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Marketplace Fairness Act Looms

Marketplace Fairness Act Looms [2023 Update]

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With the 2014 holiday shopping season about to grind down to the home stretch, the sales figures are already rolling in. And once again, online transactions have maintained their brisk and healthy growth from years past.

Cyber Monday chalked up record sales, rising a reported 17 percent from 2012 according to USA Today. Cyber Monday, the Monday after Thanksgiving, has been embraced by the media as a flashpoint date for online retail sales during the traditional holiday shopping cycle. The convenience of online shopping versus the hassle of holiday shopping traffic gets the consumers interested. Combining that convenience with the staggeringly low sale prices of the time period and suddenly the appeal of online shopping becomes apparent for folks looking to get their holiday shopping done inexpensively and hassle free.

So with the boom in online shopping, there exists a disparity in sales tax in some instances. This isn’t something that comes up too often in Delaware, the original home base of Host Merchant Services. But many states have sales tax for purchases, and are finding it difficult to compete with the surging online retail business.

While legislation in some states requires sales tax be paid on some online transactions, most sales are still untaxed. In many states that translates into a 5-10 percent price advantage for the online vendor. But it also is a 5-10 percent disadvantage for local brick-and-mortar stores that not only collect sales taxes, but also pay property taxes, employ local residents and support local causes.

Thus there’s been a movement to level the playing field by attacking the sales tax disparity. The Marketplace Fairness Act is the solution to the sales tax disparity. The marketplace fairness act is:

“Marketplace Fairness Act of 2013 – Authorizes each member state under the Streamlined Sales and Use Tax Agreement (the multistate agreement for the administration and collection of sales and use taxes adopted on November 12, 2002) to require all sellers not qualifying for a small-seller exception (applicable to sellers with annual gross receipts in total U.S. remote sales not exceeding $1 million) to collect and remit sales and use taxes with respect to remote sales under provisions of the Agreement, but only if such Agreement includes minimum simplification requirements relating to the administration of the tax, audits, and streamlined filing. Defines “remote sale” as a sale of goods or services into a state in which the seller would not legally be required to pay, collect, or remit state or local sales and use taxes unless provided by this Act.”

Which means out-of-state online, catalog or remote would need to collect sales tax at the time of the transaction, just as local retailers are required to do. For this to happen each state would have to simplify their sales tax laws, making it easier for national vendors to calculate the tax and manage it.

The Marketplace Fairness Act would pave the way for states to require online sellers from out of state to begin paying the sales tax they’ve escaped for years. Senator Dick Durbin (D-Ill.) said “The Marketplace Fairness Act would level the playing field for small businesses by allowing states — if they so choose — to treat brick and mortar retailers the same as remote retailers.” Durbin, who is sponsoring this bill, is best known for authoring the Durbin Amendment, a piece of legislation that caused much controversy in the Payment Card Industry when enacted.

The act passed the Senate. But has yet to be voted on in the House, with all signs pointing to it not passing the House.

There’s been an uptick in media coverage and analysis of this bill. Essentially the verdict is that the increased sales volume from the holiday shopping season is going to push the political infrastructure to once again address the issue of state sales tax and online merchants.

And that raises the most interesting question of all for the credit card processing industry:  Is the global aspect of online shopping going to take a huge step towards pushing sales tax to a federal layer and remove it from the states? 

That’s a very big picture outlook on the issue. But as online shopping becomes more and more prevalent, the issue gains traction. The world is becoming a pretty tiny place due to the saturation and convenience of communication. You can video-call people on the other side of the globe instantly with your smartphone right now. Mobile Wallets and NFC are seeking to make it so that you can wave your magic wand, or iPhone, and pay for things instantly. State based sales tax laws look to fall behind the curve of quick evolving technology. Five, ten, even fifteen years down the line the way we make purchases and the marketplace wherein we make those purchases may have evolved past the scope state sales tax. The Marketplace Fairness Act seems to be just a precursor to a larger movement afoot in the retail sales industry.

Ending Sales Tax Discrimination [2023 Update]

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Today The Official Merchant Services Blog is taking a look at a bill being debated on the U.S. Senate floor this week.  Senate Bill 1832, also known as The Market Place Fairness Act could be the cause of the next big debate in the Payment Processing Industry.

The Law of the Land

In 1992 the Supreme Court ruled in the case Quill v. North Dakota that companies without a “substantial nexus” in the state where their customer lived didn’t have to charge sales tax.  Seemingly favoring Internet companies, this ruling was actually handed down two years before the first Web browser, and three years before Amazon ever sold it’s first book.  This law still stands today, and is the precedent for online retailers not having to pay state taxes on products shipping nation wide. This new bill looks to rectify that apparent “oversight.”

The Act Itself

The Marketplace Fairness Act would pave the way for states to require online sellers from out of state to begin paying the sales tax they’ve escaped for years. Senator Dick Durbin (D-Ill.) said “The Marketplace Fairness Act would level the playing field for small businesses by allowing states — if they so choose — to treat brick and mortar retailers the same as remote retailers.” Durbin, who is sponsoring this bill, is best known for authoring the Durbin Amendment, a piece of legislation that caused much controversy in the Payment Card Industry when enacted.

The National Conference of State Legislatures estimates the lost tax revenue at $23 billion annually. Senator John Rockefeller (D-W.V.) spoke on the issue, attempting to clear up some of the confusion, “To be clear this debate is not about imposing new taxes. Instead it’s just allowing a state to collect taxes they are currently owed under existing law, but are being systemically avoided.” As another benefit to small business owners, the law would only apply to business processing more than $500,000 annually.

Amazon Action

Amazon has been the most vocal in its support of the Marketplace Fairness Act since it’s introduction last year. Speaking before a congressional hearing, Amazon VP of Global Public Policy Paul Misener told lawmakers that the bill would facilitate the collection of one kind of tax that is already due, but goes largely unpaid.  Supporting the argument that it is not a new tax increase.

Opposition

Senator Jim DeMint (R-S.C.) published an op-edin the Wall Street Journal entitled “No Internet Taxation Without Representation.”  In the piece DeMint argues that citizens should not be taxed by governments in which they have no political voice — in this case states where they or their company are not physically based.  I would argue that this is a cost of interstate commerce, which has been reborn as interstate e-commerce.

DeMint does have a point when he mentions the nearly 10,000 state, local and municipal tax jurisdictions businesses would have to comply with nationwide.  He forgets to mention, however, that businesses have access to advanced tax software, such as TaxCloud, which can easily compute the sales tax for any state.

The Verdict

Here at The Official Merchant Services Blog, we see the potential savings this offers to the owners of small businesses nationwide.  The Marketplace Fairness Act provides an incentive for states to simplify their sales tax laws, as well as increase revenue from the ever-booming e-commerce industry. Hopefully this will decrease the sales tax burden shared by many small businesses. It simply makes it much easier for millions of business owners — and in turn the states — to collect the taxes already due. Only time will tell how much impact this legislation will have on e-commerce and credit card processing. We will stay on top of any new developments on this law, and how they affect you.