for states to wait until January.”

State Group Reaffirms Opposition

Jake Lestock, a policy specialist at the National Conference of State Legislatures (NCSL), said the organization and states are both concerned over unanswered questions present in Sensenbrenner’s bill.

“It would be great to assume a seller would refund a purchaser in the event the bill passes, but there is no language in the bill requiring this,” he told Bloomberg Tax. “I’ve talked with many attorneys about this legislation, and they all say it presents the case for a bunch of future lawsuits.”

“The faults in this bill show that it isn’t ready for the light of day yet, and the NCSL will continue to oppose this legislation,” he said.

The NCSL in a letter urged Congress not to advance federal proposals that seek to limit and delay the implementation of state economic nexus laws.

“As the states continue to ensure that remote sales tax implementation is done properly, we strongly urge you to respect these states’ efforts and not let legislation advance that would seek to hinder or halt implementation of the Wayfair decision by imposing federal requirements on remote sales tax collection,” the Sept. 18 lettersaid.

Why Now?

So why is Congress picking up speed in the online sales tax world now, after the high court already ruled on the issue?

Sensenbrenner said it is namely because of something the high court didn’t directly address: retroactivity.

“The Supreme Court decision did not talk about retroactivity, and there are some states that want to apply this retroactively, and for small sellers, this could subject them to audits in all 50 states,” Sensenbrenner said.

His bill would bar a state from imposing a sales tax collection duty on a seller before June 21, the date the Wayfair decision was issued.

Justice Anthony Kennedy only suggested in Wayfair that a state’s law was more likely to pass constitutional muster if the state didn’t push for retroactive taxes.

Pushing the Limits

Currently, no state has formally pursued retroactive back taxes, but Massachusetts and Rhode Island have danced around retroactive pursuits.

The Massachusetts “cookie nexus” regulation that was promulgated on Sept. 22, 2017, and applies to vendors making internet sales in Massachusetts was prospective as of its effective date, Oct. 1, 2017.

The state didn’t impose collection obligations before the law’s effective date, and the state therefore emphasized to Bloomberg Tax that it isn’t applying its law retroactively, though a retail group suing over the law in Virginia court has made those allegations.

Prompted by inquiries from taxpayers, the Massachusetts Department of Revenue issued a technical information release (TIR) this week, which stated that the standards for sales and use tax collection by remote sellers that were announced in the 2017 regulation continue to apply and aren’t affected by the Wayfair decision.

Rhode Island’s law requiring out-of-state vendors to either collect and remit or notify buyers took effect Aug. 17, 2017—well before the June 21 Wayfair decision. But it is an elective regime, requiring affected retailers either to (1) register and collect and remit or (2) comply with notice requirements. The state has therefore emphasized to Bloomberg Tax that its law isn’t imposing retroactive tax liability.

At one point Hawaii said it would go retroactive, but then changed its stance.

Other Online Sales Tax Bills

Sensenbrenner was also the lawmaker behind the No Regulation Without Representation Act of 2017 (H.R. 2887) (NRRA), which sought to codify Quill’s physical-presence standard. Sensenbrenner said the NRRA isn’t technically considered “dead” until the 115th Congress formally ends on Jan. 3, 2019.

The NRRA received a House Judiciary subcommittee hearing in July 2017.

Other active federal bills include:

None of the bills have advanced in the 115th Congress.

Implementation Dates

The implementation dates and nexus thresholds of 26 states that have enacted economic nexus statutes are below:

