Massachusetts considers affiliate nexus bills

May 31, 2011

Massachusetts is considering two bills, one from the House and one from the Senate, that would require online retailers with Massachusetts affiliates to collect sales tax.

According to this article in the Cape Cod Times, a University of Tennessee study puts Massachusetts’ annual sales tax losses at $11.4 billion by 2012. The same article states that the senator sponsoring the bill, Senator Steven A. Tolman, hopes to recover that money in order to fund services that have been cut due to the recession:

Tolman said the tax money is needed to invest in state programs that had to be cut in the recession.

“In these times of tight state budgets and the reduction or elimination of many state-funded programs, Massachusetts can no longer afford to subsidize Internet and catalogue retailers by not collecting sales tax on purchases made by residents of Massachusetts,” Tolman wrote in an email.

Tolman said what essentially are tax-free sales gives online vendors an unfair advantage over bricks-and-mortar stores.

“The current law penalizes Massachusetts’ main street retailers and gives those without a physical presence in Massachusetts a 6.25 percent head start,” he said.

Michael Mazerov, an official from the Center on Budget and Policy Priorities, also commented on states’ need for sales tax revenue:

“State and local governments are losing billions of dollars a year in revenue that they need to provide education, health care, police protection and a whole other range of services,” he said.

Mazerov said the government is already entitled to this tax money; its absence has added to state budget woes.

“Particularly now, with the downturn of a depressed economy, local governments are losing lots of revenue that they’re legally entitled to receive,” he said. “These are not new taxes. We are talking about collecting sales tax on things that are taxable if you buy it in the store.”

Both Tolman and Mazerov make good points, and we agree that online retailers should collect sales tax, just as local retailers do. However, we don’t believe that bills like these, which target online retailers that use affiliate marketers, are the best solution.

When other states have passed these kinds of affiliate nexus laws, online retailers have responded by simply ending their affiliate relationships in the state. These laws end up hurting small businesses in the state that rely on affiliate marketing income and do not bring in any additional sales tax revenue.

A better solution is the Streamlined Sales and Use Tax Agreement (SSUTA) and the federal Main Street Fairness Act. States that join SSUTA implement its sales tax guidelines to make collecting sales tax for more than one state easy for retailers. The Main Street Fairness Act would, in turn, allow SSUTA member states to require online retailers to collect sales tax.

It makes sense: Only those states that have made it easy for online retailers to collect sales tax would be allowed to require online retailers to do so, and retailers with affiliates wouldn’t be singled out.

Everyone would play by the same rules. And isn’t that the best solution for everyone?


An interview with the head of the Streamlined Sales Tax Governing Board

May 23, 2011
Governing

Governing

An interview with Scott Peterson, executive director of the Streamlined Sales Tax Governing Board, has been published on Governing magazine’s website. It’s a fascinating article; we recommend you read the entire thing in order to get a good idea of what Streamlined stands for (in a word: simplification) and how Peterson feels about affiliate nexus legislation (called “Amazon laws” or “click-through legislation” in the interview).

We have to quote just one part of the interview, however:

What we care most about is how to make state sales and use taxes simpler and more uniform for those collecting the tax. What’s going on now is all about money. Money is important but our initial effort was aimed at taking a tax that was 80 years old and bringing it into the 21st century.

That is the clearest statement of Streamlined’s goals that we’ve seen, and we hope people are listening. Laws have struggled to catch up with technology in many areas, and sales tax is no different. It’s past time to make sales tax laws reflect the realities of present-day technology, which makes it easy for any online retailer to collect sales tax. Just look at TaxCloud.


AICPA opposes MTC sales and use tax statute, and so do we

May 20, 2011

The American Institute of CPAs is opposing a model statute proposed by the Multistate Tax Commission that would require out-of-state retailers to supply residents’ purchase information to states in an effort to increase use tax compliance, according to an article in the Journal of Accountancy. You can read the AICPA’s letter to the MTC detailing its objections to the statute here.

We too oppose the proposed model statute. We have long been concerned about the invasion of consumer privacy inherent in reporting consumers’ purchases to the state, and in fact a federal judge has placed an injunction on a Colorado law instituting similar reporting requirements.

