Talk:Marketplace Fairness Act

12 October 2012

@Sparkie82: Can you please explain what your concerns were regarding the edits I made to this page and why you reverted them? That way I can respond to your concerns and explain my reasoning.Erincg (talk) 21:10, 12 October 2012 (UTC)

Okay. We are at step two of WP:BRD. What changes do you propose making to the article and why? Sparkie82 (t•c) 03:57, 23 October 2012 (UTC)

Here are the top 5 changes I think need to be made. I did make more that I'd like to address later (including adding several citations), but this is a start.

1. The references to online sales tax as a "new tax": Online sales tax is not a new tax. Sales tax is already due on online purchases if you live in a state with sales tax (and if you don't, the bill wouldn't change anything for you). The only thing the bill would change is that states could require online retailers to collect sales tax regardless of where the retailer is located. It’s a collection issue -- it’s not a new tax.

2. The references to retailers "paying" sales tax: Retailers do not *pay* sales tax. They collect it and remit it to states. Consumers pay sales tax. Each mention of retailers paying sales tax should be changed to "collecting" or "remitting."

3. As interstate sales are *not* tax-free (see #1), I deleted the line about voters enjoying the money they save on tax-free interstate sales.

4. The Marketplace Fairness Act does *not* require states to adhere to the Streamlined Sales and Use Tax Agreement in order to be able to require out-of-state retailers to collect sales tax. You may be thinking of the Main Street Fairness Act, an earlier bill also still before Congress. The Marketplace Fairness Act gives states the option of simplifying their sales tax rules instead. Along the same lines, it’s not the Streamlined Sales and Use Tax Agreement that creates reseller permits, resale licenses, or wholesale exemption certificates. States with sales tax created these exceptions to the sales tax rules, and it’s state law that applies. States that are not members of the Streamlined Sales and Use Tax Agreement, such as California and New York, still have reseller permits to exempt resellers from paying sales tax. This is why I deleted “the Streamlined Sales and Use Tax Agreement would apply to those sales.”

5. In the section on supporters: I added the Retail Industry Leaders Association to the list of supporters because it is a supporter. (I would also add the National Retail Federation to that list.) I also added that “small local retailers without online stores largely support the bill, saying it will level the playing field” because they do (I included several citations supporting this). I put the list of supporters in a new paragraph because the list of opponents is also in a new paragraph and this made for easier reading.

Erincg (talk) 15:46, 29 October 2012 (UTC)

1 & 2. Sales tax is always paid by the seller, not the buyer. That is why it is called a sales tax. When a buyer pays a tax based on a percentage of a transaction, it is called an expenditure tax (which is very rare). Most states provide for the seller to itemize the sales tax but some states don't. If the tax is not collected for some reason on an intrastate transaction (a transaction entirely within one state), the seller is responsible for paying the tax. A state may not impose a sales tax unless the seller has a physical presence in the state (or the two states have a compact). Only congress can impose a sales tax on interstate transactions (transaction between persons in different states). Currently, there is no such tax on interstate transactions and the proposed law seeks to create a new interstate sales tax imposed by the federal government, paid by the seller directly to a state. It's a new tax.

3. I reworded that sentence in the article.

4. Yes, states may use either the SSUTA or the provisions in MFA. Rather than deleting the phrase entirely, maybe a rewording would be appropriate.

5. The phrase, "level the playing field" is meaningless PR hype (see WP:Promotion) and has no place in Wikipedia. We could say that some sellers with a physical store, located in states that choose to impose a sales tax, and with no online presence support the new tax because they feel out-of-state sellers should also be required to pay sales tax as they do, or they favor repeal of their own state's sales tax so that they would not be required to pay sales tax. Sparkie82 (t•c) 08:41, 5 November 2012 (UTC)

