Online sales can now be taxed after Supreme Court rules in South Dakota v. Wayfair

State and Local budget officers around the country released a collective sigh of relief this week as the Supreme Court ruled in their South Dakota v. Wayfair ruling that online retailers can be forced to collect sales tax. In a ruling from 1992, known as the Quill ruling, the Supreme Court had previously ruled that retailers without a physical presence in a state didn’t have to collect sales tax for catalog orders. The thought for many at that time had been that sales tax collection was too complicated for small catalog (and eventually online) retailers to charge the correct rates and remit payment accurately. As Supreme Court Justice Kennedy noted in his majority opinion, “States may not impose undue burdens on interstate commerce.” In the past, the collection of sales tax was seen as an undue burden on interstate commerce, but with the advent of technology and spread of online retail, this challenge became less and less of a burden.

As the Tax Policy Center points out, this “new” ability of states and local governments to collect taxes is not a new tax at all, but rather this tax revenue is “a tax that most consumers already owe.” (You are typically asked how much you purchase online when you file your income tax return and asked to pay for uncollected sales tax–though most people ignore this request.) As we have previously written about here on the Urbanism Next blog, the amount of tax that has gone uncollected because of the previous Quill ruling, some estimate this to be as high as $34 BILLION annually (for the whole US). In the Wayfair ruling Justice Kennedy was right to note that “Quill creates rather than resolves market distortions. In effect, it is a judicially created tax shelter for businesses that limit their physical presence in a State but sell their goods and services to the State’s consumers, something that has become easier and more prevalent as technology has advanced.” Online retail was/is creating market distortions, as any local retail could have told you for the last 15 years or so. And finally, Kennedy notes that the US government could no longer rely upon an “anachronistic rule that deprives States of vast revenues from major businesses.” This realization that online retail is just retail will help fill holes in state and local budgets that have been growing and growing. The Quill ruling was, for some online retailers, creating an incentive to not invest in brick-and-mortar retail because they didn’t want to comply with the sales tax provisions. With the Wayfair ruling now the law of the land, there may be some real positive outcomes for establishing some physical storefronts online retailers that they had been hesitant to do.

Naturally, states that have taken advantage of the no sales tax business are not particularly happy about the ruling. New Hampshire is home to Wayfair and other online retailers has seen its political leaders calling the Wayfair ruling ‘disastrous.’ Perhaps for them, but not for the rest of the country.

However, the Wayfair ruling doesn’t resolve all sales tax questions. The Tax Policy Center notes that “While the Court gave states broad leeway to collect sales taxes, it left many questions unanswered. For instance, should tax be collected based on the location of the seller or the buyer? If the latter, should it be based on a billing address or a shipping address? Should small firms be exempt from the requirement to collect tax? If so, how should small be defined?” This means that Congress can and should act soon to clarify these questions so that states and local governments can begin to plan more appropriately for their future. Until Congress acts, the states have the authority to enforce and collect sales taxes as they see fit. For the most part, states have indicated that they will only collect sales taxes for future sales, but that doesn’t mean a state could look backward and collect on sales from prior years. Given that most online retailers didn’t collect the sales tax, they may be liable for paying them nonetheless, which could pose a hardship on those retailers. This backward question seems like one that would be politically hard to justify for many states and local governments, but only time will tell how tenaciously it is enforced.