[Senate Hearing 116-287]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 116-287

                   REMOTE ONLINE SALES TAX: EXAMINING
                 THE IMPACT ON SMALL BUSINESSES OF THE
                      SUPREME COURT'S DECISION IN
                        SOUTH DAKOTA V. WAYFAIR

=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON SMALL BUSINESS
                          AND ENTREPRENEURSHIP
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            AUGUST 28, 2019

                               __________

      Printed for the use of the Committee on Small Business and 
                            Entrepreneurship
                            
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                            


        Available via the World Wide Web: http://www.govinfo.gov
        
                                __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
39-545 PDF                  WASHINGTON : 2021                     
          
--------------------------------------------------------------------------------------        
        
        
        
            COMMITTEE ON SMALL BUSINESS AND ENTREPRENEURSHIP

                     ONE HUNDRED SIXTEENTH CONGRESS

                              ----------                              
                     MARCO RUBIO, Florida, Chairman
              BENJAMIN L. CARDIN, Maryland, Ranking Member
JAMES E. RISCH, Idaho                MARIA CANTWELL, Washington
RAND PAUL, Kentucky                  JEANNE SHAHEEN, New Hampshire
TIM SCOTT, South Carolina            EDWARD J. MARKEY, Massachusetts
JONI ERNST, Iowa                     CORY A. BOOKER, New Jersey
JAMES M. INHOFE, Oklahoma            CHRISTOPHER A. COONS, Delaware
TODD YOUNG, Indiana                  MAZIE K. HIRONO, Hawaii
JOHN KENNEDY, Louisiana              TAMMY DUCKWORTH, Illinois
MITT ROMNEY, Utah                    JACKY ROSEN, Nevada
JOSH HAWLEY, Missouri
             Michael A. Needham, Republican Staff Director
                 Sean Moore, Democratic Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                           Opening Statements

                                                                   Page

Shaheen, Hon. Jeanne, a U.S. Senator from New Hampshire..........     1
Hassan, Hon. Maggie, a U.S. Senator from New Hampshire...........     3

                               Witnesses

Moore, Mr. Dwight, CEO, Tradeport, Acton, MA.....................     4
Byers, Ms. Ailie, President, Alpenglow Benefit Auctions, North 
  Conway, NH.....................................................    10
Hennessey, Mr. John, President, Littleton Coin Company, 
  Littleton, NH..................................................    20
Badger, Mr. Scott, Co-Founder, Lupine Pet Center, Center Conway, 
  NH.............................................................    24

                          Alphabetical Listing

Badger, Mr. Scott
    Testimony....................................................    24
    Prepared statement...........................................    26
Byers, Ms. Ailie
    Testimony....................................................    10
    Prepared statement...........................................    12
Hassan, Hon. Maggie
    Opening statement............................................     3
Hennessey, Mr. John
    Testimony....................................................    20
    Prepared statement...........................................    22
Moore, Mr. Dwight
    Testimony....................................................     4
    Prepared statement...........................................     7
Shaheen, Hon. Jeanne
    Opening statement............................................     1

 
 REMOTE ONLINE SALES TAX: EXAMINING THE IMPACT ON SMALL BUSINESSES OF 
        THE SUPREME COURT'S DECISION IN SOUTH DAKOTA  V. WAYFAIR

                              ----------                              


                       WEDNESDAY, AUGUST 28, 2019

                      United States Senate,
                        Committee on Small Business
                                      and Entrepreneurship,
                                                       Concord, NH.
    The Committee met, pursuant to notice, at 2:30 p.m., 
Grappone Conference Center, Concord, NH, Hon. Jeanne Shaheen, 
presiding.
    Present: Senators Shaheen and Hassan.