1. & 2. I’m not sure how we can be disagreeing about such a fundamental fact as who pays sales tax, but we are. Sales tax that is added to the cost of an item when it's being purchased is paid by the buyer. (It's called "sales tax" because it's a tax that's added to a sale. According to a WiseGeek article, an expenditure tax is a tax that replaces income tax and is based on rate of spending, not on an actual sale.) The seller usually does the math, adds the sales tax due to the total cost of the item, collects it from the buyer, and remits all the sales tax they've collected to the appropriate state/local agencies. (At bricks-and-mortar stores, at least -- online stores sometimes do this and sometimes don't, depending on a lot of things.) You can see how much you pay for sales tax on any receipt (as long as what you bought wasn't tax-exempt), and states often have no-sales-tax days as a way of encouraging consumers to buy -- many places offered no-sales-tax days during back-to-school shopping time. But you're right that if a seller is legally required to collect sales tax and does not, they can be held responsible for paying the tax they were supposed to have collected from consumers.

It's not that "a state currently may not impose a sales tax unless the seller has a physical presence in the state (or the two states have a compact." In fact, they already do -- the New York State Dept. of Taxation and Finance says this about sales and use tax: "Sales and use tax generally applies to products and services that you purchase within or outside New York that are delivered or used in the state and on which the seller does not collect sales tax." (I'm sure you can find similar statements on other state websites; it's not specific to New York.)

It's that a state currently cannot require a seller without a physical presence in the state to *collect* sales tax. If you live in a state with sales tax, you usually have to pay sales or use tax (up to now I've been using "sales tax" to mean "use tax" as well, since the two are virtually interchangeable) on your purchases, regardless of where you buy them. Here are a few articles on the subject: http://articles.latimes.com/2011/dec/11/opinion/la-ed-amazon-20111211; http://online.wsj.com/article/SB10000872396390444097904577536971916035192.html; http://voices.yahoo.com/when-pay-sales-tax-internet-purchases-2411102.html; http://salestaxguy.blogspot.com/2010/06/golden-rule-there-is-no-sales-tax-on.html

The actual text of the Marketplace Fairness Act says that states that have simplified their sales and use tax laws or are members of the Streamlined Sales and Use Tax Agreement are "authorized to require all sellers not qualifying for a small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to that State." Given that language, can we agree that it's about sellers *collecting* sales tax, not paying it?

The bill also says "(d) No New Taxes- Nothing in this Act shall be construed as encouraging a State to impose sales and use taxes on any goods or services not subject to taxation prior to the date of the enactment of this Act." Given that language, can we agree that this isn't a new tax? (If interstate sales weren't already subject to sales tax, this bill wouldn't change that.)

3. Thank you. However, if we are agreed on the fact that interstate sales are subject to sales tax if you live in a state with sales tax (for instance, New York, as demonstrated by the NY Dept. of Taxation and Finance website statement, above), then I think it should say "Voters who illegally avoid paying sales tax on interstate sales are generally opposed to the bill." (Note "bill" rather than "new sales tax," per my notes above.)

I’m also not sure why it says “Voters” instead of, for instance, “Consumers” or even just “People” – this isn’t something that most citizens will be voting on (just those in Congress).

4. This was my revision of the relevant text, which you reverted: "There is also no specific exclusion in the legislation to exempt resellers from the tax, so existing law would apply to those sales: A retail shop owner who makes interstate purchases of applicable merchandise for resale in their store would be required to pay sales tax on those purchases or apply to their state for a reseller permit, resale license, or wholesale exemption certificate, any of which would exempt the retailer from paying sales tax on purchases made for resale."

5. Well, I disagree that the phrase "level the playing field" is "meaningless PR hype" -- it's an idiom that's useful in this case because it clearly conveys an abstract concept in a few words. (It's even in the dictionary -- http://www.learnersdictionary.com/search/level+playing+field; http://idioms.thefreedictionary.com/level+the+playing+field -- and Wikipedia, http://en.wikipedia.org/wiki/Level_playing_field.)

However, I'm open to revising it -- but I think the language you suggested is unnecessarily complicated and wordy. Since “level the playing field” is the language that bothers you, why not just “Small local retailers without online stores largely support the bill.”?

