FedTax Statement Submitted for the Record of the Senate Finance Committee (in support of Marketplace Fairness Act)

April 26, 2012

[Download PDF of FedTax Statement]

Statement Submitted for the Record to

The United States Senate Committee on Finance

Full Committee Hearing

Tax Reform and What It Means for

State and Local Tax and Fiscal Policy

April 25, 2012

 Dirksen Senate Office Building

Washington, DC 20510-6200

Attn:  Editorial and Document Section

Rm. SD-219

Statement submitted by

R. David L. Campbell[i]

Chief Executive Officer

and

Joan Wagnon[ii]

Executive Vice President

The Federal Tax Authority, LLC

162 East Avenue

Norwalk, CT. 06851-5715

Alexander Hamilton wrote in The Federalist in 1788 that “individual States should possess an independent and uncontrollable authority to raise their own revenues for the support of their own wants.”

Today the discussion about state sovereignty over matters of taxation continues unabated. State revenue directors have seen firsthand how the actions of the federal government have affected state and local revenues. Members of Congress are increasingly bombarded by requests for action because state laws are restrictive to business or seen as unfair. There are any numbers of examples where congressional action has been beneficial or harmful to states.

But the issue that has been most devastating to state and local government has resulted from Congressional inaction, rather than action: the failure of Congress to overturn Quill v North Dakota.[iii] 

The Marketplace Fairness Act (MFA), S. 1832, sponsored by a bipartisan group of senators (Enzi, Durbin, Alexander, et. al.) is a good solution to the revenue problems of states, but more importantly, it gives states a better mechanism than they have now to collect the taxes they already levy.[iv]

The MFA also corrects a growing imbalance between groups of retailers. Under the current court ruling, tax is collected on some sales and not on other sales of the exact same items. Why should tax be collected on a book or camera purchased from a local business and not on an identical item purchased from a mail order or internet business?

Remote sales are growing at double digit rates.[v] However, states’ inability to collect sales tax on these sales results in the erosion of the states’ tax bases. Certainly this unfairness is not the hallmark of good tax policy! Congress is creating winners and losers among the retail community by its inaction.

Opponents cite two specific reasons for allowing this unfair situation to continue: a) that remote collection would be overly burdensome and complex, and b) that any systems necessary for remote collection would be prohibitively costly. This testimony will provide technical information for Congress to consider when evaluating those arguments.

I.       The Complexity Argument

Technology has advanced considerably since the 1967 and 1992 Supreme Court rulings that created the current sales tax situation. Even the more recent of these, Quill, occurred before the first graphical browser was invented, before most homes had internet connections, and long before e-commerce forever changed the retail landscape. Today, forty-five years after Bellas Hess and twenty years after Quill, online marketplaces and auction sites easily manage millions of items for sale at any given moment.

Today, keeping track of a few thousand local tax rates and filing requirements is not an insurmountable technical, administrative, or financial burden. TaxCloud, the sales tax management system created by FedTax, proves this point by calculating and collecting sales tax on any purchase for any tax jurisdiction in the United States in less than one second. The service is free to all retailers.

The technologies necessary to create such a system are not new; they are well-established. In fact, they are currently being used throughout e-commerce. They are Application Programming Interfaces and Web Services. An Application Programming Interface (API) allows dissimilar and unrelated systems to communicate with each other using pre-established syntax and structure. Web Services allow APIs to be used for machine-to-machine interactions over the internet. Both are now commonly used in e-commerce—for example, in real-time-shipping, which allows a retailer to provide its customers with accurate, real-time quotes for shipping costs based on at least five variables, including weight, size, delivery speed, origin, and destination. Often customers can even compare shipping costs among multiple shippers.

With APIs, Web Services, and other technological advances of the past twenty years, it is now possible for remote retailers to easily keep track of every state’s tax laws. 

To minimize or completely eliminate the undue burdens cited in Bellas Hess and Quill, more than half of the states with sales tax have worked together for twelve years to create the Streamlined Sales and Use Tax Agreement (SSUTA). These states provide free rates and boundaries databases for all of their respective taxing jurisdictions, and regularly issue updates when rules, rates, or boundaries change. In addition these states also certify and pay for software and service providers to manage sales tax compliance on behalf of retailers.[vi] The Marketplace Fairness Act requires that any states seeking remote collection authority shall comply with SSUTA or provide comparable rates and boundaries information as well as certified software and services that retailers can rely upon to achieve compliance with minimal burden.[vii]

Ironically, those who argue most strenuously that remote collection would be too complex are a few large online businesses that already rely on these same technologies every day, in every transaction. The plain fact is that online retailers operate the largest marketplaces in the world by relying on technology to simplify and automate a host of historically burdensome chores, including payment automation, location-specific marketing, personalized recommendations, and even Duties and Value Added Tax management for foreign governments.

