I.  Introduction

States have long faced issues related to collecting sales and use tax when the seller lives in another state. Initially, disputed transactions involved purchases from mail-order catalogs and telephone orders, but with the advent and explosion of the World Wide Web, states now face a tremendous struggle in the regulation of sales tax collection on interstate internet purchases.

Today, fierce debates between internet retailers, states, and consumers regarding sales taxes on internet purchases are commonplace, yet the key issues remain unresolved. Retailers purport to be exempt from state sales tax requirements when they do not have a physical presence in the state in which their customers reside; states argue sales taxes are due regardless of physical presence; and consumers just want to find the best deal when making purchases, which often means they seek out ways to avoid paying sales taxes altogether.

As a result of fast-moving technological advances and slow-moving legislative actions, a substantial gap has developed in nearly every state between sales tax revenue due and collected. A study from the University of Tennessee estimated that between 2007 and 2012, states will sustain over $52 billion in losses from uncollected taxes on e-commerce sales.¹ In addition to enlarging state budget shortfalls, untaxed interstate sales create an unfair advantage to online sellers who are relieved from the onerous sales tax collection duties imposed on in-state and traditional brick-and-mortar sellers. Thus, online sellers can offer discounts on products purchased from out-of-state residents while still earning higher profits than their in-state competitors.

Two significant constitutional hurdles restrict state regulation of interstate sales taxation: the Commerce Clause and the Due Process Clause, with the former causing the majority of current problems. This article focuses primarily on resolving the Commerce Clause concerns and attempts to reconcile the interests of sellers, consumers, and states. It then proposes the adoption of a bill that was recently introduced in the House of Representatives: the Main Street Fairness Act.²

II.  Background

A.  The Mechanics of Internet Sales Taxation

A basic understanding of common Internet sales taxation is needed to grasp the ideas discussed in this article. As a general rule, purchasers of merchandise must pay a transaction tax to the state in which they reside, provided that state imposes a sales or use tax.³ When the retailer collects the tax on behalf of the consumer and remits it to the state, it is called a sales tax.When a retailer fails to collect a sales tax, the consumer is obligated to report her purchase to the state and pay an equivalent use tax. The process is simple when the seller is in the same state as the purchaser: the seller collects taxes on local sales and remits them to the state. The more complicated and increasingly more common scenario is when the seller operates from another state; this situation has been the topic of numerous cases, statutes, opinion columns, Internet blogs, and scholarly articles, including this one.

Although state taxation of internet sales is a modern issue, courts have long debated whether the Constitution’s Commerce Clause limits the ability of a state to apply its sales and use tax provisions to out-of-state retailers.⁴ This Part describes the most significant cases.

B.  National Bellas Hess, Inc. v. Department of Revenue of Illinois

In 1967, the Supreme Court considered whether a state could require a mail order company to collect and remit sales taxes on sales to residents of that state when that company had no physical presence in the state. In National Bellas Hess v. Department of Revenue of Illinois,⁵ the taxpayer was a mail order company incorporated in Delaware with its principal place of business in Missouri. It was licensed to do business only in those states. The taxpayer maintained no office or warehouse in Illinois, had no employees, agents, or salespeople there, and conducted no significant advertising there. Moreover, all contacts the company had with the residents of the state were through the mail or a common carrier. Illinois attempted to require the taxpayer to collect and remit sales and use taxes from Illinois residents who purchased the company’s goods by mail order.