 OPENING STATEMENT OF HON. JEANNE SHAHEEN, A U.S. SENATOR FROM 
                         NEW HAMPSHIRE

    Senator Shaheen. Good afternoon, everyone. I would like to 
officially open this field hearing of the Senate Committee on 
Small Business and Entrepreneurship. I am Jeanne Shaheen, 
Senior Senator from New Hampshire and I am pleased to be joined 
by Maggie Hassan, who is New Hampshire's other Senator. I won't 
call you the Junior Senator.
    Senator Hassan. That is okay, I will take it. It's good.
    [Laughter.]
    Senator Shaheen. I wanted to start by explaining what we 
think will happen today as part of this official Small Business 
field hearing. This is an official hearing of the Small 
Business and Entrepreneurship Committee. It is open to the 
press and the public, and it will operate very much in the same 
way that a hearing in Washington would operate, expect that 
there will only be two of us here for this hearing. All 
testimony and responses to questions will become part of the 
Congressional record. And after my opening remarks, I will turn 
it over to Senator Hassan for her opening remarks. And just as 
in other committee hearings in Washington, although Senator 
Hassan is not on the Small Business Committee, we often sit in 
on other committee hearings and she will be doing that because 
this is an issue that she has worked on as well as I have.
    After the opening, our witnesses, representing the small 
business community, will offer oral testimony in a five-minute 
speech. After their testimony concludes, I will begin with my 
questions. And while we do not have the usual yellow, red, and 
green buttons that they have in Washington to try and limit 
people to five minutes, we will try and keep our responses 
within five minutes. After I do an initial round of questions, 
I will turn it over to Senator Hassan, and she will do an 
initial round, and we will go back and forth until we have 
exhausted all of the questions.
    Again, like hearings in Washington, there will not be an 
opportunity for the public to ask questions. But if you have 
comments or questions that you would like to raise, you will be 
able to submit written testimony, and they will then go to any 
of our witnesses and they will respond to your questions in 
writing. I want to begin by thanking Jake Wenthouse, who is the 
counsel for the Majority on the Small Business committee. He 
works for Senator Rubio. Jake, where did you go? There is Jake. 
This is his first visit to New Hampshire. I told him that we 
made sure the weather was very nice for him. And also, with him 
is Ron Surhoff, who is from the staff of Ranking Member Cardin, 
who represents the Minority on the committee. So, thank you 
both for being here.
    Before I turn it over to Senator Hassan, I want to explain 
briefly how we got where we are today in terms of this decision 
by the Supreme Court on Wayfair and the internet sales tax. 
Beginning in 1992, the Supreme Court had held that States could 
not force sellers to collect sales tax if they don't have a 
physical presence in their State. South Dakota, the State of 
South Dakota, challenged this rule. They argued that it was out 
of date due to advances in software and because e-commerce was 
resulting in more lost revenue to States. Wayfair and other 
online retailers argued, correctly I believe, that the burden 
of remote sales tax collection would be significant for small 
businesses.
    Online retailers were not the only one sounding the alarm 
about the potential burden. In fact, a Government 
Accountability Office report that I along with Senator Wyden 
from Oregon requested in 2017 highlighted the number of burdens 
that small businesses would face if the internet sales tax went 
into place. That included software costs, ongoing 
administrative costs, complexity of thousands of different tax 
jurisdictions, and the risk of out-of-State audits. Despite 
these warning signs, the Supreme Court overturned a decade of 
its own precedent in deciding South Dakota v. Wayfair. That has 
ushered in a new era of significant compliance costs and 
tremendous confusion for many small businesses, particularly in 
States like New Hampshire where we do not have a sales tax and 
we have not had a real infrastructure for dealing with a sales 
tax burden.
    Now since Wayfair was decided, many of the very risks that 
were warned against have materialized. Thirty-seven States and 
the District of Columbia now require remote sales tax 
collection, according to the National Conference of State 
Legislatures. And while some of these requirements are similar, 
others vary dramatically from State to State, with different 
implementation dates, the minimum Safe Harbor thresholds, and 
definitions of products and services that are subject to 
taxation, all of which increase the costs, the complication, 
and the confusion for small businesses. And so far, the 
argument that States are losing significant revenue to online 
sales really has not materialized.
    An analysis of official State revenue estimates by the 
National Taxpayers Union found that since Wayfair, just two 
States have collected more than the General Accounting Office 
had estimated, and the total amount among all 32 States 
surveyed represents an average of just 0.7 percent of general 
fined revenue, so much less than States claimed they were 
losing. So, the question is where do we go from here? New 
Hampshire has taken some steps at the State level to try and 
protect the State's small businesses. And I think these are 
admirable efforts, but I think as we will hear from our 
witnesses today, small businesses are already taking steps to 
comply, and our State's efforts alone do not seem to be what it 
will take to solve this problem. There are a number of pieces 
of legislation at the Federal level to address the online sales 
tax, one that would totally repeal and change the Wayfair 
decision.
    I have introduced legislation that would ban retroactive 
taxation and would exempt small businesses with less than $10 
million in sales from out-of-State sales taxes. I am hopeful 
that some of these pieces of legislation might be taken up and 
actually considered. So, at this point, I look forward to 
hearing the testimony of our witnesses and let me turn it over 
to Senator Hassan for her opening thoughts, and then I will 
introduce the witnesses. Senator Hassan, thank you for being 
here.

   STATEMENT OF HON. MAGGIE HASSAN, A U.S. SENATOR FROM NEW 
                           HAMPSHIRE

    Senator Hassan. Well, thank you, Senator Shaheen, for 
holding this important hearing and for including me in it as 
this is a vital issue for businesses and people of New 
Hampshire. It is vital that we come together in New Hampshire 
to raise awareness about the Supreme Court's backward Wayfair 
decision because of the major burdens it imposes on small 
businesses. I would also like to thank the four witnesses who 
are here to testify today. By sharing your experiences, you are 
helping highlight the significant costs of the loan sales tax 
collection for businesses all across New Hampshire, from Dover, 
to Littleton, to Conway. I look forward to hearing from the 
panel and to our discussion.
    Before turning back to Senator Shaheen, I would like to 
highlight two important points. First, it is essential that 
Congress move as quickly as possible to protect small 
businesses from the burdens and costs and heaps of red tape 
imposed by out-of-State Governments following the Wayfair 
decision. That is why along with Senator Shaheen, I helped 
introduce the Online Sales Simplicity and Small Business Relief 
Act, which would protect small businesses from owners 
compliance burdens, ban unfair retroactive taxes, and delay tax 
collection requirements. Congress should pass our common sense 
bill immediately, and I applaud Senator Shaheen for her 
continued leadership on this issue.
    Second, hearings like the one we are having today are 
crucial for raising awareness about the massive costs and 
complexities of remote sales tax collection, which mostly hurt 
small businesses that are the backbone of our economy. That is 
why, as a member of the Senate's Finance Committee, which has 
jurisdiction over tax law, I am pushing forward the Finance 
Committee to convene hearings in Washington examining the tax 
of the Wayfair decision.
    This decision is not only unfair to businesses who are 
forced to collect sales taxes for other States, it is unfair to 
all small businesses across the country that are navigating the 
thousands of tax and jurisdictions which will now force them 
into the burdens and role of tax collectors. I am going to 
continue working with Senator Shaheen to find a bipartisan path 
forward, as well as pushing my colleagues on the Finance 
committee and in the Senate to provide relief from remote sales 
tax collection.
    So, I look forward to working with everyone to make this 
happen. And again, thank you for holding this hearing. Senator 
Shaheen, back to you.
    Senator Shaheen. Thank you. And thank you all very much, 
all of the witnesses who are here today, for taking time to 
come and share with us what you are experiencing as the result 
of the Wayfair decision. I am going to introduce each of our 
witnesses. First is Dwight Moore who is the CEO of Tradeport 
USA and employs 30 people at its headquarters in Dover, New 
Hampshire. And Tradeport is a small business center, Dwight 
will tell us more about it, but it really resells products 
returned by customers that would otherwise go to the landfill. 
Ailie Byers is President of three companies based in North 
Conway, including Centennial Auctions. She is also on the Board 
of Directors of the National Auctioneers Association, so she 
has a national perspective to share with us today.
    John Hennessey is President of Littleton Coin, which 
employs nearly 300 people in Littleton, and sells coins and 
other collectible items online and by catalog. Thank you for 
being here. And Scott Badger is VP of Sales and Co-Founder of 
Lupine Pet based in Center Conway, which currently employs 65 
people and manufactures and sells pet accessories. Thank you 
all for being here. Before we hear testimony from our 
witnesses, let me just recognize some of the Representatives in 
the audience.
    We have Representatives from New Hampshire's Chambers of 
Commerce, including the Greater Salem Chamber, Souhegan Valley, 
and the Greater Derry Londonderry Chamber. So, thank you all 
very much for being here, and I want to also recognize Liz Gray 
from the Small Business Development Centers and Greta 
Johannson, who was the Director of the New Hampshire Small 
Business Office, SBA office here. Thank you both for being here 
as well.
    And, finally, let me recognize the efforts, although I do 
not think any of them have joined us, but we may have some 
legislators joining us later who have been at the forefront of 
trying to address this issue at the State level. With that, let 
me conclude and turn the testimony over to our witnesses.
    Mr. Moore, I am going to ask you to begin.

