A 1992 Supreme Court decision (the Quill v. N. Dakota case) attempted to address the issue of internet transactions. According to the Tax Foundation, the Quill decision said that a business "must have a physical presence in a state in order to require the collection of sales or use tax for purchases made by in-state customers." This physical presence is called a tax nexus. The tax nexus concept originally meant a physical building, office, warehouse, retail store, or employees selling in the state.
An eBook is an electronic version of a traditional print book that can be read by using a tablet computer or by using an eBook reader. Users can purchase an eBook on diskette or CD, but the most popular method of getting an eBook is to purchase a downloadable file of the eBook without purchasing any physical storage medium. A mobile application, also known as a “mobile app”, is computer software designed for use on a smartphone or tablet computer. The transfer of a downloadable file such as an eBook or an “app” without purchasing any physical storage medium is not a taxable transaction.
For basic guidance on how physical presence is defined under Texas law, consult Section 151.107 of the Texas Tax Code (Tax Law), which provides a variety of definitions for “RETAILER ENGAGED IN BUSINESS IN THIS STATE.” The first of the statutory definitions refers to maintaining a place of business in the state directly, or indirectly or through a subsidiary or agent. The fifth definition acts as something of a catch-all, by stating that a retailer who solicits orders by mail or other media can be required to collect and pay sales tax if permitted by federal law.
To the great disappointment of many small business owners and supporters of federalism, the Supreme Court’s recent decision in Wayfair v. South Dakota opened the door for states to impose an internet sales tax, even on businesses that have no physical presence in their borders. Because Congress has the constitutional authority to regulate interstate commerce, it is now considering ways to address this newfound taxing authority. Congress must take this opportunity to use its power to protect small businesses from these taxes and perhaps to at least work to slow the process down while a long term solution is explored. The strength of the American economy depends on it.
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In this new world of digital transparency brands have to be very thoughtful in how they engage with current and potential customers. Consumers have an endless amount of data at their fingertips especially through social media channels, rating and review sites, blogs, and more. Unless brands actively engage in these conversations they lose the opportunity for helping guide their brand message and addressing customer concerns.
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