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Print E-mail del.icio.us 65 comment(s) - last by SilthDraeth.. on May 16 at 10:21 AM

Retail giant attacks statute’s constitutionality

Recent changes to New York’s tax laws have internet retail giant Amazon.com striking back against New York state legislature and its new $122 billion budget.

Amazon’s complaint stems from a revision in New York state tax law that changes the definition of businesses obliged to pay state sales tax. Under previous code, Amazon was not obligated to pay sales tax for New York customers because it did not have employees or offices in the state of New York, and it did not actively solicit New Yorkers’ business. Under the new tax code, however, Amazon must to pay sales tax because it “directly or indirectly” pays New York-based entities for referring customers to the site through its popular Amazon Web Services and Associates Programs – effectively classifying Amazon’s “solicitors” as an appropriate physical presence.

Seattle-based Amazon called the new tax law “unconstitutional,” claiming that New York state legislators unfairly targeted it. In its complaint, filed (PDF) in last April, Amazon says New York’s new tax statute violated the Commerce and Due Process clauses of the United States Constitution, in addition to other clauses, which chiefly prohibit taxing out-of-state entities and “overly broad and vague” presumptions of “solicitation.”

Amazon’s accusations of being unfairly targeted are supported by the fact that the revised statute is commonly referred to – even by state officials – as the “Amazon Tax.”

At stake, both in the state of New York and elsewhere, are the supposedly millions of dollars in uncollected “use” taxes, which state tax authorities have no way of tracking. Taxpayers are supposed to tally up out-of-state purchases for tracking on April 15, however few people, if anyone at all, choose to do this.

The New York Times reports that the state expects to collect at least $50 million from the tax code changes.

Consequently, the seemingly voluntary “use tax” is a growing problem in a 21st century world of e-commerce and globalized business, as taxpayers are opting less and less to buy from business within the state. However, out-of-state businesses are protected from interstate taxation by the Supreme Court’s 1992 Quill v. North Dakoka decision, which found that out-of-state businesses are not obliged to pay taxes to a state in which it doesn’t maintain a significant “nexus” of operations.

Representatives for neither Amazon.com nor the New York State Department of Taxation would comment on the suit; N.Y.’s taxation department may choose to provide further comment after it has responded to Amazon’s complaint.



Comments     Threshold


Just knock it over...
By mmcdonalataocdotgov on 5/6/2008 11:02:35 AM , Rating: 5
As the article states, if the "statue" is unconstitutional, just wait till dark and go saw its head off, like it was Jedediah Springfield or something. What's the big deal?

=\




RE: Just knock it over...
By Moishe on 5/6/2008 3:08:34 PM , Rating: 2
hahaha I was going to comment on the use of "statue"... Once I thought... oops, the second time it became clear.

The word is "statute"


State taxes.
By Denithor on 5/6/2008 11:45:41 AM , Rating: 2
What I don't understand is, why don't businesses just collect the taxes due in the state where they do business regardless of where the buyer is located? So when I buy from Newegg.com (located in CA) I pay CA sales tax instead of NC sales tax (where I live). That's how it works when I travel and buy something out-of-state (even if it will be used in NC I pay the local sales tax on the item).




RE: State taxes.
By just4U on 5/6/2008 12:09:10 PM , Rating: 2
Or they could break it down so that every state gets it's piece of the pie.

Business pays a lowered state tax where it's located
Consumer pays the difference in their local state

If they did it right the only added cost would come from the administration side as they tried to keep tabs on it all. Would hopefully mean no one really loses out including the consumer.. Sine we all know that if a business gets hit with new taxes they just pass it on anyway.


RE: State taxes.
By darkpaw on 5/6/2008 1:41:33 PM , Rating: 1
For small businesses, tracking taxes for even one state can be a big burden. Trying to do it for everywhere would be impossible.

The current system is not bad, its based on the fact that you pay taxes at the physical location of the store if you shop there to support the local economy. If you are shopping online and buying something from another state, you are not using any services provided by that state, so why should you pay taxes there? Conversely, that business is not using any services in your home state, so they have no tax liability.