Erincg (talk) 21:36, 6 November 2012 (UTC)

Thank you for your comments.

1. & 2. re: who pays sales tax -- Let me provide some more examples to help illustrate this because many people have this misunderstanding. When I ship a package using UPS, I pay them a certain amount to ship it. They collect this money, along with money from many other customers and they put my package on the jet and send it across the country. Some of the money they collect from their customers is used to pay for the fuel for the jet. Who paid for the fuel? Well, you could say, euphemistically, that UPS's customers pay their fuel bill, but actually UPS pays the fuel bill. Some time ago when fuel prices started to fluctuate too much, UPS began to itemize their fuel costs on their customer's bill, calling it a fuel surcharge. The itemization of that cost on their customer's bills did not change the fact that UPS, not their customers, paid their fuel bill.

In some jurisdictions, it is forbidden for sellers to itemize sales tax on their customer's receipts. The cost of the tax is part of the sellers selling expenses, but the customer never sees it itemized on their receipts. When the seller remits sales tax to the state (or city), they fill out a form that asks what their gross sales were for the period, then multiply that by the sales tax rate and remit that amount to the state. Who pays that tax? You could say, euphemistically, that their customers are paying the tax, and the customers are paying the seller's light bill and the customers are paying her lease and her employee's salaries, etc., but actually the sellers pays for all those things.

In jurisdictions that allow sellers to itemize the tax on customer receipts, everything is the same: the seller takes in money from customers and when they pay the sales tax to the state they must fill out a form that asks what their gross sales were for the period, then they multiply that by the sales tax rate and remit that amount to the state. If they didn't charge tax for something they should have, they still have to pay the tax.

Another completely different way of explaining it -- What is the definition of remit? It means to pay or send payment. When you get a bill from your utility company, it asks you to remit payment to some address. Now, reread your comments above, substituting the word pay in place of remit.

Regarding NY state sales tax law, you said:

the New York State Dept. of Taxation and Finance says this about sales and use tax: "Sales and use tax generally applies to products and services that you purchase within or outside New York that are delivered or used in the state and on which the seller does not collect sales tax.

It said, "sales and use tax", not "sales tax". Generally, state statutes are written so that when a resident brings something into the state to use, they must pay a use tax (set at the same rate as the sales tax). If the seller pays sales tax to the state, then the use tax is not charged. (I'm not sure exactly how NY's laws are worded without doing a bunch of research.) Use tax is paid by the user (the buyer), sales tax is paid by the seller, and the laws are written in such a way so that the two are mutually exclusive so that the seller doesn't have to pay sales tax on something that the buyer also pays use tax on. But they are two different animals.

The reason why states have use tax at all is because they are forbidden from imposing sales tax on sellers who are not in their state. (See Commerce Clause and Quill v. N. Dakota) That's why they have a use tax, so they can collect taxes when something is purchased via interstate commerce. (When the seller has a physical presence in the state, then the transaction is not interstate commerce, even if the product itself is shipped from another state. It's considered a sale from the seller in the state, to a customer in the state; not interstate.) The sources you cited are not authoritative on the subject, you need to read the U.S. Constitution, and court opinions addressing the Commerce Clause, and the state statutes.

Regarding new tax, you said:

The bill also says "(d) No New Taxes- Nothing in this Act shall be construed as encouraging a State to impose sales and use taxes on any goods or services not subject to taxation prior to the date of the enactment of this Act." Given that language, can we agree that this isn't a new tax? (If interstate sales weren't already subject to sales tax, this bill wouldn't change that.)

Again, that quote refers to sales and use tax. The phrase "No New Taxes" is merely a subsection title, kind of like "Marketplace Fairness Act", or "Streamlined Sales and Use Tax Agreement". The titles used in these laws are generally sales gimmicks and often misleading. (E.g., the Streamlined Sales and Use Tax Agreement is 203-pages long!) Also, that subsection is referring to the scope of a state's sales tax, i.e., which goods are taxed. Some states exempt food or clothing or whatever from sales tax and they are trying to get states to standardize on the scope. Apparently, the language, "construed as encouraging a State to impose... not subject to taxation prior.." is in there for some political or legal reason so they can say that the law isn't forcing the states to change their tax laws. But that clause has nothing to do with the proposed interstate sales tax itself, which would be based on a state's tax rate.