II.        The Costs-of-Compliance or Undue Burden Argument

Opponents also argue that even if technology can solve the technical burden of keeping track of rates, jurisdictions, and filing complexities, such software would be prohibitively costly, particularly for small businesses. TaxCloud is provided to retailers at no cost—so the argument that such software would be prohibitively costly should be flatly disregarded. However, the costs-of-compliance argument also maintains that even if the software is free, businesses will still be burdened with the cost of integrating such software into their existing systems.

This line of argument ignores the reality that all but the very largest retailers rely upon pre-written software and/or online hosted platforms for e-commerce and order management. Retailers rely upon these systems to avoid the costs of developing, managing, and maintaining such systems on their own, costs that are magnified by the changing nature of e-commerce. It is no secret that e-commerce is constantly changing to respond to evolving cyber-crime threats, payments and security industry best-practices, and, yes, legislative requirements. When their retailer clients need to collect sales tax, platform vendors will provide ways for them to do so, embedded within the platforms that retailers already use.

E-commerce platform vendors are intensely competitive and focused; they take pride in not only complying with evolving requirements but often surpassing them, occasionally with stunning results. For example, much of the cloud computing infrastructure now transforming every corner of the technology sector can be traced to several of the largest e-commerce companies adapting to comply with the Sarbanes Oxley Act of 2002. Most platforms already provide basic sales tax management features for their clients. Upon enactment of MFA, these existing systems will quickly be adapted to ensure compliance.

To conclude, modern technology has made it easy for retailers to collect sales tax for any state in the U.S. TaxCloud enables retailers of any size to easily collect sales tax and comply with the provisions of The Marketplace Fairness Act—for free. More information is available at TaxCloud.net.

And in addition to TaxCloud, five other companies are certified by the Streamlined Sales Tax Governing Board and ready to assist when Congress authorizes collection—and no doubt hundreds more will emerge soon after legislation is passed, because the free-market system will provide the incentive for entrepreneurs and innovators to develop these products.

Please don’t wait to enact the Marketplace Fairness Act until all the parts of tax reform are in place. Passing this one bill can be the foundation for future reform as well as provide great benefit to both state and local governments. It also benefits brick and mortar retailers. Creating the same tax collection system for retailers whether they sell online or in a store is only fair.

/R. David L. Campbell/
R. David L. Campbell
Chief Executive Officer
/Joan Wagnon/
Joan Wagnon
Executive Vice President

[Download PDF of FedTax Senate Finance Committee Statement - 4/25/2012]


[i] David Campbell, Chief Executive Officer of The Federal Tax Authority (FedTax), founded the company in 2008. FedTax is a Washington State Limited Liability Company with operations in Washington, Connecticut, and Kansas.  Its management team includes highly experienced professionals who have been directly involved in building some of the most recognizable brands in e-commerce, including MasterCard, Google, WebMD, Microsoft, Expedia, and American Express.

[ii] Joan Wagnon served as Secretary of Revenue in Kansas from 2003 to 2011. She also chaired the Streamlined Sales Tax Governing Board in 2008-9 and the Multistate Tax Commission from 2006 to 2008. She served on the Board of Directors of the Federation of Tax Administrators for 8 years before joining FedTax to work toward the passage of federal legislation granting states’ collection authority over remote sales.

[iii] The notion that out-of-state retailers would find it overly burdensome to keep track of every state’s sales tax rules can be traced directly to the 1967 Supreme Court ruling in National Bellas Hess v. Illinois Department of Revenue. In its majority opinion, the court ruled thatthe many variations in rates of tax, in allowable exemptions, and in administrative and record-keeping requirements could entangle National’s interstate business in a virtual welter of complicated obligations to local jurisdictions” (emphasis added).

In 1992, the matter of remote sales tax collection came before the Supreme Court again in Quill v. North Dakota. This time, the court reaffirmed the earlier Bellas Hess decision by a ruling of 8 to 1, primarily on the basis of stare decisis. The ruling went on to state, “[O]ur decision is made easier by the fact that the underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve.”

FedTax frequently cites the earlier Bellas Hess quote because it summarizes the ruling’s basis in complexity and burden, which has rippled forward to the present day and created a tidal wave of unintended consequences. This ruling has shielded all out-of-state retailers from the obligation to collect sales tax, based purely on the notion that it would place too much of a burden on businesses. Perhaps it would have, in 1967. That was the year the floppy disk was invented at IBM.

