South Dakota does love litigation.
This Session, at the behest of the Governor, the South Dakota Retailers Association, and the state Chamber of Commerce, our Legislature passed Senate Bill 106, the “Main Street Fairness Act,” to require online retailers to pay sales tax on items sold to South Dakotans. Set to take effect tomorrow, SB 106 wouldn’t have Andy Gerlach shaking your sister in Minnesota down for 4% (4.5% as of June 1!) on those couple dozen potholders she knits and sells on Etsy to her Sioux Falls friends. SB 106 redefines the tricky concept of “nexus“, or taxable presence, to net remote sellers who sell over $100,000 worth of product to South Dakota buyers or make over 200 sales in South Dakota.
As I reported from the House State Affairs hearing on SB 106, prime sponsor Senator Deb Peters (R-9/Hartford) and other supporters were spoiling for a lawsuit. They wrote SB 106 like a legal brief, with eleven findings arguing to overturn Quill Corp. v. North Dakota (1992), in which the Supreme Court said states can’t impose sales and use tax on retailers who don’t have physical storefronts in their states.
The state fulfilled its own wish Thursday, filing suit in our Sixth Circuit against Wayfair, Systemax, Overstock, and Newegg. South Dakota contends that it could recoup $48 million to $58 million a year in online sales tax from remote sellers.
The Retail Litigation Center, which is made up of several big-box stores who also sell stuff online, says yay, South Dakota:
Last year, in his concurring opinion in DMA v. Brohl, Justice Kennedy asked the legal system to develop a case so that the U.S. Supreme Court could reexamine the Court’s holding in Quill. The State of South Dakota has done just that.
We applaud South Dakota for developing litigation that should ultimately enable the U.S. Supreme Court to reconsider its decision in Quill, which does not reflect the reality of 21st century technology. Today’s retailers can be virtually ‘present’ everywhere. A legal rule that artificially distinguishes between retailers with physical stores inside a state’s geographic borders and without such stores is an anachronism today. We urge South Dakota’s judiciary to act quickly to facilitate resolution of this important issue [Deborah White, president, Retail Litigation Center, press release, 2016.04.28].
To double our court fun (Attorney General Jackley, when will you have time to investigate Select Management Resources?), the American Catalog Mailers Association and e-retailers’ association NetChoice (which includes Overstock, Lyft, eBay, PayPal, Yahoo, Facebook, and Google) are suing us back:
“South Dakota is showing wanton disregard for established Supreme Court precedent,” said Hamilton Davison, president and executive director of the ACMA. “This statute is blatantly unconstitutional and flies in the face of law that has been settled for decades. States simply don’t have the authority to pick and choose the Supreme Court decisions they will follow.”
…“This is equivalent to malpractice,” said Davison. “It represents exactly the type of bad governance that makes Americans cynical of big government. While US Supreme Court precedent gives Congress the right to make new rules for interstate commerce in this area, State legislatures do not have this right” [NetChoice, press release, 2016.04.29].
In addition to its concern for stare decisis, NetChoice sobs that coding online shopping carts to calculate 50 different state sales tax rates and writing checks to fifty state capitals every month could cost a mid-size retailer “$80,000 – $290,000 in setup and integration costs and $57,500 to $260,000 in ongoing maintenance, updates, audits and service fees charged by ‘free’ software providers.”
Both of these cases are in South Dakota’s Sixth Circuit. By the time they work their way to the U.S. Supreme Court, the Senate should have finally worked up the ambition to confirm a ninth Justice to bring the Court back to full strength… unless President Hillary Clinton inspires Senator Mike Rounds to come up with some new bad argument for not doing his job for four more years.
After railing on abortion laws designed to create test cases in the US Supreme Court, I now turn around at the risk of sounding hypocritical and say that this law designed to create a test case is a good one.
The difference is that abortion cases seek to overturn a constitutional right which supersedes any right of Congress to act, while this tax case deals with an area of law where congress has authority to act but has failed to do so. Maybe the Supreme Court will side with states on this one, since congress is completely worthless.
I can’t resist- South Dakota contends that it could recoup $48 million to $58 million a year in online sales tax from remote sellers.
