The Marketplace Fairness Act isn't actually a new tax. It's not even compulsory. It simply allows—but does not require—states to collect sales tax on out-of-state purchases over the Internet. The bill is designed to address a loophole created by a 1992 (pre-ecommerce) court case called Quill Corp v. North Dakota. In it, the Supreme Court ruled that "Congress is now free to decide whether, when, and to what extent the states may burden interstate mail order concerns with a duty to collect use taxes." The upshot was that out-of-state retailers didn't have to collect state sales taxes unless they had a physical presence in the customer's state.I tend to figure that consumption taxes should be levied at the place the product is consumed. While DeMint is right that the proposal will fail to address distortions caused when people drive across state lines for shopping deals, the volumes there involved have to be smaller.
I'll add in the caveats that I'd sent Mitchel for which there wasn't space in the final piece:
Were this implemented in the US, every internet vendor would effectively have to be remitting tax receipts to each of 50 states. That's fine for big guys like Amazon, but it would be murder for smaller online retailers.Josh Barro pointed to one way out of the mess: states willing to run a single less-crazy sales state tax code could implement internet sales taxes across that set of states. But allowing states to require retailers from other states to conform to their particular mess of tax codes...disaster. As Barro there wrote:
Finally, inefficiencies caused by failure to administer an internet sales tax are clearly third or fourth order relative to the massive inefficiencies built into the American tax system. Comprehensive tax reform lowering rates but abolishing the home mortgage interest deduction and applying a fringe-benefits tax so that employer-provided health insurance would not be tax-preferred would be far more effective in fixing whatever ails the American tax system than chasing after internet sales taxes. Were the US to apply a federal VAT while reducing income taxes, that federal VAT should apply equally to online and offline transactions. But I'm really unconvinced that current internet sales tax proposals are worth the effort.
And one state’s picayune rules don’t necessarily conform to other states’ equally picayune rules. Both New York and New Jersey apply sales tax to candy but not to most other food, yet they have different definitions of what “candy” is. A Twix bar is taxable candy in New York, but in New Jersey it’s a non-taxable baked good. An online retailer has to keep up with this morass not in just one state, but in all of them.I'd taken this as excellent reason for America's adopting New Zealand's tax code.
More dauntingly, there are over 8,000 local sales taxing jurisdictions in the country, again with their own rates. New tax jurisdictions are created frequently and their boundaries do not necessarily conform to Zip or even Zip +4 boundaries. A few states, such as New York, even allow local jurisdictions to determine their own tax bases. One particularly relevant example for online retailers is that New York State does not charge sales tax on clothing and footwear under $110, but most counties in New York do – and sometimes a city has different sales tax rules than the county it is in.
Back to Hall's piece:
Surprisingly, Kevin Hassett disagrees with Crampton and DeMint, telling PCMag that "the conservative tax people I know think the Senate bill is a pretty good idea." ...I think Kevin Hassett somewhat understates the complexity induced by 8000+ potential ever-changing local sales tax jurisdictions that disagree on whether a Twix bar is candy, and of parsing 1,437-word memos on whether an ice-cream sandwich is or is not taxable in Wisconsin.
Hassett explains that the current status of Internet sales taxes is crazy from an economic point of view because it disadvantages local businesses relative to non-resident vendors in a way that is highly distortionary.
Hassett also addresses the criticism that this tax will be a nightmare for small businesses to comply with, given the potentially thousands of different tax rates, laws, and jurisdictions to navigate. "All those jurisdictions are imponderable to a human brain but are pretty easy for even the simplest computer programmer," he points out. "If small retailers have to do that, there's probably an app for that that you can buy for a quarter…Put it this way, these are people who are savvy enough to set up an Internet business, but the argument is that we can't ask them to withhold sales tax because they can't figure out the computing end of that? That seems like a stretch to me."
The problem isn't just knowing what tax rates are in place in which jurisdictions; it's figuring out which of your products wind up being subject to which taxes in which places. Easy enough for Twix bars: set up the spreadsheet that says where it's taxable. Suppose you stock some local producer's ice cream sandwich as one of your thousands of products and find out that whether it's taxable in some jurisdictions depends on how it conforms to memos like Wisconsin's. I just can't see a 25-cent app being able to tell whether that ice cream sandwich is taxable.
Hassett is right that it would be dead simple in a world where the different jurisdictions only varied in the rates they charged over categories that were identically defined. But that sure isn't America.
Update: Imagine that you're a state legislator and some big local producer comes in wanting protection from out-of-state products. Now it's illegal to prohibit the import of out-of-state products: Commerce Clause. But you could set up a special set of state tax codes around that product that are just such a darned mess to figure out (tax the 1,437-word memo as example) that nobody from out of state can figure out what tax to charge. And then sue the pants off anybody who fails to comply. Pretty soon, nobody ships that stuff to your state. Ta-dah.
Update 2: The Bill does go some way towards reducing complexity. Participating states must have their local tax authorities on a common base, even if rates can differ. But I can't see anything prohibiting things like Wisconsin's ice-cream sandwich tax complexity. They'll have to provide a database listing the rates and exemptions for things, but somebody from out of state still has to figure out just where his ice-cream sandwich sits. Caveat: I'm not a lawyer.