The Court held that the Commerce Clause requires “some definite link, some minimum connection, between a state and the person, property, or transaction it seeks to tax.” Mail order transactions alone do not create that minimum connection. The Court reasoned “[t]he very purpose of the Commerce Clause was to ensure a national economy free from . . . unjustifiable local entanglements. Under the Constitution, this is a domain where Congress alone has the power of regulation and control.”⁶

C. Quill Corp. v. North Dakota

Twenty-five years after National Bellas Hess, the Court affirmed in part its prior decision when it faced a similar set of facts in Quill Corp. v. North Dakota.⁷ In Quill, North Dakota attempted to require the taxpayer, a Delaware corporation with no significant tangible property or employees in North Dakota, to collect and remit use taxes from sales to North Dakota customers. The taxpayer solicited business through catalogs and flyers and delivered all its merchandise by mail or common carrier from out-of-state locations. The State argued that its statute subjecting every retailer that solicits business in the state to the tax was constitutional when the retailer had “engage[d] in regular or systematic solicitation of a consumer market in th[e] state.”

The Court disagreed, recognizing two constitutional barriers to a state’s ability to force out-of-state retailers to collect and remit sales taxes: the Due Process Clause and the Commerce Clause. The Court distinguished the Due Process Clause from the Commerce Clause, explaining:

Although the “two claims are closely related,” the Clauses pose distinct limits on the taxing powers of the States. Accordingly, while a State may, consistent with the Due Process Clause, have the authority to tax a particular taxpayer, imposition of the tax may nonetheless violate the Commerce Clause. The two constitutional requirements differ fundamentally, in several ways. . . . [W]hile Congress has plenary power to regulate commerce among the States and thus may authorize state actions that burden interstate commerce, it does not similarly have the power to authorize violations of the Due Process Clause.⁸

The Court concluded that because Quill had purposefully directed its activities at North Dakota, it established minimum contacts with the State, and thus the Due Process Clause did not prohibit the State from imposing its use tax against Quill. 

The Court next considered whether the state statute ran afoul of the Commerce Clause. It recognized Congress’ constitutional authority to “regulate Commerce with foreign Nations, and among the several States,”⁹ but also recognized that the “dormant” Commerce Clause¹⁰ reserves to Congress the exclusive power to regulate interstate commerce even when it has not spoken directly on a subject. The dormant Commerce Clause requires that the retailer have a “substantial nexus” with the state before the state can force the retailer to collect and remit sales taxes, which often translates into a bright line physical presence test.

The Court held that North Dakota did not have the power to impose sales taxes on Quill because Quill had no physical presence in the state. It also found that the state’s taxation would unduly burden interstate commerce, noting that “similar obligations might be imposed by the nation’s 6,000-plus taxing jurisdictions,” thus vastly increasing the complexity of sales tax compliance for interstate retailers.

D. Streamlined Sales and Use Tax Agreement

In the shadow of the Quill decision, a new and far-reaching mode of commerce arose: the World Wide Web. Many retailers no longer needed to send catalogs to solicit sales. Instead, they could simply set up websites, make them apparent to search engines, and wait for customers to come to them. The following chart illustrates the historic growth of the Internet:

The monumental growth in online sales has contributed to the two major problems currently associated with the taxation of remote sales: administrative burdens to sellers and lost revenues to states from general noncompliance. In 1999, state and local governments from twenty-six states responded to these by banding together and implementing a new sales tax system. The group’s goal was to create and implement a method to unify and simplify the collection and remittance of sales taxes across the country, an effort that culminated in the Streamlined Sales Tax Project.¹¹

The Project works through two steps. First, states voluntarily join the Streamlined Sales Tax Agreement by adopting its provisions as state law and conforming to the tax administration procedures set for by the Agreement. Second, interstate retailers voluntarily register with the Project’s online system. Sellers only register once and are thenceforth obligated to collect and remit sales taxes to member states when they sell products to residents of those states.

The Agreement reduces the administrative burden of tax compliance by focusing on two main goals: uniformity and simplification. The Agreement promotes uniformity in multistate sales tax collection at five levels: terminology, tax bases, registration, sourcing, and reporting. It simplifies sales tax collection and reporting by focusing on four areas: limited tax rates, seller liability for incorrectly reported exemptions, simplified tax forms, and electronic tax remittances. Additionally, it provides for sales tax software that, if used, would provide immunity to users from audits and corresponding liability.