The right way to ensure use tax compliance is not to report consumers’ purchases to the state, but instead to shift the remittance of sales and use tax from the consumer to the retailer. Multistate retailers, like local retailers, should be the ones to collect and remit sales tax, not the consumer.

The Streamlined Sales Tax initiative has worked hard to make it easy for multistate retailers to collect and remit sales tax. It was nice to see the AICPA acknowledge that in their letter, and as they point out, the proposed model statute would ignore all that work. Instead of trying to reinvent the wheel, let’s build on the good work already accomplished by Streamlined and focus on making it possible for states that have adopted Streamlined’s guidelines, and therefore have made it easy for multistate retailers to collect sales tax, to require those retailers to collect sales tax.


Washington State calls on Congress to enact the Main Street Fairness Act

May 10, 2011

The State of Washington’s Senate has passed a resolution (SJM 8009) urging Congress to pass the anticipated Main Street Fairness Act. Now the resolution has been passed to the House Ways and Means committee.

We were interested to see the testimony on the issue before the Senate Ways and Means Committee last week. Among those speaking in support of the resolution (and, therefore, the Main Street Fairness Act) was Steve Gano, a lobbyist who testified on behalf of Walmart.

Said Gano:

I’m here today in support of this measure [on behalf of] Walmart stores. Walmart is both a brick-and-mortar store and an online presence. We see a constant eroding away from the brick-and-mortar stores as residents continue to shop online. We believe this to be [an issue] of fairness in the sense that [an online] operator . . . automatically has a ten percent, on average, . . . price advantage against a typical brick-and-mortar store [which] will continue to see [their sales] erode . . . .

We would encourage . . . a comprehensive approach that Congress could deal with as opposed to some of the state-by-state approaches that we see many states attempting to do.

You can view Mr. Gano’s entire testimony, as well as that of others, here—Mr. Gano begins at 00:06:53.

The Minnesota legislature is considering a similar resolution (SF 1344).

We’re glad to see states making their support of the Main Street Fairness Act loud and clear, and we hope that more states will adopt these resolutions.


CBS Sacramento: California may monitor online purchases

May 4, 2011

CBS SacramentoCBS 13 in Sacramento reports that California’s Board of Equalization is considering hiring “private vendors to track down what you purchase over the Internet.”

The idea is that if the state government knows what a consumer has purchased online, it can make sure the consumer has paid the correct amount of sales tax.

Colorado has implemented a similar program, but earlier this year a federal court granted an injunction preventing the state from enforcing that legislation.

Like most people quoted in the article, we’re alarmed at this potential invasion of consumers’ privacy. Luckily, it appears that the suggestion is so controversial that it has been removed from the agenda for further study.

There’s a much easier, less controversial way for California to begin to recoup the over $1 billion in California sales tax on online purchases that goes uncollected each year: Join the Streamlined Sales and Use Tax Agreement (SSUTA) to make it easy for online retailers to collect sales tax for multiple states, and send a message to Congress that it’s time for federal legislation allowing states to require online retailers to collect sales tax.


Kaumaha news from Hawaii

May 3, 2011
Kaumaha news from Hawaii

Kaumaha news from Hawaii

We’ve just learned that the word for “sad” in Hawaiian is “kaumaha.”

We learned this word because we just found out that two sales tax–related bills, one to join the Streamlined Sales and Use Tax Agreement (SSUTA) and one to enact an affiliate nexus law, have died in committee in Hawaii.

Although we are glad that in-state affiliates won’t be hurt by an affiliate nexus law, as has happened in so many other states, it’s too bad that the bill to join SSUTA also failed to make it out of conference committee.

SSUTA’s purpose is to make it easy for multistate retailers to collect sales tax. There’s just one sales tax return form for every SSUTA member state, and SSUTA’s guidelines simplify sales tax regulations so that a retailer knows item are taxed the same way in every SSUTA state.

Twenty-four states are currently members of SSUTA. For multistate retailers that sell in Hawaii, it’s too bad that Hawaii won’t have a chance be the twenty-fifth (until next year).


