The Independent View: SD Decision Moves Online Sales Tax Issue Closer to Supreme Court

South Dakota’s Supreme Court Affirms a Lower Court Ruling against a State Law Designed to Challenge the prevailing Law that allows many Online Retailers to Avoid Collecting Sales Tax.

Since the Birth of E-Commerce, Online Retailers have been Shielded from the Requirement to Collect Sales Tax from Consumers who live in those States where the Retailer does not have a Physical Presence: Office, Sales Representative, Physical Store, or Warehouse. The U.S. Supreme Court likely will soon have the chance to change that.

The Question of whether Out-of-State Online Retailers can be Required to Collect Sales Tax moved a big step closer to the Nation’s Highest Court when the South Dakota Supreme Court Upheld a Lower Court’s Decision barring Enforcement of a 2016 State Law that requires Larger E-Retailers to Collect Sales Tax from South Dakota Residents and Remit them to the State.

In passing the Law last year, South Dakota Lawmakers made clear they wanted to give the U.S. Supreme Court an opportunity to Reconsider its 1992 Decision in a Case generally known as Quill Corp. v. North Dakota, which I took part in representing another Mail-Order company. The Court in that Case ruled that Quill, a Catalog Retailer, did not have to Collect Sales Tax in North Dakota where it had No Physical Presence. Online Retailers have used that Decision to argue that they need not Collect Sales Tax in States where they have No Physical locations, allowing them to Charge Lower overall Prices than Local Bricks-and-Mortar Retailers that must Collect Sales Tax. This Ruling gives the State what it wanted all along, a Case they could Appeal to the U.S. Supreme Court.

South Dakota Attorney General Marty Jackley Congratulated the Court for moving quickly on the Case and left little doubt that the State would pursue an Appeal to the U.S. Supreme Court, giving it an opportunity to Overturn the 1992 Quill Decision. “The purpose of South Dakota’s current litigation is to give the United States Supreme Court an opportunity to reconsider Quill in light of the extraordinary growth of the internet and the exponential technological advances that have been made in the last quarter century,” Jackley said in a Statement following the Ruling. “If the U.S. Supreme Court ultimately strikes down Quill, retail sales tax obligation can be applied fairly to both internet and main street businesses.” A Spokeswoman for Mackley, however, says “no decision has been made yet” about an Appeal.

NetChoice, an Advocate for E-Commerce Companies, sees this Case headed for the U.S. Supreme Court. “This ruling gives the state what it wanted all along—a case they could appeal to the U.S. Supreme Court,” Steve DelBianco, Executive Director of NetChoice, said in a Statement. “If the high court takes this case, we will be ready to show that the perspective of a few large online retail defendants is only a small part of the story. In fact, many thousands of smaller businesses would bear disproportionate burdens and costs if they are forced to become tax collectors for 12,000 jurisdictions across 46 states.”

I made that case in 1992, offering to Collect the Sales Tax and submitting Monthly State Sales Tax Reports, with a 5% Management Fee to each State. Today, this process is already available with 21st Century software and Cloud processes.

The South Dakota Law only Requires Sales Tax Collection from relatively Large Online Retailers, those that Sell at least $100,000 annually to South Dakota Residents or have at least 200 Transactions a Year with Residents of the State. Shortly after the Law took effect in March 2016, South Dakota Sued Four Web-Only Retailers that had not Registered to Collect Sales Tax in the State: Wayfair Inc., No. 16 in the Internet Retailer Top 1000 Ranking of North America’s Leading Online Retailers, Newegg Inc. (No. 21), Overstock.com Inc. (No. 30), and Systemax Inc., my former Employer from 1985-1996, a Seller of Computers and Technology Products to Businesses, that is No. 110 in Internet Retailer’s B2B E-Commerce 300 Ranking of Top Business-to-Business Online Sellers. Systemax subsequently Registered to Collect Sales Tax and was dropped from the Suit.

Wayfair, Newegg, and Overstock Sued in State Court and Won a Motion for Summary Judgement on the Basis that the South Dakota Law Contradicted the U.S. Supreme Court’s Decision in the Quill Case. In an unusual move, the State agreed with the Online Retailers’ Position and made clear that it wanted to move the Case forward Quickly so that it could ultimately Ask the U.S. Supreme Court to Overturn Quill.

Bricks-and-Mortar Retailers that long have called for a Federal Law that would require Online Retailers to Collect Sales Tax may be heartened by indications that at least Two Members of the U.S. Supreme Court may Favor a Reconsideration of the High Court’s Decision in 1992, before Consumers were Shopping Online in any Numbers.

Justice Anthony Kennedy noted in a 2015 Decision that it might be time to Review the Quill Decision “in view of the dramatic technological and social changes that [have] taken place in our increasingly interconnected economy.” The South Dakota Supreme Court Decision also noted that, before Joining the U.S. Supreme Court this year, Justice Neil Gorsuch had expressed a Similar Opinion.

Congress has for several years considered various Bills that would Require All or Some Online Retailers to Collect Sales Tax in States where they have No Physical Presence, but no Bill has made it through both Houses. Frustrated with the lack of Congressional Action, several States besides South Dakota have Passed Bills that explicitly challenged the Quill Ruling in hopes of bringing the Question of Online Sales Tax back to the U.S. Supreme Court.