      STATEMENT OF DWIGHT MOORE, CEO, TRADEPORT, ACTON, MA

    Mr. Moore. Thank you so much, Senator Shaheen and Senator 
Hassan. I appreciate the opportunity to be here today. Again, 
my name is Dwight Moore. I am CEO and Partner of a company 
named Tradeport USA. We recently relocated from Somersworth, 
New Hampshire, to Dover, and the reason that we relocated is 
because our services are much in need and we are growing as a 
small business. But we are a small business, and among other 
things we do sell products that are returned by consumers. The 
majority of our sales are through online channels such as 
Amazon, eBay, Newegg, Walmart, and others. And we primarily 
sell to consumers in the U.S.
    Repurposing returned products that have historically ended 
up in landfills is both economically and environmentally 
responsible. Tradeport was founded in 2001. We currently 
provide over 30 jobs today, and with our growth we anticipate 
we are going to be adding many more new jobs in Dover. This 
testimony is very timely for me personally because just two 
weeks ago, I met with my CFO--the reason is so timely for me is 
because just two weeks ago my CFO and I sat down for an entire 
day and tried to understand the new tax requirements that 
resulted from the Wayfair case. You know, granted, we are a 
little bit behind the curve here, but we knew we had to get 
going so we spent the day doing that. Our goal was simple.
    We set out to understand the requirements first, then we 
wanted to lay out a plan that would bring us into compliance if 
we met the individual State threshold levels. Granted, we are 
just starting. So far, my experience and feedback is that 
things are very convoluted and cumbersome. In order to gain an 
understanding of the requirements, we performed a thorough web 
search to find resources that describe the State-by-State 
requirements. What we found was that in addition to the State 
requirements, we would also have to navigate many local 
jurisdictions.
    Once we felt that we had our arm somewhat around the 
overall tax requirements, we then created our own sales tax 
requirements document that describes the compliance rules to 
the best of our ability. As I sit here today, I am not 100 
percent confident that we have got it completely right. We then 
created a computer program, internally into our computer, into 
our company, and using our computer systems, we generated some 
sales reports from 2018 to 2019. And we tried to determine what 
our sales were on a State-by-State basis.
    So, our thinking was that by comparing the requirements to 
our sales reports, you would have a basic understanding of 
where we have to, or where we have a State obligation. And what 
we found was that there are about 12 States that we believe we 
have an obligation. We still have not quite figured out the 
local jurisdiction piece yet, and we are going to be continuing 
to work on that. As I testified earlier, we mainly sell online 
using these large channels such as Amazon, eBay, Newegg, and 
others. We then researched what, if any, support the channels 
provide to help small companies and sellers like us comply with 
the tax requirements. What we discovered so far is that they 
all do it a little bit differently. This really complicates the 
task of collecting sales tax, registering in the States, and 
file. We are hopeful that the sales channels would provide some 
support and relief from our administrative burdens associated 
with sales tax compliance rules.
    Although our research is still very much a process, please 
let me describe briefly what we found out while researching 
channels. Amazon has a software tool that will calculate the 
sales tax for the States and local jurisdictions for the States 
that we tell them that we think we comply or that we meet the 
thresholds for. Of course, Amazon charges a fee for that. It is 
2.9 percent on the sales tax liability. Amazon will collect the 
sales tax and provide us a report. Once we receive the report, 
then we are responsible for registering and filing in each 
State and local jurisdiction. eBay takes a slightly different 
approach. They have a free software program that will collect, 
register, and file in States on our behalf in 21 States. It 
seems like we are on our own for the remaining States and we 
have go to figure that all out.
    Newegg is still like eBay in that they would collect, 
register, and file for us but they only do that for 19 States. 
Like eBay, Newegg's tool is free, but again, we are on our own 
to comply with the States that Newegg does not address. As a 
result, we at Tradeport have come to the conclusion that we 
cannot do this ourselves. We are going to need some help. So, 
we are in the process of obtaining quotes from third-party 
companies that claim to have built integrations with the online 
channels and that will help facilitate the sales tax compliance 
requirements.
    The purpose of my testimony today is to share with you the 
experience that we have had and the frustration of the process. 
We want to be in compliance, but as you can see from my 
testimony, it will be both administratively and costly 
burdensome. For a company like Tradeport with under $10 million 
in sales, this is a significant drain on our resources. From a 
personal standpoint.
    I believe new laws that exempt small businesses would be a 
huge help in maintaining a vibrant community of smaller and 
online sellers that do not have all the necessary resources to 
navigate the complex rules.
    [The prepared statement of Mr. Moore follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]	
    
    Senator Shaheen. Thank you very much.
    Ms. Byers.

