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 Pemberley
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 From
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 Giovanni
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Buyer,
Beware: Taxing E-Commerce
By
Stan Soper
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News in
the past couple of years about efforts to tax sales made
via the Internet is, in reality, the same debate that has
gone on for years about whether and how to tax mail-order
sales. The Internet adds a little complexity, but the
issue remains the same. A
sales tax is a tax imposed by a state on the sale, or
lease, of tangible personal property and certain services.
The laws are often written so that the tax is imposed on
the buyer, although it is the seller who has to collect
and remit the tax. Currently, 45 states impose sales
taxes.
When do businesses have to
collect sales taxes for sales in other states? Whether a
state can tax a transaction depends on whether the seller
has established what lawyers call a nexus with that state.
The U.S. Constitution and federal law prohibit states from
requiring sellers to collect taxes unless the seller has
had sufficient contact with that state.
Determining what sufficient
contact means isn't always easy, but the U.S. Supreme
Court has clearly established that if a company has a
physical presence in a state, such as a retail store, a
warehouse or a regular presence of traveling sales
representatives, the company can be required to collect
sales taxes from customers in that state.
Location, Location, Location
Identifying where a sale takes place can be difficult,
especially when the sale takes place online. It is
possible, for example, for an online sale to involve a
person seated in front of a computer in New York, using an
Internet service provider (ISP) based in South Dakota, to
access the Internet via the ISP's server in Utah to buy a
product from an online retailer based in Maine who will
ship the product from a warehouse in Michigan.
Did the sale occur in New York,
where the buyer was sitting when he or she electronically
made the purchase? In Maine, where the retailer is based?
Could South Dakota impose a tax on the sale because, the
ISP was located there — or Utah because the ISP's server
was located there? How about Michigan, the state from
which the product was shipped? Could all five states
impose a tax on the transaction? Given that many online
sales cross state lines and occur without a location in
the traditional sense, it's possible that several states
will try to impose taxes on the same sale. This result
would clearly have an adverse impact on consumers'
willingness to buy goods online.
It can be virtually impossible to
determine the location of a sale if the sale involves a
digital product such as downloadable software. There is no
way to verify the physical location of someone buying the
product. A consumer could, in fact, cross several state
lines during the download process by using a laptop
computer and a wireless Internet connection. In many
states the sale of digital products, such as software
downloaded directly from the Internet, aren't subject to
sales tax even if the retailer has a business presence in
the buyer's state. This is because digital products
weren't around when most state legislators created sales
tax laws.
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Article
Continues below...
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Continued...
Making a
Federal Case
Recognizing
the complex tax issues surrounding electronic commerce, Congress
in 1998 passed and President Bill Clinton signed into law the
Internet Tax Freedom Act (ITFA). The law imposed a three-year
moratorium, to end Oct. 21, 2001, on new state taxes that are
discriminatory or result in multiple taxation on electronic
commerce. The law placed the same moratorium on new taxes to
Internet access fees.
The moratorium prohibits state or local
governments from imposing taxes that would subject buyers and
sellers engaged in electronic commerce to taxation in multiple
states. It also prohibits states from imposing new taxes on
consumers and vendors involved in commercial transactions via
the Internet, including so-called discriminatory tax collection
requirements imposed on out-of-state businesses through
"strained" interpretations of whether the business has a
business presence in the state.
What to Do
Whether you have
an obligation to collect sales taxes during an online
transaction depends in large part on the laws of the particular
state involved. You should focus mainly on the laws of the
buyer's state. The following are the general rules, which are
the same rules that apply to mail-order sales:
- If you
are located in the same state as the buyer, you have to
collect the sales tax and remit it to the state.
- If an out-of-state buyer purchases
an item from you, you have to collect a sales tax and send it
to the buyer's state only if you have a physical presence in
the buyer's state, such as a store, a distribution center or a
sales representative who lives there.
- If you don't have a physical
presence in the buyer's state, you can't be required to
collect a sales tax and forward it to that state — it's the
buyer's responsibility to pay a use tax directly to the state
if it imposes one.
Remember, these
are generalizations and the specifics vary from state to state.
The views of our authors don' t necessarily
reflect the views and policies of this company or its
advertisers.
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