A. Congressional Efforts to Regulate Internet Sales Taxes

Although states have been very active recently in attempting to regulate sales tax collection for out-of-state retailers, the power to regulate taxation of interstate commerce ultimately lies in Congress’s hands, as established by the Commerce Clause and reiterated in Quill. Since Quill, Congress has attempted several times to pass legislation that would provide federal authorization for states to mandate sales tax collection from out-of-state retailers, thus allowing states to bypass the substantial nexus requirement imposed by Quill.¹² However, each bill that has been proposed has expired without being voted on by the House or Senate.

B. Recent State Efforts to Bypass Quill’s Substantial Nexus Requirement

Dissatisfied with Congressional efforts (or lack thereof) to increase cooperation with sales tax laws, states have attempted in various ways to establish a substantial nexus between online retailers and their state and thereby satisfy the requirements of the Commerce Clause.

a.  Borders Online v. State Board of Equalization

In 2005, the California Court of Appeals held in Borders Online v. State Board of Equalization that Borders’ retail stores in the state acted as authorized representatives of the associated online store when those stores accepted refunds of personal property sold by the internet retailer, thus establishing a nexus sufficient for the imposition of sales and use taxes under the Commerce Clause.¹³

After Borders, remote sellers in California sought clarification on whether their particular fact situations produced sufficient nexus to subject them to California state and local taxation. Courts look at various factors to determine the level of nexus,¹⁴ and consider these factors concurrently. An increasingly relevant factor that courts have examined is the presence of a company’s affiliates in a state, or “attributional nexus.” Courts have long looked at attributional nexus as a way to satisfy the Commerce Clause requirements, although the issue has never been directly addressed by the United States Supreme Court.

b.  Amazon.com, LLC v. New York State Department of Taxation and Finance

Most recently, a New York trial court, later affirmed by the New York Appellate Division, weighed in on attributional nexus in Amazon.com, LLC v. New York State Department of Taxation and Finance.¹⁵ In 2008, New York attempted to curtail lost revenues from internet sales by amending the definition of “vendor” in its tax law, thus requiring each of Amazon’s Associates to collect sales taxes. Amazon then brought suit claiming that the Provision violated the Commerce Clause by imposing tax collection obligations on out-of-state entities that had no substantial nexus with the state. The court dismissed Amazon’s complaint for failure to state a cause of action, holding that the statute is not unconstitutional facially or as-applied. The court took a broad view of the substantial nexus requirement when it held that Amazon had created a substantial nexus with the State, even though Amazon had no offices, property, employees, or agents in the state. The court noted that physical presence “need not be substantial;” however, there must be “more than a slight presence.”

SinceAmazon, many New York retailers have terminated associations with in-state retailers and local affiliates to avoid being subject to sales tax collection. One website purports to list sellers that have removed New York affiliates after the passage of New York’s legislation, naming almost sixty remote sellers.¹⁶ The list includes some large companies such as Overstock, KB Toys, ShopNBC, CafePress, and Fingerhut. As a result, the statute may have actually hurt local retailers, the very group it was trying to protect by leveling the sales tax playing field.

c.  The Bordersand AmazonFallout

The Amazon ruling has influenced other states to pass similar legislation in attempts to collect their own “Amazon tax.” For instance, in 2009, Rhode Island passed a statute that requires online merchants generating more than $5,000 in sales through in-state affiliates to register and collect sales tax on all its taxable sales in Rhode Island.¹⁷ Like the New York law, Rhode Island’s statute requires that the seller enter an agreement with a Rhode Island resident before the seller would be subject to sales tax collection.