One last way of looking at this new tax issue: Currently, there is no interstate sales tax imposed by federal law. Period. If the law is enacted, there will be a federally imposed interstate sales tax.

3. As I've explained above, there is currently no sales tax on interstate sales (outside of a compact) so it is incorrect to say, "Voters who illegally avoid paying sales tax on interstate sales are generally opposed to the bill." It's not illegal to avoid sales tax in that case.

How about: "People who avoid paying sales tax on interstate sales are generally opposed to the new sales tax. (Even though they are usually required to pay a use tax on such purchases.)"

4. I'm not sure what the issue is. Go ahead edit that paragraph in the article and we'll work it from there.

5. Proposed language: “Small local retailers without online stores largely support the bill.”

I think it needs a little more specificity, and a reason why they support it. And it's not just small retailers, it's retailers of any size fitting that criteria, so just "Local retailers" or similar would be more accurate and concise. Also, I think we should mention that they would alternatively support elimination of sales taxes in their states as a remedy. Sparkie82 (t•c) 03:03, 8 November 2012 (UTC)

References

Clarifying Comments on "New Tax" Language and Other Points

I would like to clarify some misconceptions in this talk page. The following assertions appear to incorrect based on statutory law.

1 & 2. Sales tax is always paid by the seller, not the buyer. That is why it is called a sales tax. When a buyer pays a tax based on a percentage of a transaction, it is called an expenditure tax (which is very rare). Most states provide for the seller to itemize the sales tax but some states don't.

Here is a passage from New Jersey's Sales Tax Statute (N.J.S.A. 54-32B-12a)

Every person required to collect the tax shall collect the tax from the customer when collecting the price, service charge, amusement charge or rent to which it applies. If the customer is given any sales slip, invoice, receipt or other statement or memorandum of the price, service charge, amusement charge or rent paid or payable, the tax shall be stated, charged and shown separately on the first of such documents given to him. The tax shall be paid to the person required to collect it as trustee for and on account of the state.

Under New Jersey Law, the legal incidence of the tax is upon the purchaser. To say that the seller pays the tax is misleading because the seller does not incur the cost or expense of the tax. The term remit is used frequently by jurisdictions and by industry professionals and removes the implication that a seller incurs the tax expense. As for the states that don't allow sales tax itemization on the receipt or invoice, please provide examples. Stating the sales tax on an invoice is usually a requirement of collection and is also the first line of defense during an audit.

Some tax structures, similar to sales tax, place the legal incidence of tax directly on the seller. Arizon'a Business Privilege Tax is a tax imposed on the privilege of doing business in the state of Arizona. The seller is obligated to bear the cost of tax based on their gross receipts and any reimbursement provided by the buyer is a private matter between the seller and buyer. Although sales tax and business privilege tax are similar, they do have their differences. In a practical sense, Arizona can use the legal incidence on sellers to shield itself from Commerce Clause violations (Saban Rent-a-Car v. Arizona Department of Revenue and Arizona Sports and Tourism Authority

I also have a disagreement with the claims that The Marketplace Fairness Act is a new tax. After reading the bill, the intent is very clear.

The Statement of Purpose reads:

To restore States' sovereign rights to enforce State and local sales and use tax laws, and for other purposes

SECTION 2. SENSE OF CONGRESS. It is the sense of Congress that States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted, and the right to collect - or decide not to collect - taxes that are already owed under State law.

Judges must interpret laws based on the letter of the law and the spirit of the law. If the federal government was imposing a new tax, one would have to argue that it was congress's intent to create a new tax. There is absolutely no indication or intention of a new tax in the present form of S. 1832. Besides, for the bill to become a new tax, it would require some basic elements such as a tax rate, tax base, and imposition statute. None of these things are present in the bills current form.