Letter to the editor: States need to act

May 2, 2011
MetroWest Daily News

MetroWest Daily News

This letter to the editor in the MetroWest Daily News (MA) brings up an important point about states’ actions toward online sales tax.

While the writer acknowledges that the newspaper had “hit a homerun” in their article on online sales tax by explaining that “the tax advantage on-line retailers get is unfair and a serious problem,” he goes on to criticize the paper for “passing the issue off to the federal government.” He says:

Yes, a federal solution is needed and is warranted. But states shouldn’t be expected to do nothing and just sit around and wait for a federal solution; rather they need to do everything they can to raise the profile of this issue so the feds finally do stand up and act. 

He’s absolutely right, states need to send Congress the message that they should create a federal solution. But what he doesn’t mention is that the best way for states to do this is to join the Streamlined Sales and Use Tax Agreement.

Becoming a member of Streamlined has two advantages for states: First, 24 states are currently members, and as that number rises, it will become clear to Congress that states need a federal law allowing them to require online retailers to collect sales tax—since the entire reason states join Streamlined is to make the online collection of sales tax easier for both states and retailers.

Which leads to the second advantage: By becoming a member of Streamlined and adopting its guidelines, which simplify and standardize sales tax categories and definitions to make collecting sales tax online easier, states prepare themselves for the moment when legislation does pass. As soon as the bill becomes law, a Streamlined state will be ready to hit the ground running and enable online retailers to easily collect sales tax for that state.

The writer of the letter to editor makes a good point:

If [Massachusetts] were able to collect the online sales tax it may have not been necessary to raise the tax from 5 percent to 6.25 percent. The state lost a lot of revenue, especially around the holidays. With the increase of online sales, this problem is only going to get worse, not better, and the residents of Massachusetts will suffer in the long run. 

Congress needs to pass a law allowing states to require online retailers to collect sales tax—a law like the Main Street Fairness Act, which will soon be introduced in Congress. The best way for states to let Congress know that they need that legislation is to join the Streamlined Sales and Use Tax Agreement.


Lots of errors in Orange Country Register editorial

April 21, 2011
Editorial: New Durbin bill targets e-commerce

Editorial: New Durbin bill targets e-commerce

A recent editorial in the Orange County (CA) Register combines in one place nearly every misconception and outright error we’ve heard about the Main Street Fairness Act.

Let’s start with one we often see: “It raises taxes.” This is unequivocally wrong. The Main Street Fairness Act would not create a new tax or raise current taxes. Sales tax is already due on online purchases; it’s just not necessarily collected by the retailer at the point of purchase. If it’s not, consumers are required by law to send the tax directly to the state. Few do, but that doesn’t change the fact that they are supposed to. By allowing states to require online retailers to collect sales tax, the Main Street Fairness Act would simply shift the remitting requirement from consumers to retailers.

Here’s another one:

We believe that taxes should have a reasonable connection to the government benefits they support. While out-of-state retailers don’t charge sales taxes, they also don’t reap any of the benefits from another state’s government. Out-of-state businesses never contribute to the wear-and-tear on state highways, public safety needs, or other basic infrastructure costs.

We also believe that taxes should “have a reasonable connection to the government benefits they support.” Which is why sales taxes, paid by the consumer, go to fund vital services in the consumer’s community, such as police, firefighters, schools, libraries, parks, road maintenance, and more. The out-of-state retailer doesn’t benefit from these services in other communities, but they also don’t pay for them. Online sales tax is destination-based, which means that the sales tax the shopper pays always goes to the shopper’s state and community. Out-of-state retailers don’t contribute anything to other states’ governments and communities, and the Main Street Fairness Act wouldn’t change that.

Then there’s this: “It would be nearly impossible for online businesses to comply with the nation’s patchwork of sales tax laws.” That’s hogwash! Calculating the sales tax due on a purchase is no more difficult than calculating shipping costs in real time, something nearly every online retailer does. With today’s technology, it’s not a problem for online retailers to collect sales tax for every tax jurisdiction in the country. The editorial says that “no business could keep track of every jurisdiction’s fluctuating rates and regulations.” That may have been true at one point, but it’s not true any longer—in fact, our company was founded specifically to solve that problem. Our TaxCloud service, which is available for free, automates all the work associated with collecting sales tax for retailers of any size, even sole proprietorships. We’re doing everything we can to shout from the mountaintops that collecting sales tax online is easy.