  • Alabama (Oct. 1, 2018), $250,000 in in-state sales;
  • Connecticut (Dec. 1, 2018), 200 transactions and $250,000 in in-state sales;
  • Georgia (Jan. 1, 2019), 200 transactions and $250,000 in in-state sales;
  • Hawaii (July 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Illinois (Oct. 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Indiana (Oct. 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Iowa (Jan. 1, 2019), 200 transactions or $100,000 in in-state sales;
  • Kentucky (Oct. 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Louisiana (Jan. 1, 2019), 200 transactions or $100,000 in in-state sales;
  • Maine (Implementation date not yet announced), 200 transactions or $100,000 in in-state sales;
  • Massachusetts (Oct. 1, 2017), 100 transactions and $500,000 in in-state sales;
  • Michigan (Oct. 1, 2018) 200 transactions or $100,000 in in-state sales;
  • Minnesota (Oct. 1, 2018), 100 transactions or $100,000 in in-state sales in at least 10 transactions;
  • Mississippi (Dec. 1, 2017), $250,000 in in-state sales;
  • North Dakota (Oct. 1, 2018, or 60 days after a remote retailers meets the state’s threshold—whichever is later), 200 transactions or $100,000 in in-state sales;
  • Ohio (June 30, 2017), $500,000 in in-state sales;
  • Oklahoma (July 1, 2018), $10,000 in in-state sales;
  • Pennsylvania (April 1, 2018), $10,000 in in-state sales;
  • Rhode Island (Aug. 17, 2017), 200 transactions or $100,000 in in-state sales;
  • South Carolina (Nov. 1, 2018), $100,000 in in-state sales;
  • South Dakota (Nov. 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Tennessee (currently on hold due to litigation), $500,000 in in-state sales;
  • Utah (Jan. 1, 2019), 200 transactions or $100,000 in in-state sales;
  • Vermont (July 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Washington (Oct. 1, 2018), 200 transactions or $100,000 in in-state sales;
  • Wyoming (Oct. 1, 2018), 200 transactions or $100,000 in in-state sales.

By: Liz Farmer of Governing

A decade after the worst financial crisis in modern American history, two separate analyses of government finances have found that most states are better prepared to weather the next recession.

S&P Global Ratings and Moody’s Analytics have concluded that a majority of states have either adequate funds or almost enough to make it through the next recession without the massive layoffs and draconian cuts governments had to resort to following the 2008 global financial crisis.

But both firms also discovered a disturbing trend: A subset of states have continued to struggle and remain worse-off than they were a decade ago. “All else equal, this is going to result in a faster recovery [compared with 2008] among the states that are most prepared,” says Dan White, a director at Moody’s Analytics. “What’s troubling, though, is we’re seeing an increasing gap between the have and have-nots.”

S&P and Moody's stress-tested state budgets in their analyses. The idea, which was borrowed from the U.S. Federal Reserve, is to essentially throw different economic scenarios at a state budget to see how revenues would be impacted. Analysts found that states with a progressive income tax structure or states that are dependent on a volatile revenue source, such as oil and gas, tend to have more wild revenue swings in the event of a fiscal shock.

A total of 20 states have enough in reserves to get through a downturn comfortably, according to S&P. Moody’s found that 23 states are well-positioned when including other funds available to buffer the budget. That’s up from the 16 states Moody’s found last year when it issued its first stress-test analysis. Both analyses found that roughly a dozen states almost have enough in reserves to weather a moderate downturn.

But both analyses noted that an alarming number of states are still unprepared to get through even a moderate downturn without resorting to cuts. Moody’s found 17 states are in that category, up from 15 states last year. For S&P, 18 states have less than 70 percent of the reserves they need to absorb a fiscal shock.

This gap between prepared and ill-prepared governments holds true for cities as well. PNC Capital Markets analyst Tom Kozlik has previously noted that as much as 20 percent of state and local governments have seen their underlying credit quality decline -- some significantly so. Meanwhile, a Brookings Institution report released this summer notes that populous cities with a higher demand for services are more likely to have a harder time quickly adjusting to the budget pressures created by a recession.

On the state level, S&P Analyst Gabriel Petek says tax and income trends have conspired to create a more volatile revenue environment over the past decade as states have become more reliant on income tax revenue. That means that in the event of even a moderate recession, state budget shortfalls could be higher in some places than during the 2008 crisis.

Some of the least prepared governments -- namely, Illinois, Louisiana, New Jersey and Pennsylvania -- have repeatedly struggled to balance budgets, even as the economy has recovered. But even among these states, some will be hit worse than others, says Moody's White.

For example, Pennsylvania has a flat income tax, which means its revenue is less volatile and therefore is predicted to see no more than a 7 percent drop in revenue. New Jersey, on the other hand, "has a much more progressive income tax so its fiscal shock [could be] nearly 13 percent,” White says. “They have a much larger target to hit than Pennsylvania does.”

On the plus side, both firms note that governments have time to get ready. Economic forecasts predict the economy will continue to grow or be stable over the next year.