    STATEMENT OF AILIE BYERS, PRESIDENT, ALPENGLOW BENEFIT 
                   AUCTIONS, NORTH CONWAY, NH

    Ms. Byers. Senator Shaheen, thank you for inviting me to 
testify today on the impact of the Wayfair decision here. 
Senator Hassan, thank you for being here as well. My name is 
Ailie Byers and I am the President of Alpenglow Benefits and 
CFO of Scofield and Centennial Auctions. I also have a master's 
degree in public administration. My family company was founded 
40 years ago. We now service clients all over the United States 
and we are based primarily in New Hampshire.
    In 2018, I was elected to the National Auctioneers 
Association Board of Directors, and in that capacity, I engaged 
in weekly calls about the Wayfair decision and its impact on 
our profession. The NAA has just under 4,000 members and 
represents around 2,000 companies. Over 67 percent of our 
members work with companies that have 4 or less full-time 
employees, and about 92 percent have over 20 employees. Auction 
professionals collectively facilitate commerce in America on a 
massive scale, selling billions of dollars of assets each year.
    Auctioneers have built their business models on a physical 
presence rule pre-Wayfair. We now face an overwhelming tax 
environment charged with financial burdens and legal 
uncertainty. While large retailers may be able to meet the 
burden of complying with multiple State and local taxing 
systems, many auction companies do not have the resources to 
absorb the costs of such compliance. Each auction is unique 
unto itself in terms of the items we are selling, the number of 
items we auction, the makeup of the buyers, as well as location 
of the sale. We have learned that all of our options, be they 
live, online, or simulcast, are all affected by this decision.
    A significant difference for our industry versus retails at 
large is that auction companies do not typically own the goods 
we sell in auction. Instead, we are acting as agents of the 
sellers, and an overwhelming majority of assets we sell are 
non-consumables, so we do not have repeat buyers. We sell a 
broad range of products, from pots and pans to large commercial 
machinery. Auctions are open to the public so anyone from 
anywhere can show up and register to bid at an auction. Since 
the Wayfair decision, depending on definitions, about 42 States 
have enacted legislation similar to South Dakota.
    One of the hardest problems with compliance is the lack of 
standardization, both the thresholds each State has established 
as passible is not standardized. With customers across the 
country, these new tax laws mean auction professionals face the 
overwhelming task of determining the correct taxing authority 
and the tax rate for each customer, as well as the proper 
classification of each item in nearly 10,000 jurisdictions in 
the United States. There is no national clearinghouse for this 
information. Not only are States unaware of all the 
jurisdiction exemptions within their State, there are also 
State situations like Home Rule in Alaska, where the State 
itself does not collect sales tax; however, municipalities 
within inside the State do. These thresholds include economic, 
marketplace, click through, and affiliate nexuses. They are all 
unique, and with at least one State, Kansas, having a threshold 
that is only one dollar for one transaction.
    During the arguments of the case, ease of compliance 
proffered. However, while basic versions of tax software may be 
available for low monthly fees, substantial fees apply for 
premium services. Additionally, the cost and staff time of 
integrating software into existing systems, which can be 
particularly challenging as all the items and prices vary 
significantly from auction to auction with minimal overlap, 
this even before any tax liability is factored in.
    Lastly, the most troublesome is the retroactive tax 
liability for prior sales that is now allowed in some places. 
How one is supposed to go back to prior year buyers and collect 
sales tax for those items is an interesting intellectual 
exercise, but it is practically impossible. The argument for 
the collection of sales taxes by remote sellers is usually 
characterized as a means of fairness between small main street 
shops and massive online companies. However, the financial, 
logistical, and staffing requirements necessary to comply with 
the myriad of taxing jurisdictions does just the opposite. Main 
Street shops are the ones that cannot afford to meet these 
requirements. If anything, an undo consequence of these 
regulations is forcing small companies out of business. In 
Kansas, there is a 50-year-old auction company that has four 
full-time employees.
    As of last month, they have crossed the threshold in three 
States. They forecast that in 18 months they will be out of 
business due to compliance issues and costs. At the Federal 
level, the Senate Bill 2350, sponsored by Senator Shaheen, as 
well as HR 1933 over in the House are bills designed to 
mitigate the impact of the Wayfair decision on small businesses 
as I have outlined. Finally, the number one misunderstanding of 
the South Dakota v. Wayfair ruling is interstate versus online 
commerce. It does not matter if you sell a product through e-
commerce in the internet or if an individual comes into your 
store and buys the product and pays for it on-site, the final 
destination of the items sold is determined as tax liability as 
we have been informed by multiple State taxing agencies. 
Therefore, it is not a matter of online merchants selling their 
wares across State lines. Any product crosses the State lines 
is classified as interstate commerce, and thus the seller is a 
remote seller.
    We in the auction world do not want to die a death by a 
thousand cuts. We facilitate an open, transparent, and 
competitive market where all have the ability to buy and sell. 
The Wayfair decision is an existential threat to us. I would 
like to thank you for the opportunity to testify today. I look 
forward to responding to your questions.
    [The prepared statement of Ms. Byers follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]	
    
    Senator Shaheen. Thank you very much, Ms. Byers.
    Mr. Hennessey.

STATEMENT OF JOHN HENNESSEY, PRESIDENT, LITTLETON COIN COMPANY, 
                         LITTLETON, NH

    Mr. Hennessey. Senator Shaheen, Senator Hassan, thank you 
for the opportunity to testify today. I am John Hennessey of 
Littleton Coin Company. We are a small business of 275 
employees located in Littleton, New Hampshire, which is our 
only physical business location. We have been in operation 
since 1945 when our founder Maynard Sundman started the 
business after returning from service in the U.S. Army during 
World War II.
    Our mission is to bring the joy of coin collecting to as 
many people as possible, and we serve coin collectors in all 50 
States primarily through the mail. As a New Hampshire company, 
we have never previously been subject to collect State and 
local sales taxes, nor have we needed to implement any 
administrative processes, software, computer systems, or in-
house expertise to do so. The June 2018 Supreme Court decision 
requiring us to become the tax collector for up to 12,000 State 
and local jurisdictions created an immediate and significant 
risk to our business. Most concerning, the decision provided no 
implementation period for us to become compliant, immediately 
exposing us to up to $100,000 of tax liability per month with 
no way to calculate and collect the taxes from our customers, 
leaving us liable to pay the bill ourselves.
    Our best-case scenario was to become compliant by January 
2019, which was no small feat. Now, meeting this timeline meant 
incurring significant costs to purchase software, hire outside 
tax and legal experts, hire outside software developers, devote 
our internal IT developers to changing our computer systems, 
and focus our entire employee base to redesign our 
administrative processes to understand, calculate, explain to 
customers, and collect sales tax in all States and up to 12,000 
total jurisdictions. To date, we have spent $275,000 to become 
compliant to the best of our interpretation under each State's 
laws by this January 2019 date.
    Unfortunately, that time and money spent would have 
otherwise been devoted to growing our business and maintaining 
and creating jobs in New Hampshire. Even more significant costs 
and risks to our business still exist going forward. The 
biggest risk and potential costs loom as States begin to 
attempt to collect retroactive taxes from us for periods prior 
to January 2019. They start their audits of our sales and use 
tax collection reporting, and even expand their reach to 
additional taxes such as income tax. We are already beginning 
to receive notices from the States, and every one of them 
requires time for my staff and often a consultation with our 
tax advisor and attorney, both at significant costs.
    Worse further will be one, two, or three years from now 
when each State begins sending us audit notices. We will be 
subject to 45 separate annual State audits, and we cannot 
estimate how many countless county and local audits as well. 
Each one will take a lot of time and effort to document and 
improve our compliance, and if there is a question as to 
whether we have interpreted the law correctly, we will pay 
significant legal costs to support our position. And if 
unsuccessful, we are forced to foot the bill ourselves despite 
our best efforts at understanding and complying with the laws.
    I will provide one brief example of why this is such a 
significant risk. There is the tax law on just one State for 
just one of the coins that we sell. If the coin is legal 
tender, it is not taxable. If it is not legal tender, then if 
its value is determined by fluctuations in the gold bullion 
market, it is not taxable. If its value is determined by its 
rarity, it is taxable. In fact, the value of this coin is 
determined by both and I must choose either one or the other. 
Further, if the coin is taxable, and a customer purchases three 
of them in separate transactions, they are taxable. If the 
customer purchases those same three coins in a single 
transaction, they are not taxable. However, if that customer 
returns one of the coins, the remaining two then become taxable 
again.
    I sell thousands of products and I must attempt to 
correctly apply the laws of 45 States and 12,000 jurisdictions 
to every one of them. The Supreme Court left the door open for 
Congress to act and we need Congress to level the playing 
field.
    One, we need a reasonable time period to have to become 
compliant and be protected from retroactive taxation. Two, one 
audit from one's home State, for example, will provide a 
reasonable administrative burden. And three, limit the reach to 
sales and use tax and not expose us to have to defend against 
overreach into income and other State taxes. This new State tax 
requirement is complex, distracting, and extremely costly. We 
are doing our best effort to comply; however, without 
reasonable simplification and protection, this will continue to 
hurt our business and divert resources that would otherwise be 
used to invest in our business and our employees.
    Thank you for the opportunity to testify today. Look 
forward to responding to any questions you have.
    [The prepared statement of Mr. Hennessey follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]	
    
