Big States Missing Out on Online Sales Taxes for the Holidays

December 9, 2018

By Elaine S. Povich

WASHINGTON — Big states such as California, New York and Texas likely will miss out on millions in sales tax revenue this holiday shopping season because they have failed to implement laws and regulations for collecting state sales tax from online purchases.

While the U.S. Supreme Court gave states the go-ahead in June to begin collecting sales taxes from all online purchases, it was up to the states to write and put into effect the statutes and rules to make that happen. A host of states have done so, but disputes about how to carry out the court ruling, including a clash over how much business an online seller has to do in a state to get tagged with collecting and remitting taxes, has stalled implementation in some big states.

The high court vote was 5 to 4 in the South Dakota v. Wayfair Inc. case, in which the state set the threshold for online sellers at $100,000 annually or 200 transactions in the state to be required to collect and remit sales taxes. Most states that have implemented online tax collections have followed the South Dakota model.

But experts and some lawmakers who worry about small sellers having to deal with sales tax paperwork when their sales are relatively limited argue that the South Dakota threshold is too low for a large state like California, for example.

“I think there ought to be a different threshold depending on the size of the state,” said Eric Miethke, a tax attorney and former member of the California Board of Equalization, which administers tax law. “The whole premise of the Supreme Court is that you have a big enough footprint in the state for nexus.

“The court said ‘$100,000 or 200 transactions sounds OK to us.’ That’s in a state with a population of one California city,” he said in an interview.

Miethke was among those who testified at a Oct. 24 hearing by the California Department of Tax and Fee Administration, which is charged with promulgating rules to carry out tax law, or in this case, the ruling of the high court. During the discussion, several witnesses brought up the threshold issue.

Board members indicated that if the state sticks to the South Dakota threshold no new legislation is needed, but that might not be the case if the state sets a new threshold. The board members did not reach a conclusion.

Richard Cram, director of the National Nexus Program at the Multistate Tax Commission, an intergovernmental state tax agency that supervises and promotes uniformity in state taxes, said larger states feel pressure to set a higher threshold: “It’s a tug and push between the state revenue departments and the state legislatures on what kind of regulations they want to enact.”

If a state legislature wants to act, at this point it probably won’t be until 2019 at the earliest, as most have adjourned and those that are in session year-round generally don’t deal with big issues in the last weeks of the year, meaning the state is missing out on the 2018 holiday shopping season.

The U.S. Government Accountability Office in 2017 reported that state and local governments last year could have collected $8.5 billion to $13.4 billion if they could have taxed remote retailers the way they can now. The National Governors Association put the number higher, saying states with sales taxes could collect $26 billion annually from online and mail order purchases.

The Texas Comptroller of Public Accounts has proposed a rule that would establish a threshold of $500,000 annually in online sales in Texas for a business to be required to collect sales taxes, said Kevin Lyons, spokesman for the Texas agency.

The rule, which has just gone through a public comment period, would take effect in October 2019. “If you are not doing $500,000 worth of business, you won’t have to collect,” Lyons said. The rule does not establish a separate number-of-transactions test, like the 200 in South Dakota.

“We just thought if you are doing that much business, you have an economic impact in Texas,” he said in an interview, discussing how the amount was set.

Meantime, the Texas legislature is set to consider a bill next year that would equalize tax collections through the 1,500 sales tax entities in the state. Texas has a 6.25 percent state sales tax.

On top of that, many jurisdictions impose their own sales tax, up to 2 percent, so that most residents pay about 8.25 percent in total, Lyons said. The bill would set a uniform local rate of 1.75 cents, he said.

In the District of Columbia, another jurisdiction where online sales tax collections have not been codified, spokeswoman Natalie Wilson said legislation is being considered that would take effect Jan. 1, also missing the 2018 holiday shopping season.

In California, the GAO estimate for online sales tax revenue is between $1 billion and $1.7 billion annually. H.D. Palmer, deputy director for external affairs at the California Department of Finance, said officials in his state think the amount is closer to the lower end of the range.

In addition, some large online retailers such as Amazon already have started collecting and remitting sales tax from their transactions in the wake of the high court decision. Other large retailers are waiting for individual states to act.

And in the five no-sales-tax states like New Hampshire where retailers are balking at having to collect sales tax for other states, enforcement is murky. The other states are Alaska, Delaware, Montana and Oregon.

“We believe that some of the additional ‘Wayfair decision’ revenue has likely already started coming in as some remote retailers reacted to the Supreme Court decision,” Palmer said in an email, though that amount hasn’t been tallied. “Additional revenue should come in when” the California tax and fee board starts enforcing the new requirement.

Because of the disparity in laws and tax rates, there is talk on Capitol Hill of writing a federal law to streamline online sales tax procedures. But bills to do so have gotten no traction so far.

The National Retail Federation reported that between Thanksgiving Day and Cyber Monday (the Monday after Thanksgiving), 165 million people shopped both online and in stores this year.

Nearly 90 million of them were “multichannel” shoppers, meaning they used both brick-and-mortar stores and the internet to make their purchases. Last year, there were 64.5 million multichannel shoppers in the same time period, the federation said.

Bethany Aronhalt, senior director of media relations for the National Retail Federation, said in an email that while the group has no empirical data, it is “unlikely” that the Wayfair decision had “much of an impact on the holiday weekend” shopping, noting the nearly 40 percent increase in multichannel shoppers.

Since Amazon already collects sales tax for the states that have it, many shoppers were already used to the idea, she said. “The Wayfair decision did, however, create a fair and level playing field for Main Street retailers who were previously at a competitive disadvantage with some online sellers.”

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