I’m guessing South Dakota could have saved 100 + million if they had kept one eye on the Joopster raiding the chicken coop. They love litigation so much,hell,why not sue him and get the money back?
Horsefeathers. The plaintiffs should remove the case to federal court. Retailers are little more than doomed mark-up middlemen. The nation is vastly over-retailed and the retailers and malls will continue imploding. A minor taxing change will not alter the retailers fate. Internet retail won. But the taxing change will embolden the taxaholics in SD state government. It’s easy to predict, if they win this battle, that they will soon craft differential sales tax rates for residents and gouge non-residents.
To be clear, Congress should’ve acted on this and the Quill decision is crap. The most important nexus is the consumer. No consumer purchase–no sales transaction to tax.
But it is interesting to me that Republicans in our state are backing a new tax with gusto. So much gusto that they have set this whole years long process up for a court battle all the way to SCOTUS.
But the tax will not be paid by the online retailers. It will be passed on to consumers–citizens of our fair state. Republicans are trying to institute a new tax on our citizens and I haven’t heard anything about how we should not be adding more taxes to our overtaxed citizenry. Where is the faux outrage over tax increases that we heard during the teacher pay debate?
I assume that part of the reason for the silence is most people agree as I do that not taxing internet sales gives an unfair competitive advantage to out of state online retailers over in-state brick and mortar businesses.
But where is our vaunted Congressional delegation on this issue? Why is the do-nothing NoBama Congress not held to account for this untenable situation? Why do we have to resort to unconstitutional laws set up for lawsuits that will cost us taxpayers millions and take years with an uncertain outcome?
John, wouldn’t a differential tax rate for residents and non-residents get knocked down immediately as a violation of the Commerce Clause? States can’t raise barriers to out-of-state businesses without applying them equally to in-state businesses, right?
I am intrigued by the notion that the Internet could get rid of retail middlemen. But will retailers really disappear, or is it just that they will evolve into Amazon, the middlemen who build and maintain the electronic infrastructure that connects producers and customers instead of the traditional brick-and-mortar stores? And if we overturn Quill, don’t e-retailers like Amazon and Etsy become all the more essential to all the small producers who will enjoy having a big, experienced middleman to handle all the sales tax collection on top of all the other technical details of taking orders and processing credit card payments?
Everybody wants something for free. It’s the nexus of that Mr. Sanders fellow’s campaign. Everything for free for everybody!
If there is any tax on distant transactions, it should be a federal tax 90% refunded to the states based on population. The articles of confederation failed at least partly because states were taxing everything that moved across statelines. The commerce clause is in the constitution to prevent such sales and transaction taxes.
State sales taxes on distant transactions are already a fouled up mess. Expanding them would make even more foulups. The system would require huge databases if it is a state consortium. I wonder if South Dakotans want the revenue departments of thirty states knowing what they bought, when they bought it, how it was delivered and whom they bought it from.
Most retailers will not see any change at all in their business if a distant transaction tax is 100% effective. They aren’t losing business because there are local taxes, they lose business because their prices may be two to five times prices online. They also lose business because they just plain don’t have the merchandise on hand that is available in a day or two via the internet. And many merchants will charge a special transportation fee if they must order it themselves.
Before the retailers get all hot on this, they better look in a mirror first.
The “nexus” arguments are enhanced legal fiction based on a wretched twisted court decision reeking of local special interest.
Incidentally, the merchants would also like to tax you for even reading this online.
Fair Tax program? I tax rate everyone pays the same tax in the store or on-line, weather in New York, or Aberdeen?
Douglas Wiken:
“They aren’t losing business because there are local taxes, they lose business because their prices may be two to five times prices online. They also lose business because they just plain don’t have the merchandise on hand that is available in a day or two via the internet. And many merchants will charge a special transportation fee if they must order it themselves.”
So very true. As the spouse of someone who is petite, this is a constant frustration. We can stop at 10 stores when shopping in Sioux Falls and 1 or 2 may have this size range. Brookings really has nothing. Frustrating and we would much prefer to shop in town or in South Dakota, but…….
