League Bulletin

Long-awaited oral arguments​ played out before the U.S. Supreme Court this week in a vital case for business fairness and local government resources. ​Observers are analyzing where the justices might stand in South Dakota v. Wayfair, a case asking that states and local governments be allowed to require retailers with no in-state physical presence -- e-commerce websites, for instance -- to collect sales tax. Such a decision would overturn a Supreme Court ruling from 1992 (Quill v. North Dakota) that retailers didn't need to collect and remit sales taxes unless they had an in-state physical presence. The enormous growth of e-commerce since then has earned it new scrutiny; it's now a $450 billion-per-year sector, according to Route Fifty's coverage of the case. While a decision isn't expected until the end of June, the National League of Cities believes there is the potential for four votes for overturning the Quill decision, based on Tuesday's oral arguments and justices' comments. On the nine-member court, that would still leave a ruling overturning Quill one vote short, but there may be additional support for a decision that stops short of that result while still providing some relief for cities and towns. 

 

NLC released an analysis from in-house and external sources of the justices' apparent stances on the case. "Based on oral argument the Court is likely to follow one of three paths. It could keep the physical presence test and not overturn Quill. It could overturn Quill and replace (or add to) the physical presence test an economic nexus test (like the South Dakota law which requires out-of-state vendors to collect tax only if they annually conduct $100,000 worth of business or 200 separate transactions annually in the state). Finally, it could overturn Quill and allow states to require all out-of-state vendors to collect sales tax no matter how much (or little) business they do in a state." Hard projections regarding the outcome are difficult at this stage, NLC says, but "it is not too difficult to count four votes for overturning Quill (Kennedy, Thomas, Ginsburg, and Gorsuch). Getting a fifth vote from Chief Justice Roberts or Justices Breyer, Alito, or Kagan as to an economic nexus test seems possible. Five votes to repudiate Quill with no replacement seems unlikely. But most states and local governments would be fine with an economic nexus test." A CitiesSpeak blogpost​ offers more context and analysis from the oral arguments. The post, citing the National Conference of State Legislatures, points out that states lost an estimated $23.3 billion in 2012 from being prohibited from collecting sales tax from online and catalog purchases.