The editorial also creates an impression of the Streamlined Sales Tax Governing Board as a shadowy group of taxmen who want to overthrow the country’s tax rules in order to raise taxes. This is ridiculous, and nothing could be further from the truth. The entire purpose of the Streamlined Sales and Use Tax Agreement (SSUTA) is to make collecting sales tax easier for retailers.

The SSUTA is the result of over 10 years of work by 44 states, the business community, and local governments with the goal of reducing the costs and administrative burdens of collecting sales tax for retailers and governments alike. It does this by simplifying common tax definitions (so that the category “candy,” for instance, means the same thing in every state), standardizing reporting procedures so that retailers don’t have to submit different tax returns to each state, and standardizing critical sales tax data (e.g., sales tax rates, tax base definitions, and jurisdictional boundary definitions) so they can be consistently and systematically applied in all states. All this is designed to make it easy for out-of-state retailers to comply with local sales tax laws and collect sales tax for multiple states.

Please note, because this is important: The Streamlined Sales Tax Governing Board does not have the power to raise taxes. States that are members of SSUTA still set their own tax rates through their elected representatives.

The governing board is composed entirely of state officials—elected representatives or appointed officials—four from each SSUTA member state. You can read more about who serves on the governing board here; in fact, the entire agreement that states sign on to when they join SSUTA is available on the Streamlined Sales Tax website, along with a large library of other documents. Plus, any member of the public can attend the meetings of the governing board. It’s hard to imagine how the governing board could have made their organization more open and transparent.

And let’s not forget, no one is forcing states to join SSUTA. Each state decides on its own, through its normal legislative process, whether or not to adopt SSUTA guidelines and join SSUTA. Enactment of the Main Street Fairness Act will not change that.

The editorial ends with this completely untrue statement: “It’s true that online businesses reduce consumers’ sales tax burdens.” Actually, as long as online retailers don’t collect sales tax, they’re increasing consumers’ sales tax burdens. Just because they don’t collect sales tax doesn’t mean sales tax isn’t due—as we said earlier, it is, and when the retailer doesn’t collect it the law requires the consumer to send it directly to the state. We think it imposes a burden on consumers to require them to keep track of their online purchases, calculate the sales tax due on them, and add that amount to their annual tax returns. If online retailers collect sales tax, consumers have to do none of that.

But it’s primarily two groups that are being hurt most by the current situation: local retailers, who do have to collect sales tax and who are losing the fight to compete with online retailers, and local communities, which are suffering massive cuts to vital services because the proceeds from voter-approved sales taxes are rapidly evaporating as more and more retail commerce moves online.

Last year, California lost at least $1.4 billion in unpaid sales tax on online purchases. That’s $1.4 billion that the state should have received and did not, simply because online retailers chose to not collect it.

Would the collection of online sales tax solve all of California’s money woes? No, of course not. Would it be a huge help? Absolutely.

The Orange Country Register itself has written extensively on the local effects of service cuts due to lack of funds: “Money troubles cut into firefighting resources“; “County transit slashes bus service, cuts 400 jobs“; “OC health providers brace for state cuts“; “County’s Health Care Agency slashes services“; “Governor’s cut to housing assistance hits local seniors“; “O.C. law enforcement criticizes proposed early release of prisoners“; “O.C. lays off 210 county workers“; “Local schools brace for more cuts after proposition fails“; “O.C. officials worried about prison cuts.”

Times are tough. Collecting online sales tax can make things a little easier, without creating a new tax or raising taxes.


“There’s an app for that”: Fox Business on taxing internet sales

April 18, 2011

Fox Business Video

This video on Fox Business News, featuring Steve DelBianco from NetChoice, covers Senator Dick Durbin’s (D-IL) expected introduction of the Main Street Fairness Act. The host does a good job of keeping the discussion factual and fair and makes the point that, depending on the website you buy from, you may already be paying the sales tax at the point of purchase.