I’m not that strange of a size but you would be surprised how rare it is to find men’s jeans with a 36″ inseam. I’m not that tall but many stores carry up to 34″ and if you are really lucky, and dig through the piles, you might find them if the shelves have just been stocked. They are always available online delivered for free in a few days so long as total purchase is > $100.
I kind of like not paying sales tax.
These same tax & spender politicians scream fairness even as they target tourists coming through SD who are taxed without representation.
In the last 14 months alone “Republicans” in Pierre “led” Democrats in increasing budgeted state spending by OVER $306,683,875.00 (2015’s SB55, HB1208, and 2016’s SB172). They expanded property taxes, increased the vehicle excise tax by 33%, vehicle registration fees by 17-20%, fuel taxes by 27% & +75%, license plate fees by 20%, motorcycle registration fees by 24%, motor home registration fees by 20%, wheel taxes by 25% & 275%, title fees by 100%, lien registration fees by 100%, title transfer fees by 100%, boat license fees by 200%, sales tax by 13%, and numerous other administrative fees by 33-100% (2015’s SB1, 2016’s HB1005 & HB1182).
These tax and fee increases are hitting senior citizens who haven’t had a Social Security increase in five years! On farmers who have seen production costs explode as commodity prices withered.
SD does NOT have a revenue problem, we have a spending and a priority in spending problem!
The corruption we have all witnessed? The crony-capitalism? Giving them more tax payer dollars is like throwing gas on a fire.
It’s so nice that clothing and food aren’t taxed in MN :)
Our roads and bridges are crumbling and there is a teacher crises in progress.
What in the budget would you cut Stace to pay for these two things? It’s nice to say we have a spending problem-but get specific.
Mr. Nelson is insaner than most, and can’t even understand the most basic math. If Mr. H makes it to the legislatures he will put it in terms that Mr. Nelson can understand back there in Fulton. Where there is no Dairy Queen. I am not surprised.
Owen, the annual $600 million they give in business tax breaks might be a good place to start. Just sayin
@Owen, you rail about how much you cannot trust Republicans and yet even in the midst of the EB5 and Gear-up scandals, you believe without questioning that even though the primary reasons we pay our taxes (education and roads), there was not enough money in a $4.5 BILLION budget to properly fund them?!
Read the bills I cited above and then get back with me about how all those crony-capitalism expenditures were needed over education and roads.
Explain to me how all those seniors who haven’t received an increase in Social Security in 5 years are supposed to make it.
All that “Republican” cronyism you support Owen? That is what bleeds funds away from our core infrastructure needs (education, roads, etc).
Mr. Nelson, wasn’t that HB1182 the teacher raise bill? The population wanted to jack that tax on you and me. I was pissed off about it too but golly. The other option would be to just shut your school down.
@Grudz you really remind me of a certain lobbyist.
South Dakotans pay taxes for our core infrastructure needs (education, roads at the top of the list). The biggest con ever pulled off is convincing voters that we don’t have enough money in a $4.5 BILLION budget for the main reason we all pay taxes.
They under fund those core infrastructure needs because as the defeated “economic development” bill proved a couple years ago? Voters are unwilling to allow tax raisea for the establishments crony-capitalism.
The tens of millions funneled to GOED (see the bills cited above)? Would have funded much of what was needed for the education crisis Daugaard has created over the last 5 years.
You never answered my question Stace. How you going to fix roads and bridges?
HB1182 was the bill to try to fix the problem in education of teachers leaving the state or just not going into teaching.
You keep whining about spending too much but you offer no solutions. You get rid of HB1182 and no more raises for teachers or attracting young people into the profession. If you reverse SB1 from 2015 how to you propose to fix or road and bridges?
The Social Security recipients were hoping to get help from a proposal from that arch conservative Elizabeth Warren with this.
http://www.huffingtonpost.com/entry/elizabeth-warren-social-security-increase_us_563a722ce4b0b24aee48a970
@Owen How about funding our core infrastructure needs (education, roads, etc) before fully funding the Office of Exonomic Development, and the other crony-capitalism programs that voters can do with out?
The budget was $4.5 BILLION, Owen!
Did you wen bother to read the above bills? Did you bother to see the millions directed to GOED?
The answer is not to take more of the tax payers’ money, and create more government.
