Tennessee’s deal with Amazon – three new distribution centers in the state in exchange for not requiring the Internet giant to collect sales tax – might turn out to be a great online bargain after all.
A bill introduced last week by Sen. Dick Durbin (D-Ill.) would set a federal mandate for online sellers such as Amazon to collect sales taxes on all purchases. John Conyers (D-Mich.) and Peter Welch (D-Vt.) are the House sponsors.
Amazon, which has resisted state efforts to force sales tax collections, seems to like the Main Street Fairness Act (MSFA). So does Sears. The National Governor’s Association, to no one’s surprise, backs it.
All of which means Tennessee could get the distribution centers and collect sales tax on purchases, recovering some of the estimated $365.5 million lost annually to non-taxed online sales.
“Why should out-of-state companies that sell their products online have an unfair advantage over Main Street bricks-and-mortar businesses here in Springfield?” Durbin states.
“The Main Street Fairness Act doesn’t ask anyone to pay a single penny more in taxes. Instead, it would help governors and mayors collect taxes that are already owed,” he adds. “Between 2009 and 2012, states across the country, including Illinois, are expected to lose as much as $37 billion in uncollected state and local taxes on internet and catalogue sales. From 2005 to 2010 the state of Illinois estimated it lost $153 million each year.”
Paul Misener, Amazon.com’s vice president for global public policy, agrees.
“This bill will level the playing field for local businesses by ensuring that online retailers collect the same sales taxes that brick-and-mortar retailers already do,” he writes in a letter to Durbin.
“Amazon.com has long supported a simple, nationwide system of state and local sales tax collection, evenhandedly applied to all sellers, no matter their business model, location, or level of remote sales. Amazon looks forward to working with you and your colleagues in Congress to help enact sales tax collection legislation.”
The legislation, cosponsored by former Tennessee quarterback Heath Shuler (D-NC) in the House, is not supported by another online giant, eBay.
The bill exempts small online and catalog retailers from having to collect taxes, but does not define “small.” Earlier versions had set the threshold at $5 million in annual sales.
Dr. William F. Fox, director of the Center for Business and Economic Research at The University of Tennessee-Knoxville, says the MSFA legislation is not groundbreaking.
“The legislation is not new. It’s just not linked to e-commerce,” Fox says. “Every state that adopted its sales tax adopted its “use” tax. It’s old legislation, and the whole intent of it is to make sure that the sales tax is to be imposed where the items are intended to be used, not in the place in which they are sold. With e-commerce having grown so fast, it became such a big number relative to what it was historically.”
Data from the Center shows Tennessee will lose about $365.5 million in 2011 on untaxed Internet sales.
Jim Sites, owner of Ward Potts in Nashville and Sites Jewelers in Clarksville, says nearly all brick-and-mortar stores are at a disadvantage with online shopping.
“It would certainly level the playing field,” Fites says of (MSFA). “My main concern is for not only the luxury stores but for the bookstores, hardware stores, and clothing stores.
“Our stance has always been is that it puts a local merchant at an immediate 10 percent discount in pricing. Not only are the online shopping experiences not requiring you to pay tax, a lot of time they are throwing in the shipping charges, too.”
A 1992 U.S. Supreme Court ruling holds that states cannot force online companies to collect sales tax unless they have a presence in the state. States are claiming that warehouses and distribution center fit that description. Amazon claims the ruling means a retail store.
The bill would likely negate a deal former Gov. Phil Bredesen made with Amazon that exempts the company from collecting tax on Tennessee transactions. That agreement was reached to convince Amazon to build two distribution centers in southeastern Tennessee that would create an estimated 1,700 jobs.
Gov. Haslam said in January he would honor the deal, and announced just last week that Amazon plans to build a third distribution center in Lebanon.
In May, the Seattle-based company canceled plans for a distribution center in South Carolina after the state refused to give Amazon a sales tax exemption. Amazon closed a distribution center in Texas in February instead of paying the $269 million Texas says it’s owed in uncollected sales tax.
State Senate Finance Committee Chairman Randy McNally (R-Oak Ridge) is sponsoring a bill that would require Amazon to remit sales tax, but would consider giving them some time. The details of the deal the state made with Amazon are protected.
“Part of the issue is that the only one that can tell us what the agreement is is Amazon, and they’re not talking,” McNally says. “The agreement that was made last year is that the Department of Revenue cannot discuss it unless they have Amazon’s permission.”
The heart of the problem nationwide has been in the definition of physical presence or “nexus.” Some states are trying to make a case for presence, not only with existing warehouses and distribution centers, but with what are called affiliates. An affiliate is a website that links back to Amazon with the goal of making a commission for referred sales.
Some states are trying to use the definition of an affiliate as a presence. Subsequently, Amazon pulled its affiliate program in California when the state attempted to do that.
“That’s where the issue arises. What defines physical presence?” Fox says. “Generally speaking what has happened is that both Overstock.com and Amazon have said, ‘If you pass that nexus/affiliate legislation, then we will simply stop the affiliate program and saying they no longer have a physical presence in that state. They are not stopping their sales into the state.”
Because Amazon is in state courts across the country, it’s believed the company would go along with the Main Street Fairness Act because the issue does not appear to be going away, and the bill could be a national solution.
But, as with Tennessee, states are looking at the balance between taxes collected and the possible loss of jobs.
Fox says the number of jobs doesn’t outweigh the estimated loss in tax revenue from online companies, and McNally believes Tennessee’s location give the state a lot of muscle.
“It would be a poor business decision [to pull out] on their part,” McNally says. “Tennessee is geographically located within a very short drive of about three-quarters of the population of the United States. And it doesn’t come off their bottom line.”
But will that population be pushed off the couch and out onto Main Street?
It depends, says Laurie Sullivan, an Antioch residents and avid online shopper.
“The added sales tax, along with shipping for one item, would send me out to the store,” Sullivan says. “I’m not paying $10 in shipping for a $4 stuffed monkey, but if I have a lot of items I can’t get at stores and the amount reduces the shipping, then I‘d consider paying the tax online.
“It’s very convenient to shop using the Internet, and I think a lot of people have gotten used to it. The choices are going to be pay the tax from your couch or pay it at the mall.”