Following the lead of New York and Rhode Island, North Carolina passed a statute¹⁸ enacting its own Amazon tax with a $10,000 floor, explaining that the new law codifies the United States Supreme Court’s 1960 decision in Scripto v. Carson that a state “may require tax collection by a remote retailer that had contracts with ten independent contractors in the state who solicited orders for products on its own behalf.”¹⁹ North Carolina simultaneously modernized its previous terminology by replacing “mail order” with “remote sales.”²⁰ Similar statutes were introduced in eleven other states.²¹

Colorado took its sales tax collection efforts a step further. In addition to enacting its own “Amazon tax,” Colorado’s H.B. 1193 (2010) would require sellers that do not collect sales taxes to send customers that purchase products online annual statements listing total purchases.²² Retailers would also send a copy of all purchases to Colorado’s Department of Revenue so that residents may be held accountable for unpaid use taxes.²³ The bill would authorize Colorado’s Executive Director of the Department of Revenue to issue a subpoena to an out-of-state retailer if that retailer refuses to voluntarily furnish that information. However, this statute is the subject of a recent lawsuit brought by the Direct Marketing Association. A federal court for the District of Colorado recently granted DMA’s motion for preliminary injunction against Colorado, holding that its statute “discriminates patently against interstate commerce” and imposes undue burdens on retailers.²⁴

Oklahoma took a different approach to regulating sales tax collection from out-of-state sellers.²⁵ The Oklahoma law obligates certain remote sellers to post on their websites, catalogs, and invoices notice of consumers’ obligations to pay Oklahoma use tax on electronic and mail order purchases of tangible personal property.²⁶ Oklahoma’s law has been criticized as superfluous in application to internet and mail order sellers that have physical presence in the State because current Oklahoma use tax statutes already impose the obligation on those sellers to collect use taxes. Furthermore, the law is criticized as unconstitutional when applied to out-of-state sellers that have no physical presence in the State, because Quill’s interpretation of the Commerce Clause would prohibit Oklahoma from enforcing tax collection responsibilities on a seller with no physical presence in the state.

d.    The Case for a Federal Solution

A uniform federal solution is superior to progressive state-by-state attempts to collect sales and use taxes for three reasons. First, states are tiptoeing on the edge of a river of constitutionally-protected consumer privacy matters. Second, strict enforcement of use tax laws at an individual level is hardly tenable given the historic lack of enforcement and the resulting lack of personal accountability. The proposed solutions impose real burdens on people and will discourage online purchases. Can you recall everything you have purchased online in the last year? In the last five years? You may have to if you are in a progressive sales tax collection state. It is much simpler and more intuitive for consumers to pay the tax up front as one swift transaction than to log their purchases, store the information, and file a use tax return with their payment at some later date. The increased hassles of recording each purchase could drive people back into brick-and-mortar stores, nullifying the efforts of Amazon and other remote sellers. For this reason, remote sellers should embrace the Main Street Fairness Act as a means to create certainty and consistency in the marketplace.

Finally, the trending methods of sales and use tax enforcement are completely inefficient. This is a situation in which it makes sense to take collective federal action rather than pursue state collection efforts at the individual taxpayer level. States would be forced to allocate substantial resources toward collection efforts while receiving no greater benefit than if the tax had been collected at the time of sale. With the Main Street Fairness Act, states would incur virtually no additional costs of expansion and would continue to use their existing collection methods. States are already entitled to collect these taxes whether in the form of sales or use taxes; why not utilize retailers with software and systems already in place?

The Center on Budget and Policy Priorities has argued that states’ implementation of the “Amazon law” could be an effective means to require sales tax collection from internet sellers that use affiliate programs.²⁷ However, the Center observed, Amazon laws are only a partial solution to the broader sales tax problem. Not every internet retailer operates an affiliate program, so the Amazon law does nothing to spur collection efforts from the numerous vendors who advertise by other means. The Center concluded that a comprehensive solution will require a federal law empowering states and localities that have streamlined their sales tax collection efforts to require all large remote sellers to collect sales taxes. This would allow states to force collection on remote sellers regardless of whether the sellers have a physical presence in their customers’ states. Such a federal grant of commerce power is the precise objective of the Main Street Fairness Act of 2010.

