(c) 2004 West Legal Studies in Business A Division of Thomson Learning 1 U.S. Constitution has Two Parts Which Have a Bearing on State Taxation of Internet Sales 1.Art. 1, Sec 8 the right of the federal government to regulate interstate commerce 2.14th Amendment due process clause

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 2 Art. 1, Sec. 8 “to regulate interstate commerce” Based on the concept of whether the state regulation is good for the national economy Federal government has this right, but Federal government does not deny the State right to pass laws which regulate interstate commerce –As long as the law does not unduly burden interstate commerce. –That means the state can tax interstate commerce as long as the tax does not unduly burden interstate commerce.

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 3 14th Amendment due process clause Based on concept of fairness to the selling business If the seller has no connection (nexus) with the state - - no physical presence in the state, then the state cannot make the seller collect taxes for it. –The “nexus” with the state proves that the seller is using the state facilities: police, fire fighters, emergency services, roads, bridges, airports, all the infrastructure, –In return for use of the infrastructure, the state has taxing jurisdiction = authority to make it collect the states taxes on every sale

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 4 States Levy Sales taxes Use taxes

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 5 Sales tax Is levied on tangible goods bought or leased within a state that has a sales tax. Must be collected by the merchant or leasor and remitted to the state –Only if the merchant has “nexus” with the state (See below) Charged on the gross amount

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 6 Use tax Is levied on the consumer for tangible goods purchased out of state for use within the taxing state, if they paid no sales tax in the state where and when they bought it Live in one state, buy in a state with no sales tax, still have to pay a use tax to the state you live in Usually consumers do not pay this tax

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 7 Some Sales are Not Taxed Food Clothing Nontangible transactions such as services

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 8 Who taxes? 45 states have sales tax on businesses that have “nexus with the state” –5 states do not have any sales tax on or off Internet Alaska, Delaware, Montana, New Hampshire, Oregon –11 of the 45 were taxing internet access before the Moratorium may continue Connecticut, Wisconsin, Iowa, North Dakota, South Dakota, New Mexico, South Carolina, Tennessee, Texas, and Ohio Counties (parishes) and municipalities also have sales and use taxes

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 9 Mail Order: Catalog, Direct Marketing, Cable TV Sellers Do these sellers have “nexus” with the taxing state? 1967 National Bellas Hess, Inc. v. Dept. of Rev. of the State of Ill., –Facts: Mass. mail order house had no property, office, outlets, or any sales representatives in Illinois –Reasoning: no physical presence or “nexus” in the state –Judgment: Do not have to collect sales taxes for sales in Illinois because had no nexus with Illinois

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 10 Local Main Street Retail Stores Do have physical presence and “Nexus” Do have to collect sales taxes Feel this is unfair to them ( 20 billion estimated to be lost by the states in 2003)

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 11 Web Sales That Are Made on the Internet- Like Mail Order? No physical presence? Do Web sellers have to collect sales or use taxes?

(c) 2004 West Legal Studies in Business A Division of Thomson Learning Quill Corp. v. North Dakota N.D. District Court judgment: because the state had not spent any of its tax money on Quill, there was no nexus and N.D. could not require Quill to collect a use tax N.D. Supreme Court judgment: reversed and said the state could require Quill to collect a use tax from N.D. buyers –Reasoning: because the mail order business was so huge, and computers made it easier for interstate sellers to keep track of the different taxes it must collect in the different counties and states U.S. Supreme Court judgment: reversed the N.D. Supreme Court- cannot require Quill to collect a use tax

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 13 U.S. Supreme Court Due Process Clause and the Commerce Clause are both applicable to a state’s taxing power over interstate commerce. But - the two Constitutional protections are analytically distinct.

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 14 How are They Different? Congress may allow a state to burden interstate commerce under the commerce clause Congress may not allow a state to violate due process under the due process clause! Due process and the commerce clause do not have the same requirements

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 15 Due Process Requirements Have Been Met by Quill Due process does not require physical presence Due process is concerned with notice so as to provide fairness to the individual So, what it really requires for due process is not physical presence, but: –purposeful direction of the seller’s activities at the state’s residents, –A magnitude of contacts, even if not physical presence. –The tax is related to the benefits that the seller receives from the state These requirements have been met by Quill.

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 16 However, Commerce Clause requirements have Not Been Met by Quill The Commerce Clause requirement of “substantial nexus” for taxing is not the same nexus that is “minimum contacts” required for due process The Commerce Clause is not concerned with fairness to the individual, but rather with structural concerns about the effects of state regulation on the national economy

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 17 Commerce Clause The Articles of Confederation hindered and suppressed interstate commerce – framers of the Constitution wanted to fix this problem The Commerce Clause prohibits discrimination against interstate commerce.

