April 18, 2018
Authored by: Bryan Cave and Charles Lin
The U.S. Supreme Court heard long-awaited arguments yesterday in South Dakota v. Wayfair, the case brought by the state against several retailers, hoping that the court will overturn over 25 years of precedent on the issue of the collection of sales tax from businesses located outside of the state.
South Dakota brought the suit, acknowledging that its position defies the Supreme Court’s holding in the 1992 case Quill Corp v. North Dakota, by arguing that the development of the internet and ensuing growth in online shopping necessitate reconsideration of the requirement that a business have a physical presence within a state in order to be subject to that state’s sales tax collection obligations.
Many await the high court’s decision, from numerous retailers, large and small, wary of the potential burdens of being forced to track and collect sales tax from customers who reside in various jurisdictions with different tax rates, to the states, who could see a boon to their coffers if Quill is overturned.
However, by the end of the arguments on Tuesday, the apparently divided Court left no clear indication that Quill would be overturned.
Justice Sonia Sotomayor suggested that Congress, rather than the Supreme Court, was the right forum in which to settle the matter. “Is there anything we can do to give Congress a signal that it should act more affirmatively in this area?” she asked.
But Chief Justice John G. Roberts Jr. said that “it would be very strange for us to tell Congress it ought to do something in any particular area.”
Justice Roberts also stated that “[t]he bigger e-commerce companies find themselves with a physical presence in all 50 states, so they’re already covered.”
Justice Neil M. Gorsuch seemed prepared to reconsider the Quill decision. “Why should this court favor a particular business model?” he asked.
Some justices said they lacked sufficient information on how hard it would be for small online retailers to collect taxes, and how much money is at stake. Justice Stephen G. Breyer said the two sides were of little help. Estimates of how much it would cost internet businesses to comply with the tax laws of an estimated 12,000 state and local jurisdictions varied from $12 to $250,000.