Third Time’s the Charm

by McGuireWoods LLP
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A 51-year old tax decision may finally be overturned as the Supreme Court takes a third look at a highly controversial sales tax issue: Should companies be required to remit sales taxes to states in which they sell products to residents, but do not have a physical presence? On April 17, the Supreme Court will hear legal arguments for South Dakota v. Wayfair, with a decision to follow this summer.

The Wayfair case began when South Dakota passed a law requiring Internet sellers to collect state sales tax for goods sold to residents. The lower court struck down the law as violating a prior 1992 Supreme Court decision – Quill v. North Dakota. Earlier this year, the Supreme Court accepted the Wayfair case, essentially agreeing to revisit the Quill decision.

In Quill, the Supreme Court limited a state’s ability to collect sales tax to retailers with a physical presence (e.g., a warehouse or store) in the taxing jurisdiction. Quill itself followed the 1967 Bellas Hess v. Illinois case in which the Supreme Court determined that states cannot tax mail order companies for in-state sales, unless they maintained a physical presence in the state.

Of course, this was long before the Internet and the growth of online retail. Given technological advancements, will the Supreme Court overturn its previous decision?

For starters, the makeup of the high court has changed quite a bit since the Quill decision. Only Justices Thomas and Kennedy remain from the Quill decision. However, since then, Justice Kennedy has invited the court to revisit the Quill and Bellas Hess decisions. In Direct Marketing Association v. Brohl, Justice Kennedy noted that in light of technological and social changes that have taken place in an increasingly interconnected economy, the Supreme Court should reconsider its previous decisions. Justice Kennedy also noted that as a result of the court’s decisions, states have been unable to collect sales taxes on Internet purchases, which has major financial repercussions. According to the Government Accountability Office (GAO), states could have collected $13 billion in sales taxes in 2017 alone from out-of-state companies.

Despite Justice Kennedy’s concurrence in Brohl, no other justices joined his concurrence.  However, some of the other justices seem to be reconsidering their position based on opinions in other cases, including the Supreme Court’s 2015 decision in Maryland v. Wynne.

Barring congressional action, the fate of cash-strapped states and retailers seems to be in the hands of the high court. Earlier this year, lawmakers made a final attempt to attach a sales tax legislation to the FY 2018 omnibus. However, the provision did not make it into the final deal.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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