Amazon's sales tax battle with states headed for a rematch |
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Lawmakers in a number of cash-strapped states are poised to revive efforts to make Amazon.com and other internet retailers collect sales tax — efforts that, if successful, could have far-reaching consequences for Amazon’s fast-growing e-commerce business.
Seattle-based Amazon only collects sales tax in a handful of states. But last year, a variety of state legislatures, looking for new sources of revenue to fill budget holes, tried to force Amazon and other internet retailers to collect sales tax on web purchases.
Amazon pushed back and managed to stomp out or neuter most of those efforts in 2009. But with many states continuing to face acute budget crises, some state lawmakers appear likely to raise the topic again in the new year.
For Amazon, the stakes are high. The company has had noteworthy success growing its e-commerce business in a tough economy, pushing its shares to all-time highs. By not collecting sales tax in most states, the company has a competitive advantage over brick-and-mortar rivals. Amazon is keen to hold onto that advantage as it engages in price wars with other retailers across a slew of product categories.
If key states, including populous California, succeed in forcing Amazon to collect sales tax, the company will have to work harder to hold onto bargain-hunting shoppers. It may also spur Amazon to intensify its push for national legislation creating a simpler and more uniform system for online sales tax collection across all 50 states.
Amazon, through a spokesman, declined to comment.
Currently, retailers are only required to collect sales-and-use taxes in states where they have a physical presence, according to a 1992 Supreme Court decision, Quill v. North Dakota. That means online-only retailers such as Amazon are largely off the hook. People are supposed to pay their own sales tax on online purchases in many states, but rarely do.
But last year, a variety of states, following the lead of New York, sought to define some web retailers as having a physical presence, and thus the responsibility to collect sales tax, based on their ties to locally based affiliates. Amazon has a network of affiliates, websites that advertise and link to Amazon products such as books, toys and electronics. When someone clicks on those ads and links and buys something, the affiliate gets a percentage of the sale.
More than half a dozen states considered or introduced New York-style bills in 2009. Amazon waged a high-profile campaign against such bills, however, calling them “unconstitutional” and threatening to end affiliate programs in states that passed them into law, thus removing the basis for any sales tax collection.
The company’s efforts partially succeeded. In the end, Hawaii Gov. Linda Lingle vetoed a New York-style bill in her state, and Gov. Arnold Schwarzenegger threatened to veto one in California. In the end, only North Carolina and Rhode Island pushed through laws, and Amazon cut off affiliate programs there (although it continues to sell products in both states).
But the skirmishes may not be over. In California, which has enacted painful spending cuts and faces another massive budget shortfall, one lawmaker is signaling she’ll revive efforts to force internet retailers to collect sales tax.
State assemblywoman Nancy Skinner (D-Berkeley), who co-sponsored the internet sales tax collection bill last year, which Schwarzenegger threatened to veto, plans to push the notion again in budget negotiations in the new legislative session, which starts in early January.
“It’s simply not fair to say one set of businesses collects the sales tax and another one doesn’t, selling the same product,” said Skinner’s chief of staff, Frank Russo.
Daniel Schibley, a Chicago-based analyst who tracks state and local tax issues for CCH Inc., a unit of information services company Wolters Kluwer N.V., said he expects New York-style legislation to turn up again in states that continue to face grim fiscal scenarios.
“States are very much in need in revenue,” Schibley said. “You’re going to see it showing up a lot in 2010.”
The Center on Budget and Policy Priorities, a left-leaning group that focuses on issues affecting low- and moderate-income people, threw more fuel on the fire with a November report that slammed Amazon over its tax stance, saying it “hurts state and local governments’ ability to finance education, health care, and other services.”
The group accused Amazon of flaunting the physical "nexus” test, saying it collects sales tax in just four of the 17 states where it or its subsidiaries have facilities. And it dismissed arguments that Amazon would be burdened by collecting sales taxes across all the states, saying Amazon already does this behind the scenes for third-party sellers on its website and for the Target retail chain (Amazon currently runs Target's ecommerce website).
Randall Stross, a business professor at San Jose State University, wrote in a recent New York Times column that Amazon's tax position "means the loss of considerable revenue to states and localities that badly need it."
New York state, which kicked off the internet sales tax push, recently gave an indication of how much revenue its “Amazon law” has generated — data that may inform debates in other states this year.
The New York state Department of Revenue says it brought in $53 million in sales and use tax from 30 newly registered e-commerce companies during the fiscal year that began in April 2008 and ended in March 2009. The agency expects that revenue to reach $70 million in the current fiscal year, which ends in March 2010.
Amazon and Overstock.com are challenging the New York law in court, though Amazon is in the meantime collecting sales tax in New York. Amazon also collects sales tax in its home state of Washington, as well as in Kansas, Kentucky, and North Dakota, where it has warehouses, according to its website.
Amazon has shown support for the Streamlined Sales Tax Project, an effort dating back to 2000 to simplify and coordinate sales tax laws across the states (the project has 23 member states, including Washington). It will be interesting to see if Amazon ramps up its support for this effort, or makes some kind of push for federal sales tax legislation.
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