[iv] States typically depend on voluntary means of collecting from individuals, such as a voluntary line on the income tax form. Audit procedures, which are used for businesses, are ineffective for consumers.

[v] On Cyber Monday (the first Monday after Thanksgiving) in 2011, over $1.2 billion in sales were transacted online. On that day alone, approximately $58 million in sales tax went uncollected.

[vi] FedTax has been designated a Certified Service Provider (CSP) by the Streamlined Sales Tax Governing Board specifically for its TaxCloud service. There are six CSPs and 24 member and associate member states.

[vii] Although “software and services” is not defined in the Marketplace Fairness Act, likely it will include Application Programming Interfaces (APIs), Web Services, rates and boundaries databases, and a process for certifying service providers to process returns accurately under state laws.

[Download PDF of FedTax Senate Finance Committee Statement - 4/25/2012]


Census figures point to new estimates for 2011 e-commerce

May 24, 2011
US Census Bureau: New E-Stats

US Census Bureau: New E-Stats

The Census Bureau released new retail figures last week, including figures for e-commerce sales in the first quarter of 2011.

We did a little math to figure out, based on those first-quarter figures, how much we can expect in e-commerce sales for this entire year. We averaged the ratios of first-quarter e-commerce sales to total e-commerce sales for 2009 and 2010, which gave us a figure of 4.24—in other words, the total e-commerce sales for the past two years have averaged about 4.24 times as much as the first-quarter sales.

Previous Two Years E-Commerce Retail Sales (in Millions)
2009 Q1 2009 FYE ’09 FYE/Q1 2010 Q1 2010 FYE ’10 FYE/Q1 Avg. Ratio
$34,151 $144,462 4.23 $39,159 $166,529 4.25 4.24

Using that ratio for 2011, we multiplied the first quarter e-commerce sales figure of $46 billion by 4.24 to get just over $195 billion. We should point out this figure does not include sales from online auctions, mail-order catalogs, telephone orders, or TV shopping networks.

Now for the most interesting part: how much sales tax (or use tax) due will actually be collected/remitted?

At the current average sales tax rate of 6.85% percent, the total sales tax due on $195 billion is approximately $13.5 billion. However, according to California’s Board of Equalization, typically only four-tenths of one percent (0.04%) of the tax due on e-commerce sales is collected. Which means that (drum roll, please). . .

Although about $13.5 billion will be due, the states can expect only $53 million in revenue, unless Congress takes action by enacting the Main Street Fairness Act. With our states in such dire fiscal condition, we hope Congress will allow states to simply collect the tax that is due, instead of raising taxes.


Small businesses and online sales tax

April 28, 2011
Illinois Statehouse News

Illinois Statehouse News

An article in the Illinois Statehouse News highlights local retailers’ take on legislation that would require online retailers to collect sales tax:

Smaller, brick-and-mortar stores, however, say the new state law  — and the proposed federal initiative — will make it easier to compete.

“We know it’s a competitive environment. We have to compete to be viable, but we should be on a level playing field with our online sellers,” said Bob Thompson, owner of BikeTek, a bicycle shop in Springfield.

Lamsargis, owner of Springfield Running Center, an athletic apparel and shoe store in Springfield, said he’s had customers come into his store asking him to match prices they found online without the sales tax.

“Even though we give a little bit of a discount to locals, we cannot match the discounts given by the big companies that don’t have the bricks and mortar,” Sargis said.

Some small online retailers are concerned, however, about their ability to collect sales tax:

Brandi Tolley, who runs a men’s apparel eBay store, called the measure a “desperate” way for states to pull in revenue. Her store earns about $35,000 in sales annually, Tolley said.
“A lot of us are small businesses. We don’t have huge brick-and-mortar stores. We’re just tiny businesses trying to make it,” Tolley said.

But the truth is, it’s not difficult for a retailer of any size to collect sales tax online. FedTax.net was founded to provide a solution for retailers, and TaxCloud has been designed to be easy to use for even a single person operating a sole proprietorship.

It’s also important to note that the store owner quoted is an eBay store owner; the same article includes a quote critical of the legislation from an eBay executive. But we find it odd that eBay is so opposed to the Main Street Fairness Act. EBay manages not thousands but millions of live auctions every day, so it’s hard to believe that they really would find collecting sales tax too complicated.

