By John Sharbaugh, CAE
Managing Director of Governmental Affairs
The Wayfair ruling could have a major effect on the ability of states to collect sales taxes from companies selling via the internet. In its decision, the U.S. Supreme Court overturned two previous rulings that had required a company to have a physical presence, such as an employee or building, in a state before it could be liable for remitting sales tax.
The Supreme Court remanded the case for further proceedings, which means the case is not final, and there could be other litigation on the question of when a state or local jurisdiction can require remote sellers to collect and remit sales and use taxes.
The decision also noted that prior Supreme Court cases impose two key limits on state authority regarding the taxation of interstate commerce, which are still good law: 1. States may not discriminate against interstate commerce, which essentially means states may not treat out-of-state sellers worse than in-state sellers; and 2. States may not impose undue burdens on interstate commerce, the meaning of which is an open question.
Hegar also weighed in on this Supreme Court decision, issuing a memorandum about it. He notes that his office is proceeding “carefully and deliberately” to understand the decision while seeking input to help implement the new law. He also said the legislature should consider action in the next legislative session to update and make modifications to existing statutes to help with the implementation. Hegar’s office is working now on developing recommendations to the Texas Legislature for its consideration.
In terms of the potential fiscal impact, Hegar cautioned that the possible revenue gains from implementing sales tax on internet sales will probably be less than was estimated a few years ago. An estimate developed in 2014 by then Comptroller Susan Combs projected that up to $840 million in annual state sales tax would be uncollected by remote sellers through all channels, including catalogs, emails and phone.
But Hegar noted that there have been significant changes in the online marketplace during the last four years that will likely mean less additional revenue from this stream. For example, Amazon and other big online retailers, including Wayfair, are already remitting the tax on direct sales to Texans. So, this Wayfair decision may not be the significant windfall for the state that many would assume.