The New Hampshire Senate unanimously approved S.B. 242 last week, a bipartisan bill that aims to protect state businesses from the effects of last year's Wayfair decision, which allows states to impose sales and use tax regulations on e-retailers and other out-of-state sellers that do not have a physical presence in the state but that do meet dollar or transaction thresholds that create an economic nexus.
Help may be coming for retailers concerned with the abrupt change in the law last year that may require many retailers to begin collecting tax on sales to customers in a state regardless of whether the retailer has a physical presence in the state. In 2018, the U.S. Supreme Court's holding in Wayfair v. South Dakota allowed states to require remote retailers to collect taxes and fees on sales in their state if the seller was deemed to have an economic nexus with the state, regardless of any physical presence. On January 9, 2019, relief legislation was announced, known as the "Protecting Business from Burdensome Compliance Cost Act," which would delay the imposition of new laws to January 1, 2020, and would require states to streamline the tax rate and submission requirements. Click here to read about HR 379.
On September 13, 2018, a bill was introduced in the U.S. House of Representatives "to prohibit States from retroactively imposing a sales tax collection duty on a remote seller," among other purposes. H.R. 6824, also called the Online Sales Simplicity and Small Business Relief Act of 2018, seeks to limit the impact of the recent Wayfair decision, which eliminated the need for a business to be physically present in a state in order to have economic nexus in that state.
In a 5-4 decision, the Supreme Court ruled today that states may now require online retailers to collect sales taxes from consumers, regardless of where the business is located or the product is delivered. In 1992, the same court ruled that a business had to have some kind of "physical presence" or "nexus" in order to be required to collect sales tax in a state. With the increased use of online shopping, however, it turns out not all taxpayers report non-taxed purchases to the states in which they reside. In fact, an estimated $33.9 billion goes uncollected in sales taxes each year, costing states a significant sum. Additionally, internet shopping tax-free has hurt the brick-and-mortar stores that already have higher operational costs due to a physical presence in a state, since they must collect sales tax on taxable transactions.
South Dakota is taking the physical presence rule back to our nation's highest court in its dispute with Wayfair, Inc., to determine whether it may continue to require out-of-state sellers such as online retailers to register with the state and collect and pay over sales tax. In the seminal case from 1992, Quill Corp. v. North Dakota, the U.S. Supreme Court ruled that retailers did not have to collect sales tax in any state where they have no physical presence. However, the exponential growth of eCommerce and internet sales has significantly changed the retail landscape since that time.
If Congressman Jim Sensenbrenner (R-WI) and House Judiciary Chairman Bob Goolatte (R-VA) get their way, it will. On June 12, 2016, Sensenbrenner and Goolatte introduced the "No Regulation Without Representation Act of 2017" which would expand the "physical presence" requirement of a similar 2016 House Bill (H.R. 5893) to all taxes and to all regulations in general.