In other public finance news:

Will Congress Regulate States' Online Sales Taxes?

Three months after states successfully argued before the U.S. Supreme Court for the right to collect sales taxes for all online purchases made by their residents, Congress is getting involved.

A bill introduced this month includes an exemption for businesses that generate less than $10 million in annual U.S. e-commerce sales. It also prevents states from collecting sales taxes before Jan. 1, even though many states have already started collecting taxes or are scheduled to start in October.

The National Conference of State Legislatures (NCSL) and others argue that sales tax implementation should be left to the states. "Congress’ proposal," NCSL said in a statement this week, “would hinder state implementation efforts, preempt state authority, and create more problems than solutions.”

But others are concerned about the administrative burden to small businesses and online mom and pops. Indeed, some states have complex taxing structures, making implementation complicated.

The bill’s sponsor, Rep. Jim Sensenbrenner, a Wisconsin Republican, said in a statement that the bipartisan legislation “reins in the taxation free-for-all” created by the Supreme Court. “Online sellers need clarity and stability in the sales tax arena,” he said. “Our bill will protect small businesses and internet entrepreneurs from excessive regulatory burdens.”

Do Soda Taxes Work?

This question has hovered over the still-burgeoning practice of taxing sugary drinks to discourage consumption. Now, new research on Philadelphia’s soda tax by Mathematica Policy Research, has shed some light on the answer.

It found that after the soda tax went into effect more than a year ago, residents' buying habits shifted. Instead of buying taxed beverages in the city, residents bought more taxed beverages outside of it.

In fact, the percentage of Philadelphians reporting that their usual source of beverage purchases is outside the city increased by 17 percentage points, to roughly 33 percent. The full research was published this week as part of a National Bureau of Economic Research working paper.

The findings may provide fuel for those who have opposed the tax and claim that it will only hurt Philadelphia businesses.

By: Landon Wheeler of Legal Gambling

Congress is set to take a look at whether sports betting guidelines need to be implemented at the federal level as more states move towards legalized sports betting. A House Judiciary subcommittee has set up a hearing for September 27 which will be called “An Examination Of Sports Betting In America”. The hearing will be held in Washington, D.C.

The landscape of sports betting in the United States will be reviewed by the Subcommittee on Crime, Terrorism, Homeland Security and Investigation. Since the U.S. Supreme Court struck down PASPA 1992 in May, multiple states such as Delaware, Mississippi, New Jersey and West Virginia have started accepting sports bets while Pennsylvania and Rhode Island are also set to join the party.

Rep. Jim Sensenbrenner (R-Wis) said that his subcommittee will examine the implications of the court’s May ruling and discuss how it affects integrity in sports and what kind of improper or illegal activities could occur as a result of the decision. He explained that the subcommittee wants to figure out whether a federal framework is required to help guide gambling policies in individual states.

SOME SPORTS LEAGUES SHOW SUPPORT

Senate Minority Leader Chuck Schumer collaborated with some sports leagues and proposed sports betting guidelines about a month ago.

The NBA, PGA and MLB released a joint statement saying that nationwide standards to protect the integrity of sports are needed. The leagues are in favour of Schumer’s proposal and have asked that it be adopted by Congress.

STATES MOVING FAST TO LEGALIZE SPORTS BETTING

In August, Sen. Orrin Hatch (R-Utah) said that he planned to introduce sports betting legislation but no such bill has materialized. New Jersey Rep. Frank Pallone authored another federal sports betting bill but that has been put on hold. In the meantime, states are rushing to legalize sports betting.

On Tuesday, the District of Columbia put forward “The Sports Wagering Lottery Amendment Act of 2018” with the aim of legalizing sports betting in D.C. Over a dozen other states have also recently put sports betting bills forward.

New Jersey’s sportsbooks have already taken over $152 million in bets since mid-June. The American Gaming Association (AGA) said that about $150 billion is bet on sports in the United States with the majority of those bets being placed illegally.

In a statement, Sara Slane, assistant VP for the AGA said

Legal, regulated sports betting will enable increased transparency and enhance protections for consumers and bet and game integrity. We look forward to discussing the U.S. gaming industry's core principles for legalized sports betting with the Judiciary Committee at next week's hearing