Will Main Street and the South Dakota legislature win the battle over sales tax equity? This movement toward leveling of the retail playing field would increase state sales tax revenue and potentially add a few more retail jobs. I don’t agree with the online retailers estimates for programming and maintenance costs but if they insist on spending this much I am available. Let’s hope the Supreme Court has improved its understanding of technology since the Quill case.
We need a state corporate out-of-state income tax. If out-of-state companies doing business here make a profit, it is returned to them untaxed by South Dakota. They pay the tax to their state. If South Dakota taxed it here, they wouldn’t owe it in their state. Buy something from Walmart and it goes down to Arkansas to be taxed. Buy a new Chevy and it goes to Detroit to be taxed. We need to keep it here.
If South Dakota is so in need of revenue………….. I have a great idea………… LET’S PASS A CORPORATE INCOME TAX like all the other civilized states have done. SEE problem solved!!!!
So in other words, our entire scheme to increase teacher pay through a greater dependence upon sales taxes is further dependent upon a chanced successful involvement (which is totally dependent upon Justice Kennedy’s comment in a prior case) in a Supreme Court decision which the Court has yet to have decided to review and one we can only hope will rule in South Dakota’s favor if and when it does…..That’s generally called putting the cart ahead of the horse or counting your eggs before they are hatched in most parts of South Dakota….. Last I checked….
But there is one silver lining for our wishful political leaders in South Dakota, however. The same political leaders I might add who magically found $ 46 million dollars in the next state budget to payoff some state obligations early, while they increased sales taxes on the working poor and the poor to fund additional monies for property tax relief for the ownership class and as a conciliation prize for education as well….And that is that, the Court has ruled in the past on issues of civil procedure that long arm statutes which require out-of-state businesses to conceivably be defendants in plaintiffs’ cases in the plaintiffs’ states’ court systems could by analogy use this or similar logic to justify allowing states to collect sales taxes from out-of-state businesses who conduct business with a given state’s residents (using the long arm guideline logic) even without a store front in that state, however…. We we will have to see…
This differential sales tax idea is also a very intriguing concept. It has a cousin relationship with “bed and booze” taxes ( in order to justify its legal reality) with the former tax (bed) having a propensity to tax out-of-staters more than in-staters. The potential reality of this differential sales tax alone would in my estimation be the one good argument the defendants in a potential South Dakota sales tax case would have through a “taxation without representation” argument….That said, I wonder if our political leaders in Pierre will ever have a “differential” idea for out-of-state RV owners who are registered in South Dakota someday, too?…. Probably not…. If some how out-of-state businesses or corporate citizens could vote and or contribute politically then there would probably be less of an interest right now in Pierre in taxing these out-of-state businesses’ transactions with the South Dakota voters, I mean residents or customers….You only need to look at the over $ 800 million of current exemptions in the State’s current sales tax system with some in-state business transactions to follow my last assertion, if you catch my drift…. How come the poor and working poor are not exempted? They seem to be treated as out-of-staters or outsiders in their own state….;-)
How about a corporate and a state income tax like other civilized states?
@Stace. Ok 2015 1208 and SB172. On the lists what do you want to take out to save money? Education, law enforcement? $4,319,861,165 for 2015 and $4,566,007,565 for 2016.
What do you want to take out of these budgets?
Don’t see what the problem with SB55. Even your far right friends voted for this bill.
If there is honest waste in those budgets Stace I’m for taking that out of the budget. Now can you find enough waste in those budgets Stace to fix our roads and bridges plus end the crisis with education then I’m for you Stace.
@Owen Our state is mired in rank corruption with the EB5 and Gear-Up programs disgusting everyone that pays attention to the details as the layers of obfuscation are peeled back, but you are satisfied that $4.5 BILLION in state budgeting, with no details where that money is actually being spent, Is all necessary and legitimate government expenditures?!
Anyone that has ever dealt with any professional budgetary process is acutely aware of how conspicuously lacking in detail the annual budgetary bill is!
The budgetary process should start with properly funding the core infrastructure requirements that we all pay taxes for, then work outward to non-crucial crony-capitalism programs (pork).