One of the co-hosts poses this question: If  “for many years on the internet we wanted to keep our hands off it, let’s not tax it, we didn’t want to stop it from growing . . . since when did the internet become fair game for new taxes and new restrictions?”

Again, this is not a new tax, and as for internet sales being fair game, yesterday’s New York Post article (blogged about here) stated that “some reports indicate that online sales hit a whopping $165 billion in 2010—an annual growth rate close to 15 percent.”

Steve DelBianco makes a few points that we are in complete agreement with:  “To call it an online sales tax is really not helpful”; “every business, whether you are online, catalog or store, you all collect sales tax”; “there’s never been anything like an online sales tax exemption”; “Senator Durbin has . . . been brought in to support the state system—this is not one new rate and this is not one new tax.”

Our favorite moment in the video came at the end when, in response to the question of technical feasibility, the co-host says, “There’s an app for that.” Yes indeed, there is—TaxCloud—and it is easy to implement, easy to operate, and completely free to retailers.


Op-ed in Boston Globe glosses over the issues

April 18, 2011
Boston Globe

Boston Globe

Yesterday’s op-ed in the Boston Globe is severely flawed and glosses over the essential facts of the sales tax collection issue.

Jeff Jacoby’s piece, “There’s no fairness in taxing e-sales”, starts off by stating that the legislation expected to be introduced by Senator Durbin “would subject millions of American consumers to ‘excessive’ fees they have long been sheltered from:  sales taxes on their online purchases.”  Sales taxes on online purchases are not excessive fees that consumers have been sheltered from—this is a tax that consumers have been legally obligated to pay to the state of Massachusetts since 1967.

The op-ed goes on to state that Durbin’s bill will undo the longstanding rule of “substantial nexus” that “comes from the Supreme Court, which has confirmed the no-nexus-no-tax rules in a a line of cases stretching back more than 40 years.” The op-ed fails to elaborate on those Supreme Court rulings—Bellas Hess (1967) and Quill (1992)—which stated that a remote retailer (then mail-order catalogs) should be obligated to collect sales tax just as a local retailer must but also conceded that unlike a local retailer, a remote retailer would be “entangled in a virtual welter of administrative and record keeping burdens.”  The 1967 ruling ultimately placed the issue before Congress:  “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.  No matter how we evaluate the burdens that use taxes impose on interstate commerce, Congress remains free to disagree with our conclusions.”

The op-ed points out that Main Street businesses have some competitive advantages: the ability to attract customers with window displays, the ability to play up ties to the community, and the ability to give consumers a way to “try on items before buying them.” That is true, but from the Main Street retailers’ point of view it looks like this: Shoppers come into their stores, browse and ask the clerks questions, and then say “Thanks, I’m going to go order it online.”  This seems to be especially true of high-end products where the sales tax can amount to over a hundred dollars, like electronics and cameras.

The op-ed also makes the argument that “taxes paid should bear some relations to services received, and merchants with no ‘substantial nexus’ to a state receive no services from it. They don’t use its firefighters or sewers, don’t send their kids to its schools, and don’t expect it to plow their streets after a blizzard.” But the location of the store is irrelevant. Sales tax is paid by the consumer, not the retailer, and it’s destination-based—it goes to the state and community where the consumer is located. Massachusetts consumers DO use the firefighters, DO use the sewers, and DO expect their local municipality to plow their streets.

We realize that an op-ed piece is the opinion of the writer. However, we feel this particular op-ed overlooks the fundamentals of the debate. This debate is not about whether you should be taxed, why you should be taxed, or at what rate you should be taxed; that debate takes place at every election when you choose your local representatives and weigh in on various ballot initiatives. The question is:  What is the most efficient way to collect sales tax?