    Senator Shaheen. Thank you very much.
    Mr. Badger.

   STATEMENT OF SCOTT BADGER, CO-FOUNDER, LUPINE PET, CENTER 
                           CONWAY, NH

    Mr. Badger. Thank you, Senator Shaheen and Senator Hassan 
for giving me this opportunity and thank you to the other 
members of the committee. My name is Scott Badger. Lupine's 
small business started in 1991 with 65 people. We do our own 
production here in New Hampshire and most of our sales are to 
retailers across the country. We also sell to consumers via our 
own website and through Amazon primarily. Since the Wayfair 
decision last year, we have spent literally hundreds of hours 
researching to put in place the systems necessary to continue 
our sales, both retail and wholesale and be tax compliant in 
other States. Beyond the time we have invested, and we will now 
continue to invest, financial costs will be in excess of 
$20,000 a year just for the annual software fees.
    Additionally, we will be paying the service company that we 
use for every filing at $50 per filing 4 to 12 times per year 
per State. In fact, in some States we will be paying more to 
file than taxes collected. In fact, that happened last month in 
two States. As problematic as the financial cost is, we found 
the software companies seem to be as unprepared as anyone for 
this Wayfair decision. After spending a couple months 
researching developers and providers, it then took us five 
months after signing on to one to get set up so that we could 
start collecting sales tax. It took so long partly because the 
company was swamped with new business prompted by the Wayfair 
decision, but also because the conflicting answers and 
information that we were getting from that company staff not 
just about sales tax but even as to how their own systems work 
because of the complexities of the landscape.
    We realized that, with the exponential rise in online 
shopping and most States' dependency on sales tax revenue, 
taxing online sales is probably inevitable. But the problem is 
that suddenly laws written for intrastate taxation are now 
being applied to interstate taxation, and the resulting 
compliance costs to any business are not only greatly out of 
scale for the taxes collected, but also sound prohibitively 
expensive for small businesses. So that online small business 
development is not significantly restricted, at least two 
things need to happen. First, requirement of interstate online 
taxation should be paused, as was mentioned, for a reasonable 
period while everyone, States, software companies, and 
businesses, or online sellers have a reasonable opportunity to 
prepare.
    Second, interstate taxation needs to be made far less 
complex and costly for online sellers to be compliant. There is 
already an initiative called the streamline sales tax, SST, 
where 24 States have joined, and it streamlines the rate 
structure, registration process, and financing, and also pushes 
the cost of collection services needed on to the States. It is 
only fair that States wanting to collect sales tax on online 
sales do so in a way, like with the SST program, that isn't an 
undue burden or cost to online businesses.
    In the end, online taxation should be simplified in ways 
that allow businesses to take care of without the necessity of 
costly software services, like it is for in-State regular 
businesses. Fifty dollars probably is not a reasonable amount 
for charges for a filing, but just as it seems crazy for us to 
pay $50 to remit $39 in one State last month, and so it doesn't 
make any sense for that State to pay $50 plus additional fees 
to get $39.
    There are two things that would allow businesses to handle 
the collection of remittance on their own, a single rate per 
State, not variable by county, burrow, district, side of the 
street, etc. And common registration--final forms. If online 
sales tax collection and remittance were simplified in these 
ways, not only would small businesses benefit by not having to 
incur the very burdensome costs, as have been described by 
everyone here, in time and money to be compliant, but the 
States could probably benefit as well by the increased 
participation in online tax collection.
    If though there is no change, online small business 
development would be significantly restricted not just by the 
cost itself, but also by the advantage the current scale of 
sales tax compliance gives large retailers. Now I have one 
particular story. We just started collecting sales tax in July. 
And so, we did our first filing a couple weeks ago. And once 
one State said thank you very much, what about June? And I get 
to the retroactive thing.
    And so, we paid $100 in sales tax, remitted $100 in sales 
tax, to the State in July. June would probably be about the 
same. Our provider kindly offered to do an expedited filing for 
$750.
    Thank you for this opportunity. I look forward to your 
questions.
    [The prepared statement of Mr. Badger follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]	
    
