Most of us spent our entire professional lives in a world dominated by Quill and the physical presence test. The remote sales debate was all encumbering. Maybe that world is coming to an end. Amazon.com has announced that it is collecting sales tax in every state. For the sales tax purists out there, this is very good news. The sales tax should be paid on all final consumption. But we know that if the vendor is not collecting, the customer is not paying. The significance of Amazon collecting everywhere it sells should not be lost on anyone. Amazon is and will continue to be the largest internet retailer in the world. According to CNBC, it accounts for 43 percent of all online revenue. Significantly, it accounted for 53 percent of all online revenue growth.
When it comes to remote sales tax collection, it's all about Amazon. If the industry statistics are correct, Amazon will be collecting tax on nearly half of all remote sales in the next few years. Perhaps the states should declare victory and go home. Think about this: the next largest U.S. based e-retailers are Apple, Walmart, Macy's, Home Depot, and Best Buy. They accounted for about $50 billion in Internet sales in 2015. I suspect, but do not know, that those companies are probably collecting a lot of sales tax as they have a physical presence just about everywhere.
To be sure, there are a lot of other e-retailers out there. There are many large companies overseas that sell into the U.S. But the states will have a difficult time going after them. There are thousands of small companies selling online. But the state revenue departments, no matter how diligent, will not be able to hunt them down. There is no money there. There will continue to be issues presented by eBay and smaller online "marketplaces." And there are a handful of decent-sized companies that will fight to preserve the physical presence standard.
But a lot of the collectable sales tax from online purchases is being collected. I talked with a state legislator from a state considering an economic nexus law similar to South Dakota's. He told me that his revenue department thinks they were collecting tax on as much as 85 percent of online sales. What does this mean? It may mean that it does not matter-from a revenue standpoint-if Quill is overturned. I think as a matter of policy and law, Quill should be overturned. It makes no sense in 2017. I do not think that Internet sellers will be burdened by tax collection responsibilities. But I am starting to think about how much it really matters.
Pass the Mobile Workforce Act. Congress is considering whether to pass the Mobile Workforce State Income Tax Simplification Act of 2017 (H.R. 1393). The bill would prevent states from imposing income taxes on people who are not in the state for at least 30 days. I am always leery of federal preemption of state taxing authority. The federal government should limit state taxing power only on rare occasions. But this is one of those occasions were federal intervention is warranted.
States have a lot of discretion over taxing individuals who enter their jurisdiction. If you went to New York for a conference for a day, the state could tax 1/365th of your income. You would be on the hook for filing a return in New York. Your employer would be on the hook for withholding in the state. Most people do not know that. Most businesses do not know that. The state laws and regulations concerning taxing visiting employees vary widely. The enforcement of those rules varies even more. Most people who travel for business do not give this much thought.
Congress should pass this bill to bring uniformity and certainty to business travelers and their employers. Complying with the myriad laws on when to file returns and withhold creates a serious burden on business. There are many businesses that send employees to other states all the time. Keeping track of who may have been in Massachusetts for a day or North Carolina for two days, determining the withholding, and filing the returns is an administrative nightmare.
The Mobile Workforce law will provide certainty to employees and business. If you send someone to another state for 30 days or more, that state has taxing jurisdiction. While opponents claim that the law will cost the states money, I am not sure that is true. Currently, the rules are so complex that I suspect compliance is minimal. A bright line 30 day rule might actually get more business and employees to pay taxes. The bill has made it through the House Judiciary Committee. This is one preemption law that should be passed.
A Better Incentive? As folks may know, I think tax incentives are terrible policy; they violate all principles. But I am resigned to the near universal disregard of my fervent opposition to incentives. So now I cheer on those who would at least make incentive programs more transparent, more accountable, and more equitable. There is a proposal in Illinois that its sponsors say would do just that.
