In South Dakota v. Wayfair, Inc., No. 17-494, decided June 21, 2018, the U.S. Supreme Court held that a state can require out-of-state sellers to collect and remit sales taxes even if they have no physical presence – like a warehouse or employees – in the state. This article will discuss the Wayfair decision and the Court’s reasoning for overturning the physical presence rule that had existed for 50 years. It will also discuss the possible implications of that decision on businesses, states, and consumers.
Constitutional limitations on state taxation
The specific question before the Court in Wayfair was whether a South Dakota tax law violated the Commerce Clause of the U.S. Constitution. The Commerce Clause limits a state’s right to tax interstate commerce. In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977) the Supreme Court held that a state can impose a tax on interstate commerce only if it (1) applies to an activity with a substantial nexus to the state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce and (4) is fairly related to services the state provides.
At issue in Wayfair was the “substantial nexus” requirement. In National Bellas Hess, Inc. v. Dep’t. of Revenue of Ill., 386 U.S 753 (1967) the Court held that a state lacks the power to require an out-of-state seller to collect sales tax on goods purchased for use in the state unless the retailer had a physical presence such as retail outlets, solicitors, or property in the state. The Court reaffirmed that a physical presence was required to have the necessary nexus in Quill Corp. v. North Dakota, 504 U.S. 298 (1992).
The South Dakota Tax Act at issue
In 2016 South Dakota enacted Senate Bill 106 – “An Act to Provide for the Collection of Sales Taxes from Certain Remote Sellers”. The Act requires out-of-state sellers to collect and remit sales tax “as if the seller has a physical presence in the state.” The Act applies to sellers that annually deliver more than $100,000 of goods or services into the state or engage in 200 or more transactions for the delivery of goods or services in the state.
The Act was clearly unconstitutional under Bellas Hess and Quill – a fact of which South Dakota was well aware. Nevertheless, the state sued three online retailers – Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc. South Dakota sought a declaratory judgment that the Act was valid and applicable to the three online sellers and that they were required to register for licenses to collect and remit the taxes. The state knew the lower courts would hold the Act unconstitutional, but its purpose was to have the Supreme Court review the lower court’s decision and overturn the physical presence rule. And that is exactly what the Court did.
The U.S. Supreme Court overturns Quill
The Court found in favor of South Dakota in a 5-4 decision. Justice Kennedy, writing for the majority, was highly critical of the physical presence rule. He stated that Quill misinterpreted the Commerce Clause and that a physical presence is not necessary to create a substantial nexus.
The Court had three main rationales for rejecting the physical presence rule – that it creates market distortion, that it ignores the realities of e-commerce, and that it unfairly interferes with a state’s authority to collect taxes.
The Court stated that it is not the purpose of the Commerce Clause to permit the Judiciary to create market distortions – which is exactly what Quill did. Quill, the Court said, “has come to serve as a judicially created shelter for businesses that decide to limit their physical presence and still sell their goods and services to State consumers – something that has become easier and more prevalent as technology has advanced.” Worse yet, stated the Court, distortions caused by the desire of businesses to avoid tax collection may result in a lack of storefronts, distribution centers, and employment centers.
Realities of E-Commerce
The Court also emphasized how different commerce is now than when Quill was decided in 1992. Modern e-commerce does not align analytically with a test that relies on the sort of physical presence defined in Quill. The Court pointed out that between targeted advertising and instant access to most consumers via the Internet, a business may be present in a state in a meaningful way without being physically present. A virtual showroom, for example, can show far more inventory, in far more detail and with greater opportunities for sellers and consumers to interact than might be possible for local stores.
Imposition on states’ taxing authority
The Court also called the physical presence rule an extraordinary imposition by the courts on the states’ authority to collect taxes and perform critical public functions. The Court noted that the states were losing between 8 and 33 billion dollars in revenue as a result of the physical presence rule. It also pointed out that the Quill Court could not have envisioned a world in which a remote seller would be the country’s largest retailer. The physical presence rule, according to the Court, was unfairly preventing the states from collecting an indispensable source for raising revenue.
Impact on small business
In defense of the physical presence rule, the three online retailers argued that the rule has permitted start-ups and small businesses to use the Internet as a means to grow their companies and access a national market without exposure to the daunting complexity and obstacles of nationwide sales tax collection. The Court disposed of those arguments by saying that eventually there will be reasonably priced software to help small businesses cope and that Congress may legislate to address the problem if it feels it necessary. The Court also pointed out that South Dakota provides a degree of protection by having sales and transaction thresholds, by not making the tax retroactive, and by participating in the Streamlined Sales and Use Tax Agreement – which standardizes taxes to reduce administrative and compliance costs.
Four Justices dissented. Chief Justice Roberts, who wrote the dissent, said that he agreed that Bellas Hess was wrongly decided. However, he went on to say that any alteration of the physical presence rule, with its potential to disrupt the critical e-commerce segment of the economy, should be undertaken by Congress.
The dissent was also critical of the majority’s “breezily disregard[ing]” the costs that its decision will impose on retailers – and disproportionately on small businesses - who will now have to calculate and remit taxes on e-commerce sales in up to 10,000 jurisdictions that levy sales taxes, each with different rates and rules.
Potential implications of Wayfair
The basic holding of the Wayfair decision is that the substantial nexus requirement of the Complete Auto test may be satisfied if an out-of-state seller has “economic and virtual” contacts with the state. The implications of that holding remain to be seen. But it is likely to have an impact on the following parties, at the very least:
States – States that have already enacted sales tax laws similar to South Dakota can now apply and enforce them. Other states can now be expected to enact similar laws requiring remote sellers to collect and remit sales taxes. The states can also expect to have increased revenues.
Remote/Internet sellers – Remote sellers will have to register for a license and collect and remit sales taxes in all states that impose a sales tax where they satisfy the tax law’s nexus requirement. Depending on the state laws, they may also have to pay back taxes.
Brick-and-mortar sellers – Sellers with a physical presence that have already been collecting taxes may see an increase in sales as Internet sellers no longer have the competitive advantage of not charging sales tax.
Entrepreneurs – People thinking about starting or buying a business that involves selling products or services over the Internet now have to consider the additional costs and administrative burdens of having to collect sales taxes.
Nobody can say for sure what the exact impact of this landmark decision will be. Perhaps Congress will decide to act, as the dissent suggested. Or perhaps the states will provide protections for smaller businesses. One thing is certain however – there will be winners and losers. Only time will tell who they will be.