Supreme Court Rules in Favor of Online Sales Tax Collection; Indiana Poised to See Millions in New Revenue

The U.S. Supreme Court decision issued yesterday in South Dakota v. Wayfair has been awaited by many brick-and-mortar retailers and state budget-makers for over 25 years. In a nutshell, the Supreme Court’s decision (5-4) will permit states to move forward with sales tax collection from online retailers.

The Court overturned the Quill v. North Dakota decision (and Bellas Hess on which Quill was based) dealing with sales tax on mail orders – dating back to 1992, well before the internet boom. The Court found those old decisions to be “unsound and incorrect” and deemed them to be “an extraordinary imposition by the judiciary on states’ authority to collect taxes and perform critical public functions.” The old cases found that requiring the collection of sales tax, when the seller has no physical presence in the state, an undue burden on interstate commerce – a constitutional issue. The “physical presence” test effectively prohibited states from requiring an out-of-state business to collect sales tax from its customers. But now the Court has stated that it “can no longer support the prohibition of a valid exercise of states’ sovereign power”. To put it simply, times have changed. There is readily available software that online retailers can utilize to set up the sales tax collection; it’s no longer a big deal. Separately, the online retail market has become so huge in the last two-plus decades as consumer shopping preferences have shifted; that’s made it all the more imperative that the segment be on a level playing field tax-wise with brick-and-mortar stores.

The Court also addressed the widely-held notion that this issue needed to be resolved by Congress. The Court responded to that saying, “It is inconsistent with this Court’s proper role to ask Congress to address a false constitutional premise of this Court’s own creation.”  In other words, the Court created this dilemma, if you will, with the Quill case and determined it needed to be the one to then provide a remedy.

The new ruling essentially upholds the South Dakota statute that allowed the state to require online sellers to collect sales tax if they deliver over $100,000 in goods into the state, or have over 200 separate transactions with customers in the state. (Technically, the case was remanded to the South Dakota Supreme Court to issue a new determination without the Quill case serving as a controlling precedent.) The Court found that the requirement under other precedent – that the seller have legal nexus in the state – was clearly met by the sales thresholds of the South Dakota Act.

The Indiana Chamber has been a long-time advocate for online sales tax collection; it is one of the key goals in our Indiana Vision 2025 plan. State lawmakers, led by former Sen. Luke Kenley, were also attuned to these issues and quite wisely enacted legislation in 2017 that was modeled after the South Dakota statute. In fact, our law is essentially identical. This means that with a law that the U.S. Supreme Court has now found legally sufficient, Indiana is poised to begin requiring online sellers to collect and remit Indiana sales tax from their Indiana customers. Again, this is directed at those online sellers who meet the $100,000 or 200 transaction thresholds outlined above.

 It is worth mentioning that Hoosiers are already legally obligated to pay the online sales tax when they file their state income tax returns, but as a practical matter almost nobody does. Uncollected sales tax from online transactions has resulted in substantial loss of revenue to states, thus increasing the tax burden on those who do pay the taxes they owe. Estimates place the uncollected tax for the state of Indiana at more than $100 million annually, perhaps as high as $200 million. That number has grown exponentially with the popularity of online shopping and is only going to keep rising.

So here’s to the U.S. Supreme Court for rectifying this long-standing problem, leveling the playing field between businesses and placing the sales tax burden evenly.

Poll: People Still Looking for Health Care Answers

Our most recent poll question asked for opinions about the Affordable Care Act, Obamacare or whatever you prefer to call the federal health care reform legislation that is going to dramatically impact so many lives in the coming months and years. The responses to the four choices are interesting, as always, but we want to also share some of the comments in the "other" category.

Results:

  • 60%: more questions than answers remain
  • 15%: exchanges will be the solution
  • 13%: other (see below)
  • 8%: "wait and see" is the way to go for 2014
  • 4%: employers will "pay" rather than "play"

Comments:

  • "It's a train wreck regardless of who you are"
  • "A good first step in health care reform"
  • "Part-time will become the norm; exchanges too expensive, i.e.,annual income down"
  • "Repeal; it's a piece of [email protected]#$"

The current question (upper right of the page) deals with the U.S. Supreme Court.