A bill (SB 2071) would replace the notorious Economic Development for a Growing Economy (EDGE) incentive program. The EDGE, which epitomizes all that is wrong with incentives, is going to expire at the end of April. Personally, I think the powers that be in Illinois should let EDGE die. But, political leaders cannot seem to run their government without incentives. So they introduced SB 2017 which would create the Transforming, Helping, and Reviving Illinois' Versatile Economy Job Creation Tax Credit Act. Proponents are calling it THRIVE. It would require recipients to invest $2.5 million in Illinois. There are some big difference between THRIVE and EDGE. The former provides a 50 percent credit and the latter a 100 percent credit. Under THRIVE, companies would no longer have to prove they are trying to get incentives from other states. But they would still have to convince the Department of Commerce and Economic Development that they would not invest in Illinois "but for" the incentives. THRIVE also requires less job creation-a provision aimed at making more small businesses eligible. Most interesting, THRIVE's credits are transferable; EDGE credits are not. Transferable credits are like giving cash to corporations. And once companies start getting transferable credits they will lobby to keep those credits for eternity.
Is THRIVE better than EDGE? From a policy perspective there is not a lot of difference. The government is still picking winners and losers. The state is still doling out money despite enormous budget shortfalls.
Wackiness in California. California is home to the worst tax policy ideas in the nation. Okay that might be a little hyperbolic. But let's review some proposals. There is a proposal (SB 567) to end the water's edge election and require all corporations filed to file on a worldwide combined basis. Nothing says to foreign investors "please don't come to our state" like mandatory worldwide reporting. At a time when the world is shifting away from taxing mobile capital, California is trying to tax all mobile capital. Worldwide reporting also 1) greatly increases the cost of compliance; 2) forces companies to do even more aggressive planning; and 3) ticks off American trading partners. What's there not to like?
The same proposal would prevent companies from deducting salaries of more than $1 million. Why? I think the politicians in California are saying that it is unnecessary for a business to pay anyone that much-as if they would know. Of course, maybe proponents are just trying to address income inequality. And they will. When businesses and millionaires leave the state, things will be much more equitable.
There is a proposal (AB 1356) to impose a one percent tax, on top of the other 13.3 percent, on all income over $1 million. The money would be used to provide "free" community college and public university tuition to residents of the state. Luckily, such measures need a 2/3 majority vote to pass. Because if it did pass, you can be assured of two things. More kids will be going to college and there will be fewer millionaires to pay for all that free tuition.
Perhaps the worst idea from a policy perspective is SB 807 which would exempt all public school teachers' income from tax for five years. Never a more asinine policy position has been proposed. Look, we all love teachers. My daughter is a teacher. All of my favorite teachers were, well, teachers. But don't we love police officers, firefighters, veterans, social workers, tax lawyers? Exempting a particular group from tax is about as extreme as you can get from a policy standpoint.
Rich Folks Benefit. My friends at the Tax Foundation recently released a report that found six states receive more than half of the value of the federal deduction for state and local taxes. In case you are math challenged-44 states receive less than half the value. This is important because the federal tax reform plan presented by the House Republican leadership calls for the elimination of the deduction. And President Trump's proposal- which is unofficial-calls for capping the deduction.
Remember how this works. You can deduct your state and local income and property taxes if you itemize. Only 25 percent of people itemize and they tend to be richer than everyone else. Indeed, the Tax Foundation found that 88 percent of the deductions go to people earning more than $100,000. For those people, the federal government is essentially paying some of their state and local taxes. This of course puts pressure on state and local governments to tax more. Itemizing citizens only have to pay about 60 percent of every state and local tax dollar.
So who which are the states? California, Illinois, New Jersey, New York, Pennsylvania, and Texas. So the deduction benefits rich people in 6 states. Politicians in those and other states will howl. They will predict calamity and mayhem if the rich in Palo Alto or Manhattan or Chicago can't deduct their property and income taxes. I suspect the rest of the country will shrug.
Immigrants Pay Taxes. Whatever your views on the immigration debate, we should recognize one important fact. Undocumented immigrants pay taxes-a lot of taxes. According to a new report by the Institute on Taxation and Economic Policy, undocumented immigrants paid about $11.74 billion a year in state and local taxes. This includes more than $7 billion in sales and excise taxes, $3.6 billion in property taxes, and $1.1 billion in personal income taxes.
Trivia. The answer to the last column's question was Alaska. Alaska and Minnesota are the only states with no private letter rulings. This week's question is which state is generally credited with imposing the first corporate income tax. First person to email me the answer will receive a copy of State Tax Policy, just in time for beach season.
This article was originally published in Thompson Reuters Tax & Accounting Blog April 12, 2017