Regarding the assertion that S. 1832 is a sales tax on interstate commerce, this talk page differentiates sales tax from use tax. It is true that states do not have the right to tax interstate commerce. That's congress's job, and they make it clear that they want to keep it that way. The Marketplace Fairness Act does not permit states from exercising any authority over interstate commerce (§5(c)(4).

(c) LICENSING AND REGULATORY REQUIREMENTS.— Other than the limitation set forth in subsection (a), and section 3, nothing in this Act shall be construed as permitting or prohibiting a State from— (4) exercising authority over matters of interstate commerce.

This limitation precludes states from collecting sales tax on interstate commerce because a state must have the authority to tax interstate commerce. Therefore, S. 1832 has little to do with a sales tax. This leaves the use tax, which is fundamentally what The Marketplace Fairness Act is upholding. Now there is an interstate component to collecting out-of-state use tax, but use tax is imposed on the use, consumption, or storage of tangible personal property in a given state and that is not commerce. Plus, focusing on use tax is more in line with the Quill v. North Dakota decision, where North Dakota attempted to impose use tax.

In order to more accurately reflect the nature and intent of The Marketplace Fairness Act, I suggest changing the introduction to the following:

The Marketplace Fairness Act, S.1832, is a bill introduced in the United States Senate on November 9, 2011, that would provide states with the authority to require out-of-state retailers to collect and remit use tax on purchases shipped into the state. In return, states would be required to either join the Streamlined Sales and Use Tax Agreement or simplify their sales and use tax laws to comply with The Marketplace Fairness Act.

The bill would require any seller who sells a product or service to a consumer in a participating state to calculate, collect, and remit the consumer's use tax based on the tax rates of that other state. The purpose of the proposed law is to allow states to enforce use taxes that consumers often evade paying their home state when making interstate purchases.

Statement of purpose:

To restore States' sovereign rights to enforce State and local sales and use tax laws, and for other purposes. . . .

SECTION 2. SENSE OF CONGRESS. It is the sense of Congress that States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted, and the right to collect - or decide not to collect - taxes that are already owed under state law.