It seems that eBay should be able to offer sales tax collection as a service for its users, just as many shopping cart services do. In fact, TaxCloud has been integrated with several shopping carts, and we’d welcome the opportunity to integrate with eBay, too—it would make collecting sales tax easy for even the smallest eBay store owner.


The Atlantic: “Why aren’t more states pursuing online sales tax?”

April 6, 2011

An article in The Atlantic asks a great question: “Why aren’t more states pursuing online sales tax?”

The article discusses the reasons that states should (and, in all likelihood, do) want to pursue online taxes: the severity of state budget crises, the amount of money online sales tax should bring in. (The Atlantic estimates the total amount of uncollected sales tax to be about $7 billion; as they say, “This isn’t going to solve all of [states'] budgetary problems, but it certainly would help.”)

Then they focus on what they see as the primary obstacle to collecting sales tax online: logistics.

Now think about Internet sales. Online shops are located across the world. An online retailer can sell an item in any state. It would have to have every state’s sales tax built into its website’s framework to provide customers with the correct after tax total cost for their shopping. And that doesn’t even bring local taxes into account, as some cities require additional sales tax as well. This could get quite complicated.

We’re happy to report that the solution to the logistics problem already exists. It’s called TaxCloud.

TaxCloud is a comprehensive sales tax management service that calculates the sales tax due on any purchase anywhere in the country. It also monitors every tax code and automatically updates any changes, so that retailers using TaxCloud stay in compliance with local tax laws with zero effort. TaxCloud also generates state-by-state monthly reports, files state sales tax returns, handles tax exemptions and audits, and more. (To learn more, visit the TaxCloud website.)

TaxCloud is easy to use and takes just 20 minutes to set up. And, since it’s completely free—there’s no set-up fee, no transaction fee, no fee of any kind—it’s perfect for small retailers that don’t have the resources of Amazon.

Calculating sales tax is no more difficult than calculating shipping rates in real time, something most online retailers do. And with services like TaxCloud available for free, we can’t imagine that any online retailer would find it difficult or costly to collect sales tax.


“Amazon’s multi-state sales tax battles are a sideshow to the real national solution…”

March 11, 2011

This article by Curt Woodward, senior editor of Xconomy Seattle, points out that the best long-term solution to the problem of uncollected sales tax is for states to join the Streamlined Sales Tax effort and for the federal government to enact legislation such as the Main Street Fairness Act.

The volley of lawsuits, rhetoric from fired-up tax collectors, and Amazon’s hardball response tactics are certainly entertaining to watch from afar. But any real resolution will almost certainly come from a much more boring, slow-moving effort to get state sales taxes on a common source code, and then change the federal laws.

The article goes on to highlight Washington State’s efforts on behalf of the Streamlined Sales and Use Tax Agreement (SSUTA). In fact, it was Washington’s decision to join SSUTA that spurred FedTax’s founders to create TaxCloud, our free, easy-to-use tax calculation and remittance service.

TaxCloud is the only service designed specifically to comply with SSUTA at a scale that supports all online retailers. TaxCloud is easy for retailers to integrate with their current systems—from sign-up to tax collection takes just 20 minutes.


Joan Wagnon, former Kansas Secretary of Revenue, joins FedTax

March 10, 2011

Leader in Streamlined Sales Tax effort will now champion the company’s TaxCloud service

Seattle, Washington – March 10, 2011 – FedTax, a private company committed to making it easy for online retailers to collect sales tax, today announced the appointment of Joan Wagnon as Executive Vice President. Ms. Wagnon brings more than twenty-five years of experience in government and financial services to the role.

“We are honored to have Joan on our team,” said R. David L. Campbell, Chief Executive Officer. “Joan’s experience as secretary of revenue for the State of Kansas and as president of the Streamlined Sales Tax Governing Board are invaluable assets to FedTax as we roll out TaxCloud, our sales tax management service, nationwide.” Ms. Wagnon has also served as chair of the Multistate Tax Commission and on the board of directors for the Federation of Tax Administrators. She has a long record of distinguished public service; in addition to serving as secretary of revenue for the past eight years, a position she left only a month ago, she was also the mayor of Topeka, Kansas, from 1997 to 2001 and a legislator in the Kansas House of Representatives from 1983 to 1994.

In addition to Ms. Wagnon’s extensive background in state and local government, she was president of the Central National Bank in Topeka from 2001 to 2003 and served on their board of directors until 2009.

