Congress should consider small-business exception to internet sales tax

To the great disappointment of many small business owners and supporters of federalism, the Supreme Court’s recent decision in Wayfair v. South Dakota opened the door for states to impose an internet sales tax, even on businesses that have no physical presence in their borders. Because Congress has the constitutional authority to regulate interstate commerce, it is now considering ways to address this newfound taxing authority.  Congress must take this opportunity to use its power to protect small businesses from these taxes and perhaps to at least work to slow the process down while a long term solution is explored. The strength of the American economy depends on it.

Prior to the Supreme Court’s ruling in the Wayfair case, retailers were only required by law to collect and remit state sales taxes if they had a physical presence — such as storefronts, warehouses, or factories — in that state. The so-called “Quill Standard” was the result of a previous Supreme Court ruling in Quill Corp. v. North Dakota (1992).

{mosads}But South Dakota, as well as a number of other states, asked the high court to overturn Quill, targeting the online home-goods retailer Wayfair and two other large online retailers with millions of dollars of sales to South Dakotans businesses, arguing that the state was missing out on revenue from online transactions, even though the companies have no physical presence in South Dakota. The Court agreed that the large retailers who were targeted by South Dakota were not protected by the Quill physical presence standard, but in overturning precedent the Court may expose millions of that protected small businesses to the from taxing authorities in other states.

The Wayfair ruling paves the way for states to reach outside of their own borders when they collect taxes. This means that a small business in Texas with just a handful of single customers in New Jersey may soon have to comply with the Garden State’s taxes — and many small business owners regard this development with concern.   The fear for many of us is that the power to tax outside of state’s border will only be the beginning, and will be followed by the power to regulate businesses outside their jurisdiction.

One small business owner Chad White, the owner of Class-Tech Cars, a Virginia-based small business that sells reproduction automotive parts online, recently testified before Congress that he has a part-time employee who — before the Wayfair decision — was able to collect and remit all applicable sales taxes in just a few hours each week. However, White said the ruling in the case “gives me, and millions of small businesses across the country, pause as we consider what lies ahead for Internet-enabled entrepreneurs.”

White, who has just eight employees, expressed trepidation about the sheer volume of paperwork complying with tax jurisdictions wherever they happen to have a customer would require. If they fail to comply or make a mistake, they could be subject to audits or other legal consequences in states in which they do not operate.

White also said that small business owners like him are concerned about what an internet sales tax would mean for their businesses and for their employees, such as the risk of audits in “far-away states,” as well how they will ensure they are in compliance in thousands of different taxing jurisdictions across the country.

Subjecting small business owners to burdensome taxes may bring some revenue for states, but at the high cost of stifling growth and limiting opportunity. Congress could pass a small business exception that would differentiate eight-person businesses such as Chad White’s from retail giants, allowing those smaller companies to do what they do best: serve customers, and create jobs and hopefully grow into new robust competitors.

Prior to that hearing, FreedomWorks joined with the National Taxpayers Union and a number of other conservative organizations applauding the committee for moving to address the issue.  We suggested that Congress needed to take action to protect small businesses with at least a pause in any imposition of sales tax burdens. The letter argued: “First and foremost, Congress should act to stop a mad dash for new cross-border power. Then it can do the difficult but necessary work of establishing a responsible national approach to the vital questions surrounding taxes and the internet.”

Passing legislation that prohibits an internet sales tax would be the best course. But if there isn’t enough political will in Congress to do the right thing to protect taxpayers and consumers, which is too often the case, members should listen to the concerns of their constituents who are small business owners and craft legislation that immediately protects these crucial entrepreneurs from onerous taxes and helps them thrive and sets a responsible tax system.

Jason Pye is director of public policy and legislative affairs forFreedomWorks, a Washington, D.C. non-profit that advocates for limited government.