Opponents are concerned that the bill would impose an unrealistic burden on sellers and consumers, while proponents say that it would help retailers with a physical presence in sales-tax states to compete  with online retailers.

````Tonys667

Politician opponents

Why is it necessary to list the people running for office against the supporters of this bill? That seems superfluous. — Preceding unsigned comment added by 66.51.182.41 (talk) 22:27, 4 April 2013 (UTC)

It's the United States, those running for office are anything but superfluous and a lot of candidates (like those mentioned in this article) carry a lot of political weight, more than say some in actual office, and in any case major media outlets have reported on their responses further highlighting their importance and contributions to the debate. mijotoba (talk) 17:47, 6 June 2013 (UTC)

Disambiguation Page

Hi All! I just finished creating a disambiguation page for this article to separate it from the new "Marketplace Fairness Act of 2013" article that is about a newer version of this bill in the 113th Congress. This bill (S.1832) died in the last Congress (112th) and never became law. The new bill, with its new cosponsors, new congresspeople in office, and a brand new fight over passage should be distinguished from the old dead one. Based on the comparative page statistics, it seemed like most people looking for information about that bill (which is in a the news a lot now - there is a vote scheduled in the Senate for later today) were getting this old bill rather than that article about the new one. I created the disambiguation page to help people get up to date information and try to clarify things. If anyone wants to comment on this decision, I'd love to hear it. If you want to make the disambiguation page look nicer, that'd be great too - it's my first one. Thanks! HistoricMN44 (talk) 18:20, 23 April 2013 (UTC)

NPOV issue

There are 2 paragraphs (181 words) describing support for the MFA and 10 paragraphs (886 words) describing opposition to it. I find it hard to believe that our treatment isn't giving WP:UNDUE weight to MFA opponents. RJaguar3 | u | t 04:13, 23 November 2013 (UTC)

In a perfect world, people could keep their bias out of articles such as this. I do not feel there should be a word count in this, but a point counter point to each issue addressed. See above how editors are unable to agree who pays tax. As a holder of an MS degree in Economics, let me be clear. It does not matter who pays the tax, the end effect is the same, the "real" price goes up to the buyer. States can be considered markets of their own. Even municipalities can. If retailers must account for each jurisdictional tax for each item in inventory, their accounting costs go up, in addition to the "real price" of the item sold.

States have already mechanism for collecting taxes on out of state purchases. Some even offer rebates to vacationers from out of state. As a resident of a particular municipality that has a higher sales tax than in neighboring municipalities, a requirement exists to declare their tax jurisdiction when buying big ticket items; cars furniture etc.

This kind of got away from me. Short of an extensive rewrite with point/counterpoint style, the editors offended need to step up. After all "anyone can Edit". ~ К3вину (RSVP) (What) 21:09, 15 June 2014 (UTC)

'Supporters' and 'Opponents' sections - undue weight?

I'm wondering if there would be any consensus for a fairly drastic reduction of the both the 'supporters' and 'opponents' sections. First, both sections have NPOV problems, and seem to have to been edited by users who seem to be here to promote their respective POVs. Secondly, for an article that is supposed to be about proposed legislation, the rather large lists of supporters and opponents kind of overwhelm the content that is actually about said legislation, potentially in violation of WP:UNDUE. I mean, not every person or group that has ever been quoted about the legislation needs to have their own paragraph here, right? I'm very tempted to BOLDLY remove both sections and work on shrinking them down. Good idea? Bad idea? Couldn't care less? Please let me know. Cheers, Dawn Bard (talk) 00:04, 7 October 2014 (UTC)

Just read it after reading the ANI thread. The supporters and opponents sections seem far, far too long. Unless the opinions presented also highlight some substantive information of benefit to the reader, I'm not sure why we need a full quotation rather than just mention of the organisations and people in support or opposition to the bill. —Tom Morris (talk) 16:31, 7 October 2014 (UTC)

I am pruning some of the information in this section to this end. Iliketoeatpotatoesalot (talk) 20:53, 9 January 2015 (UTC)

Speaking of BOLDLY, and ahem, undue font weight, the Supporters section has every supporter prominently listed in Bold Type, where the Opponents section uses only normal type. This different typographic treatment unduly favors the supporters and is a definite NPOV issue itself. I'm not able to take the time to fix it right now, but wanted to at least note it for the record. I actually do like the boldface for easy scanning, so my suggestion would be use boldface the same way in the Opponents section. Michael Geary (talk) 22:30, 24 August 2017 (UTC)

2015-2016 legislation, other developments

• https://www.congress.gov/bill/114th-congress/senate-bill/698

• http://www.wsj.com/articles/states-seek-new-ways-to-tax-online-sales-1456262265?mod=djem10point

• http://www.jckonline.com/blogs/cutting-remarks/2016/05/19/why-blue-nile-no-longer-shipping-south-dakota

-- John Broughton (♫♫) 00:08, 26 May 2016 (UTC)

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How to fixed this outdated article

This bill for this article is from a decade ago and motivated by two court cases that are now overruled by the 2018 South Dakota v. Wayfair decision.

1. Change present tense description to past tense - this proposed law is almost 10 years old and the main reason for it is now moot.
2. Clean up the support & opposition section by shortening and consolidating it, making it less POV (like the double standard in boldfacing the supporters only), and fixing the link styles.
3. Perhaps add an "aftermath" section discussing Wayfair. 2603:8000:B600:4000:594E:BDFB:673E:973B (talk) 17:26, 25 November 2022 (UTC)

Changed the tense in various parts of the article, removed the unnecessary boldfacing, and restructured some of the statements to reflect that it is no longer the 113th Congress. The support/opposition section is still messy and might warrant a WP:TNT. 104.175.78.152 (talk) 18:52, 27 January 2024 (UTC)