    Senator Shaheen. Thank you very much, Scott, and thank you 
all. You have certainly pointed out the challenges that this 
decision presents. I have to say there were numerous pieces of 
legislation in Congress to try and impose legislatively what 
the court has done, and unfortunately all of those were 
defeated.
    So, it is unfortunate that the court did not listen to some 
of those debates in Congress. I think most of you have referred 
to the challenges of compliance and the cost, but can I ask for 
the entire panel whether you have got a total up-front cost of 
compliance, whether you have broken that down by what you think 
it will be annually, and have you figured in the hours that are 
included as well, and do you have an overall estimate, each of 
you, on what this is going to mean for your business? I will 
ask you to go first.
    Mr. Moore. Sure. Since we started recently, I have done a 
back of the napkin calculation on that, and it looks like it is 
going to represent 1 or 2 percent of sales.
    Ms. Byers. For our personal coin business, coin auction, I 
have not calculated that out because I usually do not have any 
impressions since our sales rely on in-person sales happening 
in-State. We would not fall under this auspice. Right now, it 
is going to be most likely in the thousands of dollars but as 
an option, we do not know what we are selling or when we are 
selling it. That can change any given time because I can sell a 
coin for $100,000. And I will go from not being inside the 
threshold of any State to crossing the thresholds within a 
matter of seconds, and not knowing at that time.
    Senator Shaheen. And so, one of the things you pointed out 
is that you are acting on behalf of a seller. Is it your 
understanding that the seller also has to pay a tax on that 
item or how does that break down?
    Ms. Byers. No, the most guidance we have gotten from 
different revenue agencies in different States has been that 
since we are the agent just, we are the fiscal agent for the 
seller, that it is our responsibility because we are the ones 
actually producing the sale, so it would be under the auspices 
of our companies. But since we don't own the product, our 
margins are very small. So, a 2 percent mark, you know, percent 
of what our sales are on a margin where we are billing three or 
four, like that is why the company in Kansas has said, they hit 
one more State threshold, or they maintain the current 
thresholds and they cannot afford to maintain their position 
and shut down.
    Mr. Moore. If I could add to that, most of our business is 
also on consignment and I asked the experts what they could 
find on this and they said no, it is our obligation since we 
are selling the product.
    Senator Shaheen. And then you pass that along? I assume you 
will try and pass that along to a subgroup that you are 
representing because it will be difficult to absorb all of 
those costs once and so that will have an impact on the 
business going forward in that respect.
    Mr. Moore. Yes, it would really change the business model.
    Senator Shaheen. Yes. John, you were very good about 
pointing at what your compliance costs have been to date. Will 
that be an annual amount, or do you know?
    Mr. Hennessey. Yes, the initial cost was $275,000. The 
ongoing cost will be, or the known costs are friendlier 
software costs, which will run around $20,000 per year. It is 
the unknown costs that are most significant and anytime that we 
find out we have not programmed our software correctly or new 
States come online or new local jurisdictions, we will have to 
spend significant money to either use internal resources or 
hire outside expensive software consultants to come in and 
tweak the software for us. And we know that we have gotten some 
things wrong, we just do not know which things. So, it will 
continue to be very expensive as well as just simply filing 
costs. We pay $30 every time we file any monthly tax return.
    Senator Shaheen. And can I ask, what tax jurisdiction had--
in the anecdote that you gave us about the challenges?
    Mr. Hennessey. Yes. There are many very similar to that so 
I would not pinpoint it to any one State. I had a whole book 
full that I could have used, and I just chose that one.
    Senator Shaheen. I just thought that would be really 
helpful in terms of testimony on the floor of the Senate to 
talk about the challenges that small businesses are facing. It 
would be nice to go back to the Senators from that State to 
talk about why that is so challenging.
    Mr. Hennessey. Yes. I will be happy to share that with you.
    Senator Shaheen. Good. And Scott, you talk about some of 
the particulars that look at costs overall.
    Mr. Badger. Yes, like John from $20,000 a year just for the 
annual software fees. It is $20 for filing every time. Per 
year, per State it is $400. And then, perhaps naively, but I am 
hoping that once things settle out a bit at least, that we 
maybe look at only 10 to 20 hours a month in-house work.
    This is also not counting at all the retroactive liability 
that we incur for compliance at time. And then, quite frankly 
we cannot properly, completely be compliant. We are going to 
have to subsidize some of the taxes ourselves, particularly 
with Amazon because there just isn't a solution that overlaps 
with the SST program that allows us to pass through the taxes 
to Amazon collections in some States. So, we are going to have 
to subsidize some of the taxation ourselves.
    And a more general point is that through all of this, when 
we asked the software companies for help or advice, they 
purposely did not want to give us that kind of opinion. They 
pointed us to tax professionals. We asked the tax professionals 
and they said, well those software companies are the ones that 
really the ones doing it, you should talk to them. There really 
isn't anyone you can go to get all the answers.
    Senator Shaheen. Thank you.
    Senator Hassan.
    Senator Hassan. Thank you. And again, thank you to all four 
of you not only for being here but for very illuminating 
testimony. I have one question that I wanted to direct to Mr. 
Hennessey and Mr. Moore, and then another question to Ms. Byers 
and Mr. Badger. We will cover the four people that way and then 
get back to reassessing expenditure.
    So, Mr. Hennessey, I wanted to start with following up on 
the issue that I have heard from all of you about the 
inadequacy of software options here. It is clear from your 
testimony that even after having spent thousands of dollars on 
compliance software, significant risks and costs still remain 
for small businesses required to collect taxes for other 
States. You mentioned that you are already receiving sales tax 
collection notices from other States, which requires staff time 
and consultation with tax professionals, as Mr. Badgers points 
out.
    Can you tell us more about the staff time and monetary 
costs that you are incurring since these notices despite having 
compliance software? I think that there is this assumption that 
if you just get the software, right, it is going to take care 
of it. And do you expect the cost to rise in the future years? 
Just a little bit more following up on what Senator Shaheen 
just asked.
    Mr. Hennessey. Yes, Senator. The first offer that States 
made was recently and each of them was offering their own 
version of free software, and that would be far more expensive 
than the software I am purchasing because of the implementation 
complexities.
    So, we chose one of the Nation's leading software packages 
to calculate taxes for State and local use. And despite that, 
with our specific products, they have unique State laws to 
themselves and therefore this national tax software was not 
equipped to handle the nuances in each State for our products. 
Therefore, we had to hire experts to help us interpret each 
State law and then program this national software package to 