Texas/Oklahoma Saga Latest in U.S. Water Battles

We've discussed battles over water rights previously — and certainly will again. Last week, the U.S. Supreme Court basically told Texas it has no right to claim billions of gallons of water on the Oklahoma side of the Red River. The Court reinforced an existing compact between those two states, Arkansas and Louisiana. Stateline reports:

The U.S. Supreme Court Thursday unanimously rejected a Texas water district’s attempt to tap river water in Oklahoma, settling a dispute that raised questions about state sovereignty and natural resources at a time when water is increasingly scarce and fought over.

The ruling found that the Texas authority had no right to the water in question, despite a four-state pact designed to ensure equal access to the water that flows in the Red River. The Tarrant Regional Water District had filed a lawsuit in 2007 saying Texas was entitled to some 130 billion gallons of water on Oklahoma’s side of the river basin.

As Stateline previously reported, the questions at the heart of the case have taken on increasing importance as drought and water shortages have strained water supplies and relations among many western states.

The dispute was seen as a potential test case for states’ rights over natural resources, but it’s likely the effect will be narrow, Marguerite Chapman, a law professor at the University of Tulsa, said.

“I think it affirms the integrity of an interstate compact as essentially a contract,” she said. “I don’t think it will disturb other compacts…the far-reaching effect would essentially be affirming the language that’s in the contract.”

The case centered on the Red River Compact that was signed by Texas, Oklahoma, Arkansas and Louisiana and approved by Congress in 1980.

The compact grants the states “equal rights to the use and runoff” of undesignated, or unallocated, water that flows in the sub-basin where the Tarrant district is staking its claim — but only if flows to Louisiana and Arkansas reach a certain threshold.

“No state is entitled to more than 25 percent of the water,” the pact says.

The compact has been in place for decades, but Oklahoma lawmakers enacted a moratorium on cross-state transfers in 2002. When the original moratorium expired in 2009, the Oklahoma legislature overhauled the state’s permitting process to effectively exclude out-of-state applicants for water.

Seminar to Provide Answers to Your Health Care Questions

We don’t utilize this space very often to simply "sell" you on Chamber events. But in the wake of last month’s Supreme Court ruling upholding the Patient Protection and Affordable Care Act, it’s time to move forward.

A half-day seminar, appropriately titled Health Care Reform: What Happens Now, takes place on July 24 at the Indiana Chamber Conference Center. While Ice Miller attorneys will analyze the opinion, the focus will be on what this means for your organization going forward.

The investment you make in this event will certainly pay off as companies, providers, health plan administrators and others prepare to take the next steps down the health care path.

A Statement on Today’s Health Care Decision by the Supreme Court

Indiana Chamber of Commerce President and CEO Kevin Brinegar reacts to the U.S. Supreme Court’s ruling on the Affordable Care Act, announced today:

Conventional wisdom and national polls showed many Americans favored repeal of the measure, so we are surprised by the Court’s decision.

"Our concern is the impact the health care law — now that it’s going forward — will have on Hoosier businesses and their workers. Mandating coverage for pre-existing conditions and extending coverage for dependent children to age 26 will cause increases in health care costs; there is no way around it.

"That will force many employers to make the difficult decision to stop offering coverage and push employees into the federal plan. It puts the nation on the road to universal health care.

Pres. Obama’s Health Care Plan in Limbo

Businesses everywhere are anxiously awaiting how the Supreme Court will rule on President Obama’s federal health care reform plan this week. The decision will have many ramifications for businesses — and could even force some to reverse adjustments they’ve been making since 2010. CNBC reports:

First, an important caveat: Most of the employer provisions of the health care reform law apply only to businesses with 50 or more employees. So, if your business is smaller than that, you’re mostly off the hook — and you won’t be required to provide health insurance to your employees regardless of what the court decides.

But if your company is larger — or if you’re already growing and expect to someday employ more than 50 people — there’s a lot of unsettled business. Bigger firms that fail to offer their employees insurance could wind up paying government fees, which would kick in when employees obtain insurance independently. At the same time, the law would create exchanges and subsidies for individuals who buy insurance on the open market, and would also expand the Medicaid program.