The corrupt crony-capitalists know that they cannot go to the voters and ask for more money for the GOED like they did several years ago. So! Instead they underfund roads, education, etc, because they know thy can con people like you to think that there isn’t enough money for roads and education in a $4.5 BILLION DOLLAR BUDGET!
Even when the details are in black and white? Even when the bill is pointed out to you? You don’t even catch the tens of millions of dollars dumped into the GOED even as they claimed they didn’t have enough money for education!?
Putting words in my mouth again Stace. Of course I want accountability as to where the money is going. I’m sure everybody does. I agree there is rank corruption with EB-5 and GOED.
But to cut bills like SB1 and HB1182 first before the money is found is ludicrous. The bridges and roads in out state and in Hanson County need to be repaired and there is a serious crisis with education in this state. A problem educators and Democrats have been pointed out was coming for decades.A problem that your Republican Party has ignored.
Adding a half-penny tax is a regressive tax-no doubt- and it wasn’t the best solution.
But mention a corporate or state income tax and people like you go nuts.
South Dakota has problems that only money can fix. I totally agree that waste has to be found and eliminated and we have to be good stewards with the money. I’m in total agreement with you on that Stace.
Just remember that GOED is a Republican idea. It might be good or bad and if it needs to be shut down and the money reallocated, fine.
But to cut funding for roads and education first is just ignorant.
@Owen What part of $4.5 BILLION do you not understand!? It was never a case of finding money. It has always been a case of priorities in spending and spending on pork South Dakotans can live without!
GOED by its very nature is NOT Republicanism! Republicans believe in the free-market, limiting the size of government, keeping government out of the free-market, and in doing only for the taxpayers which thy cannot do for themselves! The GOED is crony-capitalism and the antithesis of Republicanism.
@Owen Please cut and paste where I said cut funding for education and roads. What part of find our core infrastructure needs first is hard to understand or translates to “cut education and roads?”
@Stace. Ok you don’t want to cut funding for roads or education.
SB1 has been part of the budget for a year and HB1182 is now in this years budget. What in the current budget of $4,566,007,565 do you want to cut to keep funding for roads and education?
I might with you
@Owen Moses! Our SD budget should be the same as your own personal budget. Core needs funded first, all the pork wants funded last. Stop buying Into the false narrative that we didn’t have enough funding for education and roads!
I forget the exact number they dumped into the GOED, around $42 MILLION in increased spending in one of the bills.
Mr. Nelson, how many times did you vote against the funding for the Veterans’ department and poor people?
Stace why are you a republican if you sound like that.
@Grudz You keep hiding like the cockroach you are. Veterans across SD , who pay attention to politics, know how I have performed my duty. How about you chicken excrement? You appear to be an oxygen thief.
@Moses I’m an actual conservative Republican who loathes crony-capitalism as the Liberty stealing betrayal to our state and country, that it is.
stace-your inability to maintain decorum here really disqualifies you from holding office. same goes for schoenbeck and gosh in their public dust-up that directly damaged the Indian position on the Harney Peak name change.
you could say the same about me but I don’t have any such irons in the fire nor intend too. you have already offended me once about the death of my son. public officials are held, rightfully so, to a higher standard of behavior in our civil society.
Nick, Jack, I have trouble finding pants my size, too! It’s the waist that gets me: I’m not 30 or 32 but 31 (with some variance upward around Thanksgiving).
Owen, I’ll affirm Stace’s point on two counts:
1. Stace helps us counterprogram the propaganda the SDGOP peddles about Democrats being the tax-and-spend party and about Republicans being the party everyone can trust not to raise their taxes. The Republican I’m running against, Al Novstrup, and the Senator I’m seeking to replace, his son David, voted for every one of those bills that Stace cites, with the exception of David Novstrup’s nay on this year’s HB 1182, the sales tax for teacher pay. We can have a rich debate about the merits of the programs those tax increases were meant for (I could easily have been persuaded to join David in voting against HB 1182, but for reasons opposite his, because I felt HB 1182 did not provide enough funding for K-12 education and gave too much in unnecessary tax breaks to commercial property owners). But Stace makes clear that South Dakota Republicans will raise your taxes.