III.  Main Street Fairness Act

The Main Street Fairness Act, sponsored by former Representative Bill Delahunt (D-MA), seeks to “promote simplification and fairness in the administration and collection of sales and use taxes.”²⁸ It would do so by allowing states to force “remote sellers” (companies that sell products online, by mail order catalogs, cable TV shopping, telephone, etc.) to collect sales and use taxes from customers and remit them to states. States acting alone do not have the authority to require a seller with no physical presence in the state to collect taxes on sales to that state’s residents. However, Congress affirmatively possesses the authority to regulate commerce under the Commerce Clause of the Constitution of the United States and Congress may authorize state actions that burden interstate commerce. The Main Street Fairness Act would grant states explicit authority to burden interstate commerce by allowing states to mandate collection and remittance of taxes on remote sales to their residents.

Why should Congress give the Main Street Fairness Act a second glance when a form of the current bill has essentially been rejected every other year for the last seven years? This section will focus on three ways the Main Street Fairness Act would benefit interstate commerce: (1) it would provide states a tool to enforce active yet frequently disobeyed laws regarding sales and use tax reporting and payment; (2) it would level the playing field between Main Street and “e-street;” and (3) it would help to close the enormous budget gap that is growing daily as a result of the disparity between taxes due and taxes actually collected.

A. Enforce Current Laws

The Main Street Fairness Act would grant federal authority to states, thus allowing states to enforce sales and use tax laws that are currently in place but are often not obeyed. Sales or use taxes are legally due on internet sales if the item is otherwise taxable under state law. Generally, retailers collect taxes from customers on behalf of states for convenience. However, when a customer purchases a taxable item and the retailer fails to collect a sales tax, that customer is obligated to pay a use tax and file a use tax return with the state.

People often do not pay use taxes on internet purchases for two reasons. First and most commonly, the average consumer is unaware that a tax is due when she purchases a product from an online retailer such as Amazon or Overstock. In other cases, the consumer may be aware that a tax is due but fails to pay sales or use taxes because he believes the law is not enforced and he will not be caught. This is the more dangerous scenario because in knowingly failing to pay a tax that is legally due, the consumer crosses the line of intentional disregard and is more likely to violate that law again.

In an effort to both inform residents of their obligation to pay use taxes and to actually collect those taxes, many states have started to include a line on their income tax returns where taxpayers are supposed to calculate and declare unpaid taxes. For example, Michigan includes the following line on its individual income tax return: “Use Tax: Use tax due on internet, mail order or other out-of-state purchases,” then references a separate worksheet that is provided to help the taxpayer calculate use tax due.²⁹

Some states have begun to enforce use tax compliance on an individual level, sending tax bills to consumers that had made taxable purchases but failed to pay a tax. Nebraska recently cracked down on a local March of Dimes chapter after the chapter purchased 4,000 t-shirts from an online vendor in Florida. Nebraska tracked purchases for the preceding five years and could collect an estimated $215,000 from the charity, or approximately thirteen percent of the donations. Other states are less stringent, allowing a de minimis exemption for individuals.³⁰

Some states have attempted to enforce sales and use tax compliance by leveraging customers to act as whistleblowers when companies knowingly fail to collect those taxes.³¹ Under these false claim statutes, individual consumers may bring suits on behalf of the state against parties that knowingly violated sales tax laws. If successful, the whistleblower would be entitled to a portion of the state taxes collected.

While states have had some success tackling the noncompliance issue on their own through enacting Amazon laws or similar statutes, the federal government is the sole body that is constitutionally charged with regulating interstate commerce and therefore should provide states with a tool to help them enforce their laws and uniformly tax interstate commerce. If passed, the Main Street Fairness Act could effectively serve as that tool.

B.  Level the Playing Field

Perhaps the strongest policy reason for implementing a federal law to delegate Commerce power to states is the inherent unfairness that results from forcing some companies to charge their customers sales taxes while others do not have to charge any sales tax.

