In a decision that will impact online shopping for all Alabamians, on Thursday the U.S. Supreme Court upheld a South Dakota law that required online companies to collect and remit state sales taxes, even if that company did not have a ‘physical presence’ in the state.
In the landmark ruling, the court reversed a 26-year-old decision and in saying that states can require internet retailers to collect sales and use tax in states where they lack a physical presence.
Alabama is expected to be among the states most likely to see the biggest percentage increase in revenue based on the Barclays research.
The ruling is likely to lead the Yellowhammer State to collect sales tax on purchases from out-of-state online businesses more aggressively. Translation: many consumers will likely pay more at the online checkout.
History behind the opinion
Justice Anthony Kennedy, who wrote the majority opinion in the 5-4 decision, said the 1992 decision, known as Quill, resulted in “a judicially created tax shelter for businesses that decide to limit their physical presence and still sell their goods and services to a state’s consumers — something that has become easier and more prevalent as technology has advanced.”
According to the U.S. Census Bureau, from 1992 to 2018 internet and mobile sales have grown from zero to nine percent of all retail sales. Online sales are growing at four times the rate of total retail sales – 16 percent vs. 4.4 percent. The pre-internet era physical presence rule put “local businesses … at a competitive disadvantage relative to remote sellers,” and it “produced an incentive to avoid physical presence in multiple states,” Kennedy wrote in his opinion.
Prior to the SCOTUS ruling
In 2015, Alabama was looking for a solution to the problems they were encountering due to the Quill decision.
That year, the Alabama Department of Revenue (ADOR) adopted a Simplified Sellers Use Tax program (SSUT) that took effect October 22:
“Pursuant to this rule, an out-of-state seller with a substantial economic presence in Alabama will be required to collect and remit Alabama tax on its sales into the state, regardless of whether it has an Alabama physical presence. The rule imposes a collection obligation on out-of-state sellers who engage in one or more of the activities listed in Code of Alabama 1975, Section 40-23-68, activities subjecting out-of-state sellers to the state’s sellers use tax levy, and who had $250,000 or more in retail sales sold into Alabama in the previous year.
Out-of-state sellers may satisfy the rule’s requirements by collecting, reporting and remitting tax on sales made into Alabama pursuant to the provisions of Article 2, Chapter 23 of Title 40, Code of Alabama 1975, or by participating in the Simplified Sellers Use Tax Remittance Program.”
SSUT allowed, and continues to do so, participating sellers to collect, report, and remit an eight percent simplified sellers use tax on sales of tangible personal property delivered to Alabama purchasers, covering both state and local taxes. If SSUT is collected, neither the purchaser or the seller are liable for any additional use taxes on the transaction, regardless of whether the actual combined local and state rate is higher than eight percent.
Before the SSUT was launched in 2015, online sellers with no physical presence in the state had no obligation to collect and remit use taxes on sales made within the state. Not only did this result in millions of dollars of revenue lost, but it also meant that brick-and-mortar retailers in the state, who did collect and remit sales tax, were at a disadvantage.
In April 2018, Gov. Kay Ivey signed into law HB470, which amended the 2015 SSUT law by requiring online marketplaces to collect and remit use taxes on sales made through their marketplaces by third-party sellers, or to report such sales to the Alabama Department of Revenue and notify customers of use tax obligations.
The legislation also allows existing sellers participating in the SSUT that establish a physical presence in this state, only through the acquisition of an in-state business, to continue to participate in the SSUT program.
What the changes mean for Alabama?
Since it’s inception, approximately 185 online vendors have voluntarily joined the state’s SSUT program. They are protected from a change in the physical presence rule. Only if the change in law is caused by “the enactment of federal legislation” is their grandfather protection voided (see Ala. Code § 40-23-191 et seq.).
What they’re saying
“The U.S. Supreme Court has ruled that online-only sellers should have to play by the same rules that in-state retailers do. Local retailers have been playing by the rules and collecting state sales tax on every purchase, every year since the Supreme Court’s original decision,” said Rick Brown, president of the Alabama Retail Association. “This is a victory for Alabama’s Main Street retailers. No longer will the federal government select winners and losers in the retail industry. Our 4,200 retail members and our association have advocated for this decision for decades.”
Brown added, “Out-of-state, online-only businesses will no longer have an unfair advantage over our friends and neighbors who own local businesses. This ruling clears the way for a fair and level playing field where all retailers compete under the same sales tax rules whether they sell merchandise online, in-store or both.”
Ivey says the decision “will promote parity between our state’s brick and mortar businesses and competing out-of-state sellers.”
“Technology and the advent of e-commerce has drastically changed the retail landscape and the states’ ability to collect sales taxes. The Supreme Court’s ruling related to online sales taxes is a common-sense approach that modernizes existing limitations on the taxation of e-commerce sales and will facilitate collections in our global, technology-driven economy,” said Ivey. “The change effected by the Court’s decision will promote parity between our state’s brick and mortar businesses and competing out-of-state sellers.”
ADOR has not responded to request for comment at the time of publishing.
*This article will be updated as the decision is reviewed further.