2. Not only will Republicans raise your taxes, but they will allow a culture of corruption to grow and fester for 40 years that means more of your tax dollars disappear into waste and crony pocket-padding. Sure, if we had Democrats holding absolute power for two generations in Pierre, we might see similar corruption. But right now, we have a Republican regime taxing and not watching the spending their friends do, meaning Rick Melmer gets six figures for being an Indian education expert (ha!), Scott Westerhuis builds a basketball court for his kids, Richard Benda takes clients to a go-go bar in Manila, and some young Republican jerk in Jason Gant’s office steals an original state flag. You want to stop that? You throw out the current regime, you put in new people, and you watch them like hawks.
We might still have to raise your taxes, but we’ll have campaigned on a promise to spend that money wisely and strictly in the public interest. Our integrity will be at stake.
Cory – Oh the days when I was only that big.
Cory Heidleberger writes:
“2. Not only will Republicans raise your taxes, but they will allow a culture of corruption to grow and fester for 40 years that means more of your tax dollars disappear into waste and crony pocket-padding. Sure, if we had Democrats holding absolute power for two generations in Pierre, we might see similar corruption. But right now, we have a Republican regime taxing and not watching the spending their friends do, meaning Rick Melmer gets six figures for being an Indian education expert (ha!), Scott Westerhuis builds a basketball court for his kids, Richard Benda takes clients to a go-go bar in Manila, and some young Republican jerk in Jason Gant’s office steals an original state flag. You want to stop that? You throw out the current regime, you put in new people, and you watch them like hawks.”
This and all the sunshine laws we can get. So many journalists over so many years have struggled to get very basic background information and so often find that it is essentially classified.
@Leslie I don’t know you. From your posts it’s obvious that your Leftist “tolerance” does not extend to conservatives like myself. I have no idea what you are talking about it who your son was. Any umbrage you have chosen to take was without malice on my part. You are entitled to your opinion; however, if my candor is a disqualifying trait? Your selective opposition to such would have excluded a majority of our Founding Fathers. I am as different from Lee Schoenbeck as Cruz is to Boehner. Which is huge in the real dimensions of the political spectrum. Your real loathing is for the letter that represents our voter registration which in itself is an indictment of your character, not mine.
@CAH Crony-capitalists who increase taxes and government spending are by their very actions, NOT Republicans.
Disclaimer–My son works part-time for Edie Bauer. Christmas and birthdays he has given me some denim jeans. Edie Bauer has the in-between sizes. My waist size is not an even number. One is too tight and the next is too loose. Bauer pants fit just right. They are however over-priced as far as I am concerned. An online company is Buddy’s Jeans. They have intermediate sizes and are actually all made in the USA. Again, Not cheap. Wrangler, etc are made in who-knows where land…as is Edie Bauer stuff.
@Stace—but they aren’t Democrats either. They are corrupt crony capitalists whom we both want to stop.
@Douglas: Perhaps we are hitting on the new unserved constituency: men with odd-number-sized waists! Now, how do we craft a bill to solve this problem? How about we exempt from SB 106 any seller that produces custom size pants?
What did I miss? 1/2 cent June ist? Is that in addition to the additional cent for the teachers and property tax relief?
wangler old timers are made in mexico of USA materials. they come in all the odd sizes. about 20 bucks. heavy duty. they are great. levis 501s are nothing like the old days:)
nice spin stace. not even close. bull in a china shop. look it up. its in the blog somewhere.
http://www.huffingtonpost.com/entry/koch-brothers-dark-money_us_57212f1ae4b0f309baefac35
stace was it you or don coyote or barry freed that find HUFPO as unreliable?
http://prospect.org/blog/checks/charles-koch-bemoans-money-politics-lobbies-against-reform
http://www.prwatch.org/news/2016/04/13093/koch-alec-agenda-pittsburgh
Lanny: the HB 1182 half-cent for teacher pay and property tax relief kicks in June 1. One and the same.
My bad, there were so damn many sales tax bills in this time, that I was confused. I thought the teacher pay/property tax reduction, or should I say the property tax reduction/teacher pay one was for a full penny.
No harm, no foul, Lanny. The Democrats offered a full-cent plan, SB 151, that would have zeroed the food tax and taxed income groups less regressively. That plan, naturally, went nowhere, since Democrats wrote it.