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December 11th, 2018

Insight

In an age of e-commerce, the 'Quill rule' is more vital than ever

Jeff Jacoby

By Jeff Jacoby

Published Jan. 23, 2018

In an age of e-commerce, the 'Quill rule' is more vital than ever

It has been a fixed rule of American commerce for 50 years that businesses cannot be compelled to collect taxes for states with which they have no physical connection. Underlying the rule are two core principles: First, the flow of interstate commerce must not be impeded by one state's impositions. And second, there should be no taxation without representation; vendors should not be liable for taxes in states where they have no vote or political recourse.

The Supreme Court upheld this "physical connection" standard in a 1992 case, Quill v. North Dakota. At issue was an office-supply company based in Illinois that sold its products through catalogs. North Dakota demanded that Quill collect and remit the tax on purchases made by North Dakotans. Quill refused on the grounds that it had no operations or property in the state — no warehouses, no staff, no office — and the Supreme Court, invoking the Constitution's Commerce Clause, ruled for the company.

But the Quill decision didn't stop states from grousing about the taxes they don't reap from out-of-state sales, and the complaints have only grown louder with the rise of the Internet and the growth of online commerce. Brick-and-mortar merchants grumble too, insisting that it's unfair that they have to charge tax on every sale, while online competitors in other states don't.

Now the Supreme Court has agreed to take a fresh look at the issue, again choosing a case from the Dakotas for the purpose.

In 2016, intent on forcing a showdown over the Quill standard, South Dakota's legislature and governor enacted a law deliberately flouting the longstanding precedent. It decrees that any merchant selling goods or services delivered to South Dakota "who does not have a physical presence in the state . . . shall remit the sales tax . . . as if the seller had a physical presence in the state." (Companies with fewer than 200 transactions in South Dakota are exempt.) When the law was signed, two groups representing remote sellers challenged it in state court. South Dakota's Department of Revenue countersued, brazenly acknowledging that it was seeking the "abrogation" of the Supreme Court's holding in Quill.

Rather than abrogate Quill, the high court should reaffirm it. In the 26 years since the justices rebuffed North Dakota's claim, the case against allowing states to exert their taxing power over remote sellers has grown even stronger.

For one thing, while states gripe about all the revenue they're losing on Internet sales, the vast majority of online purchasers do pay sales tax. Since most of the nation's largest retailers — Apple, Target, Wal-Mart, Macy's — have a physical presence in nearly every state, they routinely collect taxes from their online customers. The largest of all online vendors, Amazon, collected sales taxes in only a handful of states as recently as 2009. But its network of distribution centers has since expanded nationwide, with the result that Amazon now collects sales taxes everywhere.

Far from depriving states of more and more tax revenue, the Quill rule is funneling more and more of that revenue to them. In November, the Government Accountability Office estimated that remote and online sellers now remit between 75 and 80 percent of all the taxes states could claim even if the Quill rule didn't exist.

In short, the supposed problem of uncollected sales taxes has largely disappeared. The large retailers who account for the vast majority of online sales remit taxes on those sales. And while online commerce may seem ubiquitous, it actually adds up to barely 9 percent of all retail transactions. The purchases that Quill bars states from taxing amount to no more than a small fraction of an even smaller fraction.

But within that sliver are countless small businesses that would be badly hurt if Quill didn't protect them from being conscripted into collecting taxes for states to which they have no ties. In its 1992 ruling, the Supreme Court saw clearly that forcing sellers in one state to collect other states' taxes would unduly burden interstate commerce. It would be intolerable, the court suggested, for a local vendor to be exposed to all the legal obligations "imposed by the Nation's 6,000-plus taxing jurisdictions."

Those were the good old days. Since Quill was decided, the number of taxing jurisdictions has soared. According to Avalara, a provider of tax-compliance software, there are now 12,000 taxing jurisdictions — not only states, counties, and cities, but also parishes, police districts, and Indian reservations. A lone online seller, unprotected by the Quill rule, could be obliged to remit taxes to any combination of them, with all their multitudinous rules and definitions, tax holidays and filing deadlines.

E-commerce giants like Apple and Amazon may be able to absorb the enormous costs of setting up and operating multistate tax-collection and remittance systems. For local retailers, internet startups, and small "brick-and-click" vendors with a shop on Main Street and a simple website, those costs could be ruinous.

South Dakota can impose onerous burdens on companies operating within its borders, but not on vendors whose only connection to the state is that some of their customers happen to live there. The court got it right the first time. No merchant — whether selling online, via mail order, or in a traditional shop — is obliged to be a tax collector for states it doesn't operate in.

The Quill standard made sense in 1992. It makes even more sense today.


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