Ms. Wagnon’s experience with state and local government is particularly relevant as states throughout the nation are facing record budget shortfalls, due in part to a decline in sales tax revenue as more shoppers buy online and avoid paying sales tax. According to a 2009 study by researchers at the University of Tennessee, this year alone states will lose over $23 billion in uncollected sales tax. Although states cannot currently require out-of-state retailers to collect sales tax, the Main Street Fairness Act, which is expected to be introduced soon in Congress, would change that, thus helping states to recover lost sales tax revenue and close their budget gaps. The bill would also level the playing field between local retailers that have to collect sales tax and online retailers that don’t.

In her work with the Streamlined Sales and Use Tax Agreement (SSUTA), Ms. Wagnon strove to make the collection and administration of sales tax easier and more affordable for states and retailers alike. She is thus a natural fit for FedTax, whose TaxCloud sales tax management service makes collecting sales tax easy for retailers of any size, at no cost to the retailer.

“FedTax represents the logical progression of my career,” Ms. Wagnon said. “I’m happy to continue my work in support of fair and neutral sales tax collection as part of FedTax. And I’m looking forward to continuing to make the case that with technology like TaxCloud, it’s easy for any retailer to collect sales tax online.”

TaxCloud instantly calculates the sales tax rate for any address in the U.S., monitors tax codes, and automatically incorporates any changes—so all TaxCloud retailers maintain compliance with sales tax laws with zero effort. TaxCloud also manages exemption certificates, generates reports, and automatically files state-by-state sales tax returns for retailers, all at no charge to retailers.

“TaxCloud reflects the guiding principles of the Streamlined Sales and Use Tax Agreement —that sales tax collection can be easy for any retailer,” said Ms. Wagnon. “FedTax has created a secure, scalable, elegant solution, and best of all, they’re offering it to retailers for free.”

About FedTax

FedTax is a private company that is committed to making it easy for online retailers to calculate, collect, and remit sales tax. It was founded by technology veterans with extensive experience in the large-scale development, deployment, and support of internet-based services in environments with extremely high transaction volumes and financially sensitive information. The management team has been directly involved in building some of the most recognizable brands in e-commerce, including MasterCard, Google, Microsoft, and Expedia.

FedTax has been designated a Certified Service Provider by the Streamlined Sales Tax Governing Board. The company’s TaxCloud service enables e-commerce retailers to easily calculate and remit sales tax across the country. TaxCloud is free to retailers and can be easily integrated into virtually any accounting or e-commerce shopping cart system.

FedTax is headquartered in Seattle, Washington, and has offices in Norwalk, Connecticut, Issaquah, Washington, and now Topeka, Kansas.

Contact:
Beatrice Vaccaro
The Federal Tax Authority
bvaccaro@FedTax.net
+1 206-452-1686


North Carolina settles with ACLU

February 10, 2011

The ACLU announced yesterday, February 9, that it had settled its case against the North Carolina Department of Revenue over the customer purchase information released by Amazon in response to a DOR request.  More information is contained in this Daily Tech article.

Amazon itself filed a similar suit against North Carolina. As we blogged about the ruling in that case last October, the decision was not a clear victory for Amazon. The court ruled that North Carolina has the right to ask Amazon for general information about customer purchases, but not for specific purchase information, such as the titles of books bought by an individual.  The court also ruled that North Carolina can pursue Amazon for the sales tax that was justly due to the state.  This statement from Beth Stevenson of the North Carolina Department of Revenue explains the fundamentals of the case:

“The case between the North Carolina Department of Revenue and Amazon has long been twisted into something it is not,” said Beth Stevenson, spokeswoman for the North Carolina Department of Revenue. “Bottom line, this is about fairly collecting the tax that is due to the state of North Carolina and nothing more. The Department has always maintained that we do not need—or wanttitles or similar details about products purchased by Amazon customers. The department voluntarily destroyed the detailed information that Amazon unnecessarily provided and offered them the opportunity to comply with the state tax laws moving forward.

“The lawsuit on this particular issue could have been avoided altogether if not for the aggressive stance Amazon took to avoid compliance with North Carolina’s tax laws. There would have never been an issue of customer privacy if Amazon would simply collect the North Carolina sales tax that others already do.”

It’s not surprising that North Carolina is trying its best to collect the sales tax that is due on those purchases. This article from Storefront Backtalk says that only 6% of North Carolinians took advantage of North Carolina’s eTail sales tax amnesty program last year.

The Streamlined Sales and Use Tax Agreement (SSUTA)—of which North Carolina is a member—in conjunction with federal legislation such as the Main Street Fairness Act, will eliminate the need for states to craft individual strategies to collect the taxes that are already due them.


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