Heidi Strikes Back

It took more than two decades, but Sen. Mary Kathryn “Heidi” Heitkamp got a long-awaited chance to have the last word against the Supreme Court. That’s no small accomplishment for a freshman Democrat from North Dakota.

Heitkamp co-sponsored and helped pass the Marketplace Fairness Act of 2013, otherwise known as the Internet sales tax bill. If the legislation makes it through the House of Representatives – a doubtful but not inconceivable prospect – it will effectively reverse the outcome of the pivotal 1992 Supreme Court tax case known in short as Quill Corp. v. North Dakota, and in full as Quill Corporation, Petitioner v. North Dakota by and through its Tax Commissioner, Heidi Heitkamp.

It was only a quirk of political fate that Heitkamp arrived in the Senate just in time to push through the legislation that would undo a legal setback that has frustrated state tax collectors for the past two decades. But the bill’s progress was no accident; it is the result of a massive, years-long effort by cash-hungry states, local stores struggling against mounting online competition, and – most recently – giant web-based retailers that see a chance to gain a competitive edge against smaller upstarts.

Quill established that only retailers with a physical presence in a given state must collect sales tax for that state. When residents of states with sales taxes make purchases from out-of-state retailers, they are required to send in their tax payments directly to their home states, in the form of “use tax.” But hardly anyone does that. As a result, states lose an estimated $12 billion a year.

Brick-and-mortar stores complain that they are at an unfair disadvantage. Since they must include sales tax in their prices, they can be easily undercut by online competitors. As smartphones make online purchasing even easier, local stores have considerable cause to fear that they will be reduced to acting as showrooms for their competitors.

Supporters of the Senate bill claim it would help states collect their existing taxes and level the playing field for brick-and-mortar and online businesses. Under the bill, any retailer that does not qualify for a narrow “small seller” exemption could be forced to collect tax for any state that meets a basic set of requirements.

The bill attempts to resolve a conflict that has been simmering since the Supreme Court’s 1992 ruling in Quill. In that case, North Dakota sought to force Quill Corporation, an office supply company, to collect tax on sales to North Dakota residents. Quill had no offices or warehouses in North Dakota, though it did solicit sales through catalogs and accepted orders via toll-free phone lines.

The Court ruled that it does not violate the due process rights of out-of-state retailers to force them to collect sales taxes for states in which they solicit business yet do not have a physical presence. This was a victory for the states, reversing a holding from a 1967 case known as National Bellas Hess.

But it was a hollow victory, because the high court went on to hold that only Congress could regulate interstate commerce by forcing interstate sales tax collection. Congress, however, could delegate that power to the states, the court further held. Thus began the 20-year battle to get Congress to do just that.

In the meantime, states have been creative about trying to conjure a physical presence through the barest wisps of local connection. I wrote about one of the biggest battles in this fight in 2009, when New York, followed by other states, attempted to claim that affiliate programs like the one popularized by Amazon were enough to constitute a physical presence.

The Senate bill would make the debate over physical presence irrelevant. However, far from simplifying matters, it would introduce a new, even more convoluted structure, forcing retailers to navigate the tax codes of states where they have no real business interests. To get permission under the bill to collect tax from out-of-state companies, states must either join the Streamlined Sales and Use Tax Agreement or implement a set of “minimum simplification requirements” outlined in the bill itself. However, even the Streamlined Sales and Use Tax Agreement has had only minimal success in harmonizing the various states’ myriad rules about what goods and services are to be taxed and how taxes are to be remitted.

Internet behemoths like Amazon have abruptly become supporters of the Senate legislation, after fighting similar efforts for years. Amazon has warehouses and other facilities in a growing number of states, requiring it to collect taxes in those locales where smaller rivals are exempt. It also has the internal resources to comply with the demands of dozens of taxing jurisdictions; smaller sellers do not. The Senate bill’s small seller exception applies only to companies with less than $1 million in annual out-of-state sales, meaning that many small businesses would still be subject to the law.

While the Senate bill would stop debates over the “physical presence” of sellers, it would introduce a whole new set of questions about the physical locations of buyers. According to the bill, the state of the buyer will be determined by “the location where the product or service sold is received by the purchaser.” That’s fine if the product is a box of pens or a packaged DVD. It’s less useful if the “product” is a subscription to Netflix’s Instant View program or the services of a tax professional who electronically files the seller’s returns in many states around the country.

Forget tax fairness. You could call this legislation the Law of Unintended Consequences. Local stores only have to worry about the tax rules in their own locale; the Senate legislation will saddle sellers in places like Muskogee, Okla., with the burden of knowing tax rules and responding to tax audits in places like Bismarck, N.D., and Augusta, Maine.

When things get messy enough, someone will start looking for new solutions. One possible avenue would be for the federal government to take over the task of collecting sales taxes across state lines, with uniform rules and procedures established by the Internal Revenue Service. Of course, once the IRS is in the business of collecting sales taxes, expect it to rake off a share for Uncle Sam, too. That’s not a prospect that will make too many consumers happy.

The Supreme Court might also step back into the fray. The Senate’s legislation was made possible because the Quill court found that turning out-of-state businesses into unwilling tax collectors is allowed under the Due Process clause. That holding predates the Internet, which made it possible to solicit multi-state sales simply by putting up a website. The Court might revisit this concept in a future case that seeks to restore the National Bellas Hess rule. I don’t think the current justices are highly inclined to do this, but a future set – one more attuned to the complexities and opportunities of online life – just might.

Of course, all of that is a long way off. It may still be years before we know where Quill Corp. v. North Dakota will take us. But in the more personal battle between out-of-state retailers, the Supreme Court and the one-time North Dakota Tax Commissioner who is now a senator, Heidi Heitkamp has finally won a round.

About Larry M. Elkin 553 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

Visit: Palisades Hudson

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