There is a reason local taxation does not cross state lines and even though I don't do a ton of shopping online, it should stay that way.


RE: State taxes.
By Oregonian2 on 5/7/2008 9:39:20 PM , Rating: 2
That would be taxing interstate commerce and as I understand things, that's not legal for states to do. When a company has facilities in the "home" state, then it's taxable because you're buying from a company in your state, and therefore it's not interstate commerce, but a local purchase that's just being delivered from out of state.

I'm in Oregon (duh...) where we have no sales tax at all. I'd be really p***** if I had to pay California sales tax to newegg.com. I'd be even more so if I had to pay California, New Jersey, Tennessee, AND the taxes from all other states where Newegg has warehouses. Might double the price! Ordering from walmart.com would require paying the sales tax for probably more than thirty states on a purchase if taxes were based upon where the company is. Saying where the HQ is doesn't work -- say it's IKEA.com where HQ is in Sweden.

When I visit Washington state nearby, as a visitor, I can purchase things and fill out a form that keeps me from having to pay state sales tax there -- even when buying in person there! Now, I have to show ID and sign something about my taking it home with me to Oregon (where we've no sales tax at all, I repeat -- even though our state government would like to add that tax to their sources of money). Obviously doesn't work for food, but for hard goods it works okay, although one has to ask the seller if they've the forms to do that. They're usually used to it (at least those off I5, the main interstate that passes though north-south).


Well, As They Say
By Tedtalker1 on 5/6/2008 8:02:28 AM , Rating: 2
There are only two things in life that are certain.
Death and taxes.




RE: Well, As They Say
By AlexWade on 5/6/2008 8:42:25 AM , Rating: 2
If you drive a car, I'll tax the street.
If you get too cold, I'll tax the heat.
If you ride the bus, I'll tax your seat.
If you take a walk, I'll tax your feet.

-- Paul McCartney in a Beatles song Taxman.


RE: Well, As They Say
By SteelyKen on 5/6/2008 3:58:26 PM , Rating: 2
That was George Harrison.


It is just a beginning
By dickeywang on 5/6/2008 8:18:01 AM , Rating: 2
I hope I'm wrong about this but I see no reason other states wouldn't follow NY on this issue if Amazon can not win this case.
If states start to collect taxes from stores like Amazon which clearly locate outside of the states, we can kiss good-bye to many online stores for sure.




RE: It is just a beginning
By DaveLessnau on 5/6/2008 10:58:55 AM , Rating: 2
I'm not a tax expert, but I think this kind of thing has been fully settled in the courts for decades. If an entity doesn't have representation in the state, then the state cannot tax it. It doesn't matter if the state finagles with things like:
quote:
...“directly or indirectly” pays New York-based entities for referring customers to the site through its popular Amazon Web Services and Associates Programs – effectively classifying Amazon’s “solicitors” as an appropriate physical presence.

Corporate Amazon has no representation in the state, so the state can't tax it.


RE: It is just a beginning
By Spivonious on 5/6/2008 2:30:52 PM , Rating: 2
Exactly. "No taxation without representation." Unless Amazon employs people living in New York (who would therefore have a say in what taxes are passed into law), Amazon definitely will win this case.


You guys are strange
By aos007 on 5/6/2008 1:49:07 PM , Rating: 2
I find you Americans strange. You are SUPPOSED to pay taxes on anything you buy to the state you live in. And an advanced contry like US has all the technological means at its disposal to enforce it, yet it doesn't. What gives?

Here in Canada all provincial governments have been very diligent in signing deals with feds to get their taxes collected in addition to federal taxes in places they usually don't have the jurisdiction to, such as mail and border crossings. So if you order stuff online from wherever, outside or inside the country, you pay tax - both federal AND provinicial - through postal service or brokerage in case we're talking couriers like FedEx. Granted you can still get away from buying provincial tax if you buy within Canada but out of the province, though less and less businesses do that.