correctly calculate the tax to these places.
    And much like Scott was saying, we know that there are some 
things we just could not physically program correctly and we 
have been footing the bill for some of the tax ourselves 
because we could not properly charge our customers. So in 
addition to that, when we receive the notices of the audits, 
not only will we I am sure find things that they would 
interpret us to have done incorrectly.
    But it takes us a lot of time to gather the documentation 
and confirm with our experts who are charging us expert rates 
to give us advice to interpret these laws, which we have never 
had to interpret in the past. So very difficult for me to 
quantify a cost for those. I will be able to retrospectively 
and unfortunately, but staff time internally is significant as 
well, primarily when interacting with our customer base. They 
are learning these texts for the first time related to our 
product as well.
    Senator Hassan. Thank you. And Mr. Moore, I would like to 
go to a little bit of the same issue with you. I am really 
looking at whether there is adequate existing software options 
for relieving small businesses of the burden here that is the 
tax collection burden.
    In your testimony you discussed the support services 
offered by various online sales tools for collecting sales 
taxes. You make the important point that regardless of the help 
of these services, you are still ultimately responsible for 
accurately determining sales tax liability. It is another 
example of the unfair burden that Wayfair has placed squarely 
on the shoulders of small businesses.
    So, can you tell us how Tradeport is managing all of that 
uncertainty regarding whether you accurately determine the 
right amount of sales tax to collect in so many different 
jurisdictions?
    Mr. Moore. So that is a great question. And when we did our 
research on the channels to see what kind of support we were 
going to get, I will use Amazon as an example, they made it 
perfectly clear that even though they will provide all the 
reports, they are not going to guarantee the accuracy of laws 
and we are still ultimately responsible. They are there to--and 
you pay them to use it, right. So, we are still very early in 
the process.
    When I went out into my network and started interviewing 
some so-called experts, I was just so sticker shocked at some 
of the fees because of course the first thing that they have to 
come in and do is this whole assessment that was just a crazy 
endeavor. I am fortunate enough to have one of my partners who 
owns an accounting firm that specializes in small business tax. 
Unfortunately, he does not have many clients that are online 
sellers. So, he and his team have to spend hours and hours 
doing the research to come up with the requirements document 
that we spoke about.
    Senator Hassan. So, I am taking from your comments that it 
would be helpful if Congress could ensure that there was some 
leniency for small businesses who are being forced to act as 
tax collectors and doing their best in good faith but may not 
get everything right?
    Mr. Moore. Absolutely.
    Senator Hassan. I have a question for both Ms. Byers and 
Mr. Badger, and then turn back to Senator Shaheen. Ms. Byers, 
in your testimony you point out that one of the hardest 
problems with remote sales tax collection is the lack of 
standardization across State tax laws.
    States have different thresholds, we have heard that from 
all of you, for whether small businesses have to collect sales 
taxes as well as different standards for what is and is not 
taxable, and there is not even a national clearinghouse for all 
of this information.
    If States had to meet a Federally developed minimum 
threshold for accessibility or ease of filing in order to 
collect from out-of-State sellers, would that reduce some of 
the burdens imposed by Wayfair?
    Ms. Byers. If there was standardization across all the 
taxing jurisdictions, I think we would all agree with 
definitely reduce overhead costs both in terms of what the 
thresholds were to be crossed, and I think the other thing that 
would be really important is getting everyone on board with 
what is taxable was not. As Mr. Hennessey talked about, the 
coins are a moving target, and as they talked about in the 
case, you know, you get in situations in New Jersey where a 
skein of yarn you buy, if it is going to be used for craft, it 
is taxable, but if it is going to be used to make a sweater, it 
is not. It would not be that surprising to most people as 
someone selling it if I then ask you what you are going to use 
this for.
    Most people don't want to tell me what they are using it 
for because it is none of my business. So, trying to comply 
with a State saying well, you know, what is it being used for, 
I am not the one using it. I am the one who sold it. So, I 
think that is one of the problems with standardizations, not 
only getting just 45 States to agree on what the threshold is, 
but then all those 45 States all agree in like the Twix bars, 
is it a candy bar or is it piece of food.
    Those kinds of standardizations would be very helpful. It 
would not alleviate the problem, but it would make it a lot 
more manageable and reasonable.
    Senator Hassan. Thank you. And Mr. Badger, I will just 
follow up. You talked about the importance that streamlining 
would have if States had to meet a Federal development 
threshold for accessibility or ease of filing in order to 
collect from out-of-State sellers. Would that reduce some of 
the burdens that you are facing?
    Mr. Badger. Certainly. And from my part, we agree if we 
sell one product, then there is no question if it is taxed so I 
do not think I face some of the complexities that are described 
here. But, you know, as I said, really, I think what would make 
all this work a lot better is to not require these types of 
expensive services that are needed to be compliant.
    A single rate per State, and it could be a different rate 
for each State, but just one rate per State, and, you know, 
similar filing and registration forms. And then we can take 
care of it internally without the need for the services, and 
that would certainly reduce costs and probably be less time on 
our part than it will be using the services.
    Senator Hassan. Thank you very much.
    Senator Shaheen.
    Senator Shaheen. Thank you. One of the things that I think 
is admirable is the fact that each of you, as business owners, 
is spending the time and money to try and fly with this new 
position.
    I have heard anecdotally, however, that there are a number 
of small businesses that either do not know about the decision 
or are not sure that they really need to comply, and I just 
wondered if, without naming names, whether you have had any 
conversations with any of your business colleagues who have 
commented on compliance, and whether this is something that 
they need to do, and whether you have heard that this is 
something that businesses do not know about or they do not know 
how to comply and they are not sure they are going to? It is 
fair to say.
    Mr. Moore. I can make a comment. Again, in our business 
model, we have hundreds of customers that provide inventory to 
us, and consign it, and then sell them on their behalf. And 
there is a wide variety of types and sophistication, but 
anecdotally, some of them absolutely want to understand and we 
will do some of that research.
    Then there are others that just said, you know what, it is 
so complex, and rules seem to be changing so they are just 
going to wait.
    Ms. Byers. Yes, I would say that a majority of business 
owners in this group I talk to are unaware of it, and also 
because of the media constantly when they are referring to it 
refer to it as an internet sales tax. I know in talking with 
businesses in New Hampshire, since they do not sell on the 
