To be clear, the South Dakota case on tax collection applies only to online retailers with more than $100,000 in annual sales or 200 transactions from the state. It remains to be seen how that threshold may play out with other states and whether most states would place the tax collection burden on third-party marketplace operators like Amazon, eBay or Etsy.
The challenge to overturn Quill v. North Dakota was brought to the Supreme Court by South Dakota. South Dakota passed a law two years ago demanding that all retailers that, on an annual basis, have more than $100,000 in annual sales or engage in 200 or more separate transactions, pay a 4.5 percent tax on all sales, “as if the seller had a physical presence in the State.” The state government then filed suit to have the case heard by higher courts, and the Supreme Court agreed to hear the argument earlier this year.
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Not least of those is Amazon, a large part of whose business consists of sales made through other merchants operating on the site. While the e-commerce giant collects sales tax on all items it sells directly, third-party purchases are taxed in just two states, Washington and Pennsylvania. Those purchases could make up a third or more of Amazon's revenue, by some estimates.
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One small business owner Chad White, the owner of Class-Tech Cars, a Virginia-based small business that sells reproduction automotive parts online, recently testified before Congress that he has a part-time employee who — before the Wayfair decision — was able to collect and remit all applicable sales taxes in just a few hours each week. However, White said the ruling in the case “gives me, and millions of small businesses across the country, pause as we consider what lies ahead for Internet-enabled entrepreneurs.”
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(b) A provider of Internet access service or online services (a “provider”) is not deemed to be the agent of a vendor for purposes of determining the application of 830 CMR 64H.1.7(3) to such vendor solely as a result of: 1. the display of such vendor’s information or content on the provider’s out-of-state computer server, or 2. the processing of orders through the provider’s out-of-state computer server. See id.
NRF, representing both small retailers and big-box merchants, from Walmart and Target to Best Buy and Macy’s, isn’t the only one that’s happy about the ruling. In another sign of the disruptive impact of Amazon and digital native startups including eyeglasses label Warby Parker and mattress brand Casper, more than 20 other trade groups — from the National Grocers Association and the National Association of College Stores to the American Supply Association and the Auto Care Association — joined NRF in March in a brief supporting the South Dakota case on internet sales tax collection.
This exciting trend faces a potential hurdle after a Supreme Court ruling this summer. The case (South Dakota v. Wayfair) overturned a decades-old precedent in Quill Corp v. North Dakota. Specifically, the decision struck down the “physical presence” standard, which stipulated that out-of-state sellers, referred to as remote sellers, were not required to collect sales tax for states where they did not have a physical presence.
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