Rep. Kristi Noem today issued the following statement, after the Supreme Court’s announcement that it will review South Dakota’s case regarding online sales tax collection:

“In the wake of today’s announcement, the need for legislative action on e-fairness is more urgent than ever before. If the Supreme Court rules in South Dakota’s favor, it could become a marketplace free-for-all. A South Dakota small business, for instance, could be forced to comply with 1,000 different tax structures nationwide without the tools necessary to do so. My legislation provides a necessary fix.

“The reality is that brick-and-mortar retailers, which provide thousands of jobs in our hometowns, have been closing at an alarming rate. State and local governments are similarly imperiled. Facing budget crises due to out-of-state retailers avoiding sales tax collection, states and localities are forced to raise taxes or consider levying new taxes, even after dramatically reducing spending. My legislation would remove the out-of-state retailer’s competitive advantage and level the playing field for our Main Street businesses. Moreover, it would protect small businesses and citizens alike from aggressive audits by out-of-state governments. The time for action is now.”

In 1992, the Supreme Court ruled in Quill v. North Dakota that states were prohibited from collecting sales taxes from out-of-state online retailers. Individuals were still liable to pay the tax, but it would not be collected at the point of sale. If South Dakota’s case is successful in the U.S. Supreme Court, Quill v. North Dakota will be overturned. As a result, businesses could be immediately responsible for collecting sales taxes from buyers and then remitting it to states. To add to the confusion, this requirement would be determined state-by-state. There would be no infrastructure in place to facilitate these transactions, however, potentially causing a free-for-all.

To put it in perspective, there are more than 1,000 different tax structures nationwide. A small business in South Dakota would need to be able to comply with each of them to sell nationwide – and they’d be subject to audits in each of these jurisdictions. There is software that can help figure these tax rates out, but the business is still liable if mistakes are made and that software could be cost prohibitive for smaller businesses.

Avoiding this free-for-all has been a focus of Rep. Noem’s since she was first elected, and she’s introduced legislation to manage the transition while protecting South Dakota small businesses. More specifically, H.R.2193, the Remote Transactions Parity Act, would:

  • Allow states to require remote sellers to collect sales tax from the buyer, according to the taxes owed in the buyer’s location. (essentially legislatively reversing Quill v. North Dakota)
  • Require states to provide software (free of charge) to businesses located within their borders. This software would be capable of figuring the buyer’s tax rate.
  • The businesses using this software would be largely protected from audit. Instead, it is the software provider that is subject to audits.
  • The legislation includes a phase-in period to ensure businesses have time to comply. 

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