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 18 U.S.S.Ct. Overruled the North Dakota Supreme Court Found that Quill could not be taxed, not because of due process, but because of the commerce clause: the tax nexus requirement was not met –The Commerce Clause asks whether the tax is for the good of the whole structure of the economy But the Court told Congress that they were free to overrule the Court with legislation that allowed the states to tax mail order houses because Congress is in control of the national economy

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 19 The Protection Given in Quill Created a Zone = Drew a Line The line is called the “Bright Line”around an area where an interstate vendor is free from taxation Bellas Hess created a protected zone = this line around this area is the “Bright Line” The Bright Line in Bellas was drawn around vendors “whose only contact with the customers in the taxing state was by common carrier or the U.S. mail.”

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 20 So When Is There a Sufficient Nexus for the Commerce Clause? Not mail-order A retail store in the taxing state Renting an office or a warehouse in the taxing state Holding trade shows where employees or agents take orders from customers in the taxing state Working with a server in the taxing state Maintaining inventory in the taxing state Licensing software to licensing a taxing state Hiring agents in the taxing state Falling under the Market Maintenance theory

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 21 Is Nexus Created When a Business Hires Agents in the Taxing State? Scripto, Inc., v. Carson –Independent contractor, not employee in taxing state –Court said this was enough for Commerce clause nexus

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 22 Market Maintenance Theory Vendor’s state activities are significantly associated with the taxpayer’s ability to establish and maintain a market in the state for its sales –Tyler Pipe Industries, Inc. v. Dept. of Revenue: Through sales contacts, sales reps maintained the name recognition, market share, goodwill, and individual customer relations of the company and therefore, subjected themselves to tax jurisdiction

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 23 Internet Tax Freedom act of 1998 (ITFA) Prevents federal, state, and local governments from imposing any new taxes on the Internet sales for a period of three years Can still tax is they have nexus, this is only if they do not have nexus 11 states already doing it were OK Created the Advisory Commission on Electronic Commerce –Who have recommended that the moratorium be extended for 5 years. –It was extended until November 2003

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 24 "3-year moratorium on special taxation on Internet access Bars state or local governments from taxing Internet access (i.e. the $19.95 or so that many Americans pay monthly to America Online, CompuServe, Erol's, or other similar services to access the Internet) from October 1, 1998 until October 21, A limited "grandfather" clause permits the handful of states already taking steps to tax Internet access--Connecticut, Wisconsin, Iowa, North Dakota, South Dakota, New Mexico, South Carolina, Tennessee, Texas, and Ohio--to continue to do so if they can demonstrate that their taxes had already been "generally imposed and actually enforced" on Internet access providers prior to October 1, Nevertheless, it is not expected that all of these states will in fact choose to tax Internet access: Connecticut and South Carolina, for instance, have already indicated they intend to abide by the national moratorium.“

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 25 Advisory Commission Could not come to a supermajority Recommended that the moratorium be renewed for 5 years until 2006

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 26 Governors Conferences and State Legislature Conferences Lobbying “big time” in favor of Internet sales tax Need the revenue, don’t want an extension of ITFA

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 27 Sales Tax and the Dormant Commerce Clause Wilson v. Black-bird Creek March –Even when Congress does not regulate interstate commerce, the power given to Congress is dormant, and states may not regulate interstate commerce New Energy Co, of Ind. v. Limbach Santa Fe Natural Tobacco, Inc. v. Spitzer

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 28 A New Sales Tax System: The Stream Line Sales Tax Project (SSTP) An e-business doing business in all states has a potential sales tax obligation in over 7,500 taxing jurisdictions, each with its own laws STSP: simplify and modernize sales and use tax collection and administration for remote online and offline sales transactions. –Two phases Uniform Sale and Use Tax Administration Act (USUTA) = model state legislation to bring states into uniformity Streamlined Sales and Use Tax Agreement (STUTA) = Agreement 29 States have adopted both phases of SSTP

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 29 SSTP – Makes the following uniform from state to state Definitions Exemptions Rates Returns Remittance Schedule Audit Procedures Payment to the merchant

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 30 3 Technology Models Model I. Certified Service Provider Model II Certified Automated System Model III Internal System Certified by the State

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 31 Internet Tax Moratorium and Equity Act Introduced in the 107th Congress Congress may facilitate equal taxation regarding a traditional retail establishment with mail order, telephone, or the Internet, consistent with Quill

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 32 International Internet Taxation Organization of Economic Cooperation and Development Initiatives –30 member countries –Developing a framework for international taxation –Committee on Fiscal Affairs Report, 1998 outlined a number of general principles

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 33 The Permanent Establishment Problem Source-based taxation principle – tax income where it originates Residence-based Taxation Principle – tax business’ income where the business lives Must define “Permanent establishment” of a business –Web site alone is not enough –Acting as hosting server is not enough –ISPs are not –Software /data is not, and server equipment is –Fixed computer equipment is –No need for human intervention to be a place of permanent establishment

(c) 2004 West Legal Studies in Business A Division of Thomson Learning 34 Other Countries’ Taxing Laws and Policies Germany India United Kingdom European Union Value-Added Tax on Internet Sales (VAT) –Effective July 1, 2003 – Non-EU vendors must collect and remit a value- added tax when selling electronic goods such as music and software in EU member states –U.S. sellers must figure out the buyer’s country, what the tax is, remit it to country