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Supreme Court Rules States Can Collect Online Sales Taxes

States can now force internet retailers to collect sales taxes in states where they have no physical presence, the Supreme Court ruled on Thursday.

In a 5-4 decision, the court overruled the 1992 decision Quill Corporation v. North Dakota, which said the Constitution bars states from collecting sales taxes from companies that don’t have a substantial connection to the state.

Led by South Dakota, states argued that they’re missing out on tens of billions of dollars in annual revenue – $13.7 billion in 2017, according to a Government Accountability Office audit. In addition, brick-and-mortar businesses have claimed it’s an uneven playing field because they have to charge sales taxes while many of their online competitors do not. The Trump administration had sided with the states, saying a virtual presence in the state is equivalent to a physical one.

“Quill puts both local businesses and many interstate businesses with physical presence at a competitive disadvantage relative to remote sellers,” Justice Anthony M. Kennedy wrote in the majority opinion of South Dakota v. Wayfair, The New York Times reported. “Remote sellers can avoid the regulatory burdens of tax collection and can offer de facto lower prices caused by the widespread failure of consumers to pay the tax on their own.”

Justice Kennedy said the decision left open the possibility that some transactions were so small that no taxes should be collected. The court also did not decide whether states may seek sales taxes retroactively.

In dissent, Chief Justice John Roberts said the court should not be doing the work of Congress, The Washington Post reported.

“E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule,” Roberts wrote. “Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress. The court should not act on this important question of current economic policy, solely to expiate a mistake it made over 50 years ago.”

Stan Hansen, director of tax for the ASI Family of Companies, said the ruling is a mixed bag for the promotional products industry. While local retailers will have a level playing field when dealing with online competitors, it poses a major administrative challenge for business leaders.

“The downside of the Supreme Court ruling is that a business will now have to potentially know the sales tax laws of every state, file sales tax forms for every state and be registered to do business in every state,” Hansen said. “The sales tax filing requirements put a tremendous burden on a company that sells in every state, such that the company will have to hire outside services or hire additional staff just to comply with the various sales tax laws.”

Companies will have to worry about not only abiding by state tax laws, but also local tax laws, too, says Charles Machion, senior VP and senior counsel for ASI. “It’s really the collection and administration that will cause people headaches,” he said. “Smaller companies are going to have to pay for software that handles it.”

ASI offers sales tax functionality in ESP CRM & Orders, where distributors can elect to use a service ASI integrates with, or they can set up their own tax rates. These taxes are then used on any order created in ESP Orders.

The lack of uniformity among sales tax regulations would be an administrative nightmare, said Larry Cohen, CEO of Top 40 distributor Axis Promotions (asi/128263), earlier this year. Because of the structure of the industry, some feel suppliers and distributors would have to subscribe to the same process for overall consistency. But there are still companies, Cohen said, that don’t believe in automation and handle everything manually. “I don’t see an easy solution to it,” he told Counselor in April. “The challenge for small businesses would be insurmountable.”