Yet with all that IT infrastructure and surveillance, stuff like Echelon and god knows what, the American government is not using it to enforce people to pay what they are supposed to pay? Even though they need the money? I always found it incredible when sending stuff to US and never hearing any issues with reported value of the package or taxes paid - because none are collected, it seems.

Now I personally hate this whole thing. Coming from an ex-communist country I thought only in communism they tax you on stuff you bring into country. Yet apart from some small exemptions, even in Canada they tax everything no matter where you buy it and they are VERY good at closing all loopholes. Your baggage is often scanned at the airport to find out if you didn't report any liquor, all post is intercepted and taxes collected on reported value, etc. etc. I thought there were not supposed to be ANY taxes on stuff you buy out of the country for the very reason you bought them OUT of the country. What right do they have to collect SALES taxes on stuff that wasn't SOLD within borders? Where is then the incentive to get businesses to SELL the stuff within borders? If there were no taxes on stuff you buy outside, government would have the incentive to ease whatever business issues are causing businesses to not be able to offer those same goods locally at comparable prices. They way it is now, the only one getting punished is consumer - and I always thought that was a communist practice.




RE: You guys are strange
By Reclaimer77 on 5/6/2008 5:39:28 PM , Rating: 2
quote:
I find you Americans strange. You are SUPPOSED to pay taxes on anything you buy to the state you live in. And an advanced contry like US has all the technological means at its disposal to enforce it, yet it doesn't. What gives?


I find Canadians strange too. /shrug

Its simple. The US tax code, and all 133,445,333,553,324,455 pages of it ( slight exageration ) was written before there was an Internet. Much less people purchasing items on it and having them shipped.

Would YOU want to pour through that many pages and make changes ?

I mean, your admitting Canada is tax crazy like its a good thing. Did you ever think that, when given the choice, we rather NOT pay taxes ?

You have to understand this is one state, out of 50, with an out of control budget due to being run by Liberals for 50+ years. This isn't even an issue or nearly as big of a deal as you might think. Since they have taxed nearly everything they can think of to the point of almost driving people away from living there, and still can't manage a responsible budget, they are looking to Boldly Tax Whats Never Been Taxed Before: Internet sales.


RE: You guys are strange
By Ringold on 5/6/2008 10:47:45 PM , Rating: 2
Well, heheh, lets be fair Reclaimer, his last paragraph could be summarized thus: "I hate this communist crap. I left one communist nation to move to another!"


Sucks
By rdeegvainl on 5/6/2008 8:14:26 AM , Rating: 2
Sucks for states, since just about no one report it in their taxes... but I want to keep my money damn it.




Moratorium?
By BMFPitt on 5/6/2008 8:34:37 AM , Rating: 2
Is this their way to get around the federal law, or did they let that expire when I wasn't paying attention?




New York is copying Canada
By Brian23 on 5/6/2008 10:59:29 AM , Rating: 2
We want more money!

Some of that Internet money.




Dakoka
By twhittet on 5/6/2008 7:25:51 PM , Rating: 2
So am I the only one to notice the state of "North DakoKa"? Are they by Guam?




Hey lawmakers!
By JonnyDough on 5/8/2008 11:16:31 PM , Rating: 2
Don't we get taxed enough? When are taxes ever going to get LOWERED? All they've done is gone UP for the last 200 years. Quit it!




By jonrem on 5/6/2008 9:30:57 PM , Rating: 1
Why don't lawmakers think about the effects of taxation beyond what they gain in the short term? This will have a chilling effect in an already cooling economy. Additionally, there are many New York based companies that would stand to lose if other states were to do the same. Companies that do significant business online are already have a disadvantage over local business due to shipping costs. The way I see it is more business and commerce and fewer barriers to it benefits the economy and the people as a whole far more than any government action using the resulting tax dollars could. The internet should remain as free and as open as possible when it comes to commerce.




H.R. 25
By therealnickdanger on 5/6/08, Rating: -1