Two groups are hurt by current disparities in sales tax enforcement: local retailers and large companies with physical presence in many states. Small local retailers (mom and pop shops) are at a distinct disadvantage when their online competitors do not have to charge customers sales tax. Recent studies indicate that many consumers are beginning to follow a “just looking” trend whereby they test products in local stores by seeing, touching, and feeling them, then rush home to order the same products online where they can avoid paying sales taxes.³² According to one consumer behavior report, seventy-five percent of online consumers sought to purchase from merchants that did not charge sales tax and offered free shipping.³³ The savings are even greater when buying in bulk, thus enticing large organizations to shift their purchasing patterns away from small local retailers to reduce costs in a bad economy.

Ironically, opponents of internet sales tax regulation argue that enforcing sales tax laws would do greater harm than good to small retailers.³⁴ Such opponents reason that the last decade has provided an unprecedented opportunity for individuals to start small companies that leverage the Internet to grow quickly, thus spurring the economy and creating jobs.Less than one month after the Main Street Fairness Act was introduced, a group of U.S. Representatives introduced the “Supporting the Preservation of Internet Entrepreneurs and Small Businesses” resolution.³⁵ The Preservation bill focuses on avoiding “any legislation that would grant State governments the authority to impose any new burdensome or unfair tax collecting requirements on small online businesses and entrepreneurs.” Representative Dan Lungren, sponsor of the Preservation bill, commented:

The most effective thing we can do to help our economy recover is to remove the roadblocks standing in the way of our nation’s job creators. At a time when we are trying to foster a sustained economic recovery, it doesn’t make sense to saddle entrepreneurs with tax requirements that stifle growth. The possibility of new taxes being levied on online retailers will have a negative impact on the online marketplace. We should send a clear message that Congress should not burden small businesses with unfair tax schemes.

The Preservation bill is constructed on two false premises. First, it presupposes that federal legislation granting states Congressional authority to collect sales taxes would impose a new tax. As discussed in the previous section of this article, sales and use taxes are already due in nearly every state on online purchases. A federal grant of authority would therefore not impose a new tax, but loosen the handcuffs Quill placed on states to enforce their own laws. Second, the Preservation bill is aimed at protecting small businesses and entrepreneurs. While noble in its purpose, the Preservation bill is simply unnecessary; the Main Street Fairness Act’s small seller exception would exempt from sales tax collection the very businesses the Preservation bill aspires to protect.

Another group that is damaged by the current system is large online retailers that have a physical presence in many states, such as Wal-Mart or Target. Most, if not all, online sales from these stores are subject to sales taxes because they have a physical presence in nearly every state. These companies put appropriate resources into ensuring that the taxes are properly collected and remitted. The inconsistency arises when comparing a company like Wal-Mart to a company like Amazon. Both are large companies that sell products to residents in every U.S. state and territory. However, Wal-Mart has stores in every state, while Amazon only has physical presence in a handful of states, thus creating a real disparity that needs to be addressed.

C.  Bridge the Budget Gap

It is no secret that states are struggling to find revenue sources while tax collections are down nationwide. Advocates of internet sales taxation correctly promote the Main Street Fairness Act as a way for states to raise revenue without imposing additional taxes. While allowing states to enforce sales tax collection on all of its residents’ purchases would not solve the current budget crisis, it would allow states to take a healthy step in the right direction.

IV,  Conclusion

Regardless of which political party is in the majority, the Main Street Fairness Act should be given consideration as a viable solution to the problems discussed above. Its passage would comport with the constitutional grant of authority over interstate commerce to Congress, while allowing states the freedom to choose whether to voluntarily join the Agreement. This system is ideal because states can preserve their independence by joining or leaving the Agreement at any time, while providing substantial benefits to out-of-state retailers by simplifying and unifying their reporting requirements. The Main Street Fairness Act is the bandwagon heading toward uniformity and fairness in sales tax collection. States just need to jump on.