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Supreme Court uncertain on e-commerce tax decision

18 April 2018

"That might have been the case in 1992 but technology has eliminated that concern just as it has transformed the retail business and so much of the rest of our world".

South Dakota is asking the nine justices to overturn a 1992 Supreme Court precedent that states can not require retailers to collect state sales taxes on purchases unless the businesses have a "physical presence" in the state.

"This is a critically important issue for retailers - both large and small - across the country", Mathew Shay, CEO of the NRF, said past year. "Because of the court's decision 26 years ago, states are unable to enforce their own laws and brick-and-mortar businesses are being punished through no fault of their own".

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With different taxing authorities making an average of over 600 sales and use tax rate changes in the US every year, it's no wonder businesses of all sizes employ tax software services to stay up-to-date as they work to collect and remit all appropriate taxes from transactions in every jurisdiction.

After attending the oral arguments at the U.S. Supreme Court for South Dakota v. Wayfair, Inc. There are some 10,000 different sales tax jurisdictions in the U.S. Many e-retailers argue that ensuring that the correct sales tax is collected and remitted to the various jurisdictions imposes high compliance costs and an undue burden on the business.

The state of South Dakota notes that a lot has changed in the past several decades. North Dakota from the era of printed catalogs that requires retailers to collect sales taxes only in states where they have a physical presence. Justices are set to hear arguments Tuesday, April 17, 2018.

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On Tuesday, Justice Ruth Bader Ginsburg seemed willing them to join them, suggesting the court's past decisions were "obsolete precedent". "So you want Congress to act against this background in which this court has made an incorrect resolution of the law".

Will online shoppers be pushed to pay sales tax at check-out? "That's the assumption you're making".

Justice Elena Kagan said that it might be better if the Supreme court did not rule on the case because it could be better decided by the legislature: "Congress is capable of crafting compromises".

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The court's interest in reexamining the physical-presence rule comes from a case Brann and Isaacson litigated in front of the court in 2014-2015 for the Direct Marketing Association. He said software can help the process, but a ideal system remains elusive. Justice Stephen Breyer put it slightly differently. "Why should this court favor a particular business model that relies not on brick and mortar but on mail order?" he asked.

Supreme Court uncertain on e-commerce tax decision