Of course, there are many other provisions and exceptions. For example, even though companies with more than 50 employees would be required to provide insurance, they would also be allowed to skip paying the $2,000-per-employee government fee for the first 30 employees who didn’t have health insurance. (If you’re having trouble with that exception, rest assured that we had to think it through a dozen times before it made sense, too.) The truth is that once you get deep in the regulations  —many of which haven’t even been written yet —nobody really knows how things will settle out.

The Individual Mandate

Most of the legal attention has been focused on the so-called "individual mandate," which requires people to purchase health insurance, either through their employers or on the market. It was this provision that garnered the most pointed questions from the justices at oral argument in March.

"Can you create commerce in order to regulate it?" Associate Justice Anthony Kennedy asked at the time, apparently trying to figure out how the United States could justify requiring people to buy health insurance under the Commerce Clause of the U.S. Constitution. He later added that he believed the government faced "a heavy burden of justification," and was "changing the relationship of the individual to the government."

Under the mandate, individuals who fail to acquire insurance would be subject to government fees — although the exact nature of those fees, and whether they would amount to taxes, penalties or something else — is one of the more esoteric but important issues in the case before the court.

Despite the 2,400-page law’s complexity, the possible outcomes really fall into three categories. The court could strike down the law, uphold the law, or strike down some provisions. If that happens, it’s most likely that the court would get rid of the individual mandate will while upholding the rest of the law.

Also, Barbara Lewis of Inside INdiana Business spoke with Ice Miller’s Greg Pemberton about the possibilities and what they mean for the business community.

And the Legislators’ Grades Are …

We asked you to evaluate the efforts of the Indiana General Assembly in 2012 and you responded with how I imagine most teacher gradebooks end up looking — a wide variety of marks.

The totals:

  • 28% give legislators a B, with the same percentage not so happy as they offered a D grade
  • 21% say A
  • 17% go down the middle with a C
  • About 7% are in the "other" category (likely an "F" grade)

Right-to-work, a smoking ban that covers 95% of workplaces and elimination of the state’s inheritance tax rank high on the Indiana Chamber’s list of priorities. Despite a few missteps, I’ll go with an "A" for the year.

Our new poll question (top right) offers you the chance to play Supreme Court justice on the health care reform law. Thanks for reading and voting.

Supreme Court to Fill Week With Health Care Arguments

When the federal health care reform law of 2010 began winding its way through various lower courts, it was not clear whether the ultimate destination would be the Supreme Court. The justices, after all, weigh many factors in determining their caseload.

But some conflicting rulings along the way made it less of a surprise when the "Supremes" recently indicated they would indeed consider various issues surrounding the far-reaching law. Now, even more information has come out about the unprecedented level of attention coming in early 2012. The Washington Post reports:

The high court scheduled arguments for March 26th, 27th and 28th over the Patient Protection and Affordable Care Act, which aims to provide health insurance to more than 30 million previously uninsured Americans. The arguments fill the entire court calendar that week with nothing but debate over President Obama’s signature domestic health care achievement.

With the March dates set, that means a final decision on the massive health care overhaul will likely come before Independence Day in the middle of Obama’s re-election campaign. The new law has been vigorously opposed by all of Obama’s prospective GOP opponents.

The justices will start the week of arguments that Monday with one hour on whether court action is premature because no one yet has paid a fine for not participating in the overhaul. Tuesday’s arguments will take two hours, with lawyers debating the central issue of whether Congress overstepped its authority by requiring Americans to purchase health care insurance or pay a fine. Finally, Wednesday’s arguments will be split into two parts, with justices hearing 90 minutes of debate over whether the rest of the law can take effect even if the health insurance mandate is unconstitutional and an extra hour of arguments over whether the law goes too far in coercing states to participate in the health care overhaul by threatening a cutoff of federal money. 

Sizing Up the Court on Health Care Ruling

A quick Google search Monday evening of the four words of the day — "Supreme Court" and "health care" — revealed more than 1,800 news articles. I glanced at a handful to gain some perspective on what follows the not-too-surprising announcement that the Court will listen to arguments (likely next March) and issue a ruling (likely in June) on the constitutionality of the individual mandate portion (among other things) of the federal health care reform law.