The Streamlined Sales and Use Tax Agreement, which began in 2000, is the result of the cooperative efforts of 44 states and the business community to simplify common definitions, standardize sales tax data, and standardize reporting procedures. The federal legislation that is being proposed by Senator Durbin would enable states that have already revised their sales tax laws to comply with Streamlined to require remote retailers to collect sales tax. Twenty-four states have already made the necessary revisions to theirs sales tax laws and more are considering doing so (including Massachusetts). It is better that Congress address this issue so that all businesses collect the correct tax. Until then, more and more states are going to be attempting on their own to collect these taxes, which will increase complexity.

Storefront Backtalk asks: “Where are the consumer advocates?”

April 11, 2011

This post in the StorefrontBacktalk blog ponders why there have been no consumer advocacy groups fighting against affiliate nexus laws. The answer, though, is contained in the post:

Rightly or wrongly (OK, it’s wrongly), consumers in those states have been avoiding paying state sales tax.

It would seem to me that a consumer advocacy group would be hard-pressed to make a pitch that says, in effect, “don’t take away a citizen’s right to evade taxes.”

Instead, the debate continues to focus on the issue of fairness—whether it is fair that only bricks-and-mortar retailers collect the tax, and whether it is fair to ask online retailers to calculate and collect the tax.

Today large online retailers easily manage millions of items for sale at any given moment, and even the smallest online retailer can calculate accurate shipping rates to every corner of the country in a blink of an eye. It is no longer too difficult to keep track of a few thousand tax jurisdictions.

What’s more, comprehensive sales tax management services are available—for free—making it even easier to calculate sales tax online. TaxCloud calculates the sales tax due for any purchase anywhere in the country. It is certified to comply with the Streamlined Sales and Use Tax Agreement (SSUTA) and can therefore also prepare, file, and remit sales tax for states that are members of SSUTA. The service is completely free to retailers.

Perhaps another reason consumer groups are shying away from the debate is because it is local community services that are losing out on uncollected sales tax as more shopping shifts online.

What does surprise me, though, is that the Performance Marketing Association and other groups that support the affiliates have not been coming out in favor of Streamlined and federal legislation that would require ALL online retailers, not just those who sell through affiliates, to collect and remit sales tax.


Chicago Tribune calls for federal legislation

March 24, 2011
Chicago Tribune

Chicago Tribune

The Chicago Tribune published a scathing editorial yesterday that urges Congress to address the issue of uncollected sales tax on remote sales. According to the editorial, “The time has come for Congress to back up states like Illinois as they stand against a corporate bully. Amazon is putting its interests above the common good—a situation we hope Durbin & Co. will rectify.”

The strongly worded editorial refers to the current situation of uncollected/unpaid taxes on remote sales as “widespread abuse.” It says that federal legislation is needed “not only because of basic fairness but also because of the shameful efforts of Web merchants to retain their arbitrary advantage.” It calls out Amazon specifically as having “treated its local affiliates as pawns, severing ties with them to evade its tax-collection obligations” and as having “strong-armed other states, threatening to shut down facilities in Texas unless Longhorn lawmakers cave in to its tax demands. Amazon has tried to make an expansion project in South Carolina contingent on relief from collecting sales tax.”

Will the surge of editorials continue now that the Chicago Tribune has joined the Los Angeles Times, the New York Times, the Sacramento Bee, and the Minneapolis Star Tribune in calling for federal legislation to resolve the issue fairly and efficiently?

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Minneapolis Star Tribune editorial: “Make online sellers collect sales tax”

March 24, 2011
StarTribune

StarTribune

Another newspaper’s editorial board has come out in favor of requiring all retailers to collect the sales tax due on purchases. The editors acknowledge that affiliate nexus laws don’t solve the problem entirely, but they suggest that Minnesota pursue that avenue in advance of federal legislation: “Minnesota shouldn’t wait for Congress—not when it can gain an estimated $10.6 million more in revenue in the coming biennium without raising taxes. (Tax-averse legislators should note: The retailers’ proposal does not raise taxes. It simply collects an existing tax.)”


Maine Introduces Streamlining Legislation

March 23, 2011

The Maine legislature has introduced a bill, HP 344, LD 451, to study the adoption of the Streamlined Sales and Use Tax Agreement.  Currently, 24 states have adopted SSUTA, and Missouri is considering doing so also.  As always, we will keep you updated on this blog.


“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.