September 14, 2018
By: Naomi Jagoda of The Hill
A bipartisan group of lawmakers rolled out legislation on Friday that's designed to provide certainty to businesses following the Supreme Court's online sales tax ruling in June.
The bill would provide a framework for when states can require out-of-state online retailers to collect their sales taxes.
"Online sellers need clarity and stability in the sales tax arena," said Rep. Jim Sensenbrenner (R-Wis.), one of the bill's authors. "Our bill will protect small businesses and internet entrepreneurs from excessive regulatory burdens."
In its June opinion in South Dakota v. Wayfair, the Supreme Court overturned a 1992 ruling that restricted states' ability to compel out-of-state internet business to collect their sales taxes.
The court praised features of South Dakota's law requiring certain online retailers to collect its sales taxes, but the court didn't provide specific criteria for what would make a state's online sales tax law constitutional.
Critics of the Supreme Court's ruling are concerned that it will be burdensome for small online retailers, since there are thousands of state and local tax jurisdictions across the country.
Sensenbrenner's bill is aimed at addressing those concerns. It would prevent states from requiring remote sellers to collect sales taxes on purchases made before the Supreme Court's ruling was issued. It also would only allow states to impose sales tax collection duties on remote sellers for purchases made after Jan. 1, 2019.
Additionally, the legislation would prevent states from requiring online retailers with less than $10 million in sales to collect their sales taxes until the states come up with a compact simplifying their sales-tax collection that's approved by Congress.
Sensenbrenner, Eshoo and Lofgren had participated in a friend-of-the-court brief that argued that Congress was better suited to address the online sales tax issue than the Supreme Court.
The bill was praised by the National Taxpayers Union, which has been a critic of the Wayfair ruling.
“Chaos is brewing across the country as states have scrambled to seize new tax power for themselves after the Court’s ruling in Wayfair," said Andrew Moylan, head of the group's interstate commerce initiative. "By solving some of the most vexing questions, like retroactivity, state implementation dates, and obligations for small sellers, Congressman Sensenbrenner’s bill is a great start down the long path of crafting a remote sales tax system that underscores, rather than undermines, important principles of free markets, limited government, and simplicity.”
But the National Conference of State Legislatures, which cheered the June Supreme Court decision, has blasted Sensenbrenner's proposal.
"The Sensenbrenner legislation is an unwarranted intrusion on state authority which if enacted would continue the competitive advantage online sellers enjoy over Main Street sellers," the group said.
Joseph Bishop-Henchman — executive vice president of the Tax Foundation, which was favorable about the Supreme Court ruling — said he thinks the bill is "a good basis for further discussion.” But he said that states don't have a lot of confidence that Congress has the ability to pass compacts like those envisioned in the legislation, and he said that the bill should recognize the Streamlined Sales and Use Tax Agreement that has been adopted by more than 20 states.