Here are a few different facts and notes:

  • It’s been more than 600 days since President Obama signed the Patient Protection and Affordable Care Act of 2010. It’s only 215 days until the expected end of the Supreme Court’s spring term.
  • Stuart Taylor, Jr. of the Brookings Institution writes that the Court’s allocation of five hours of time for arguments is "extraordinary" and the "most time in many decades for related challenges to a single new law."
  • Taylor also notes that none of the justices recused themselves from hearing the case. There had been suggestions that Justice Elena Kagan (Obama’s former solicitor general) or Justice Clarence Thomas (whose wife has been politically active in opposing the law) might take that step.
  • Andrew Cohen, chief legal analyst for CBS News, offers 1-9 odds that Justice Anthony Kennedy "will be in the majority no matter which way the Court rules … and that both supporters and detractors of the Act likely can’t win without his vote."

Congressional Quarterly, in the business of interpreting what goes on in Washington each day, offered this analysis of the political implications and the possibility that a ruling may not be a decision after all:

A ruling, four months before Election Day, that the mandate is constitutional would provide a significant and perfectly timed boost to Obama and congressional Democrats — because it would enshrine for the ages their top shared domestic policy achievement. A ruling that strikes it down would grant the GOP nominee-in-waiting, and congressional Republican candidates, their No. 1 campaign season wish — because it would validate all of their vituperative derisions of “Obamacare” as an unconstitutional overreach.

The main reason the justices would take one side or the other is that the regional federal appeals courts have been split on the core question of whether the mandate is within Congress’ power to regulate interstate commerce. (Two have upheld the law, a third has found it unconstitutional and a fourth has ruled it’s too soon to say.) And a main function of the Supreme Court is to make consistent judicial policy when the lower courts disagree. But it’s also true (Bush v. Gore aside) that (Chief Justice John) Roberts and the other conservatives who are the majority on the court have said over and over again that the judicial branch should generally look for ways to stay out of white-hot political disputes — and also should defer, if at all possible, to the will of the elected branches of government when it comes to policy disputes.

And so the easiest way to find five votes between now and June might be for one of those conservatives (the chief justice, Scalia, Thomas, Alito and that big maybe, Kennedy) to shop the view among his colleagues that it’s too soon to decide the constitutional question yet — because the mandate hasn’t actually taken effect and so no one has been “harmed” by having to pay a penalty for not obeying.

What does it all mean? The analysis will be sure to continue over the next 200-plus days until a decision has been made. Then a new round will begin on the implications of that decision. I’ll guess it’s a 5-4 ruling in favor of … how do I know? No one has ever confused me with a Supreme Court justice.

Judge: Supreme Court Voice Needed on Health Care Reform

The Florida judge who declared the federal health care reform law unconstitutional "updated" his own ruling yesterday and urged that "the sooner this issue is decided by the Supreme Court, the better off the entire nation will be."

On January 31, 2011, U.S. District Judge Roger Vinson (Pensacola, Florida) determined that the “individual mandate” provision of the Patient Protection and Affordable Care Act (PPACA) is unconstitutional and declared the remainder of the Act void because it was not severable.  The defendants (the Obama administration) filed a motion to clarify with the court, suggesting that there would be adverse consequences from an immediate halt of implementing the Act given that many provisions are now in effect and that several other district court judges have upheld the law.

Yesterday, the judge stated that while his original order “was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.”  He did however, treat the clarification as a stay from his original order and as such granted it.  He conditioned the stay upon the defendants filing their anticipated appeal within seven days of his order, either in the Court of Appeals or with the Supreme Court. He chastised the administration that it had been more than a month since his order and the defendants had not filed their notice of appeal.

Twenty six states, including Indiana, are party to the lawsuit. On Wednesday at the Indiana Statehouse, a joint meeting took place with the House and Senate Insurance and Health Committees. Attorney General Greg Zoeller commented on PPACA and offered his view that in those states that were party to the suit the Act was unenforceable. Those comments do not apply a day later as Judge Vinson’s stay to his original order was granted.