internet, they assume it does not apply to them, so they are 
not going to worry about it. And then the ones that are aware 
of it, I would say a fair amount just put their head in the 
sand because it is impossible to comply with all of them, so we 
are not going to bother about any of them.
    Mr. Hennessey. Yes, I think what I have seen is that other 
companies that are in States that have sales tax have to be 
compliant for that State and can be a little further ahead of 
the curve because it is just familiar territory, but I have 
talked to a lot of businesses that are unaware or have said 
that they are going to wait for the State to come to them. It 
is probably not going to work out very well. Probably more so 
not really getting on it.
    Mr. Moore. From the few businesses I have talked to 
throughout the country, the other three businesses here are far 
ahead of the curve and still facing the complexities that they 
have described. There are many businesses that I agree simply 
are overwhelmed and do not know where to begin.
    Senator Shaheen. Well, Ms. Byers, you pointed out the 
auction house that anticipated they might be out of business if 
they had to continue to comply. Have any of you considered any 
decisions about the future of your businesses that will be 
affected by this decision, or have you talked to any other 
business owners who have seen this as an impediment to growing 
their businesses? You are nodding your head.
    Ms. Byers. For my personal company, last year my plan was 
to radically increase the amount of sales we did, use the 
internet to facilitate a lot more coin sales. And as soon as we 
kind of got wind of the Wayfair decision or that the Supreme 
Court was taking the case, knowing potentially what would 
happen, I just had to pump the brakes on it and then once the 
decision came down in June, I basically decided I am not 
touching that business model and using that to increase us at 
all because the compliance costs will override any benefit the 
company would make so the potential that I was seeing to 
potentially have some more employees and grow the business has 
just been pushed down and kind of pushed aside.
    And I know for other auction companies, they are modifying 
their business plans moving forward and either are not growing 
at the rate they were dissipating because they figured, as the 
other gentleman talked about, that their 10 percent they had 
kind of banked way to increase and put back into business, they 
are now using for compliance or really what they are doing, 
they are holding it aside for when that order comes and knocks 
on the door because they know it is going to be nasty, but they 
just do not know how nasty. So, we are not going to hire any 
person to kind of grow the side of it, we are just going to put 
that money aside and wait for the auditor.
    Senator Shaheen. That is a sad commentary. Anybody else 
have any----
    Mr. Badger. Yes. I think the most aspiring new businesses 
and who are not even aware of the decision, let alone aware of 
the complexities and costs that they are facing. And certainly, 
many warned that it would result in such change of their plans. 
It may result in some changes in how we sell in Amazon.
    One of the small things, is not big in terms of the dollars 
for sales, but you know just for helping things out is that we 
have a program where nonprofits can purchase our products and 
because they are nonprofits, they do not have to pay sales tax. 
Unfortunately, when we get the work from Amazon, there is no 
indication that it was made by a nonprofit, and then we see 
this taxed and we think, there is no tax on it and we think 
there should be, then we can try to find your way into the 
Amazon system.
    If you have never tried that, I cannot tell you how 
incredibly complex it is. But we would try to get into the 
system and find the certificate that was filed with the order 
that was then attached to the transaction, then we edit it in 
the software to remove the tax that we at that point aligned.
    Senator Shaheen. Mr. Hennessey, do you have anything----
    Mr. Hennessey. Yes, I think more significant will be a 
couple years from now when States come knocking on small 
businesses doors who do not realize what they needed to be 
doing to comply, or could not figure it out, and we will hear 
some really sad story then.
    Senator Shaheen. Let me just recognize two legislators who 
have come into the room. Representative Almy and Representative 
Meigs are here and I know that you have both worked, or trying 
to, mitigate in the State legislature the impacts of the 
Wayfair decision. So, thank you both for your efforts.
    Clearly, we have a lot more work to do. I want to go back 
to the conversation that a number of you have made 
recommendations on and that is, what could be done to help 
address this in a way that makes it easier for businesses? We 
talked about standardization, we talked about some sort of a 
pause on when the legislation becomes effective, a minimum 
level of sales for businesses to exempt certain businesses.
    Are there other recommendations that you all would have 
that we should be thinking about in Washington as we think 
about how do we take this court decision and make it work 
better for small business?
    Mr. Badger. One tax rate per State would be extremely 
helpful, and also one audit nationally, or at the very least 
one audit per State.
    Senator Shaheen. Okay. One audit nationally is----
    Mr. Badger. Would be really great. And just the 
simplification overall, really. And again, the States will 
benefit nothing, I don't think--the simpler it is, the more 
businesses will comply, and to a point where we need to comply.
    Senator Shaheen. Anything else?
    Mr. Hennessey. You know, just standardization of 
thresholds.
    Senator Shaheen. Senator Hassan.
    Senator Hassan. Well, thank you. And again, this has been 
really helpful. I wanted to start this question with Ms. Byers, 
but then ask everybody to comment. Ms. Byers, your testimony 
rightly emphasizes that compliance burdens imposed by the 
Wayfair decision are far more likely to hurt small businesses 
than major companies, and this is going to impact businesses in 
every State, including those with sales taxes.
    And I think that is really important because there has been 
a little bit of a focus on the few States that don't have sales 
taxes, and everybody thinks we are just concerned because we do 
not have sales taxes. But as your testimony makes clear, you 
mentioned an auction company in Kansas, for example, that is 
struggling with the sales tax collection burdens. And I know 
you closely track these issues as chair of the sales tax task 
force, which is a mouthful, for the National Auctioneers 
Association. So, can you tell us how Wayfair is hurting small 
businesses and States with sales taxes so that we can convey 
this to our colleagues in the Senate as we continue to push 
forward?
    Ms. Byers. Sure. I would say there are 45 States that have 
sales tax, and a majority of the members of the NAR in those 
States, a few hang out here in New Hampshire. So, and I this 
has been alluded to by the other gentleman is that we have that 
first case where we actually had a person reach out to us and 
tell us the actual numbers which is lovely too. It is nice to 
have facts to respond, it is horrible to say going out of 
business, but a lot of the auction companies they kind of all 
feel it coming down the road, but we don't actually have cases 
yet because the States have been very good about not sending 
the auditors out.
    There was a paper that came out saying that last year 
Hawaii was going to start sending out the audit letters to 
everyone and the rest of the State's revenue groups kind of 
went to Hawaii and were like, don't, just hold the line, 
because we're getting money coming in that we were not getting 
before, and as soon as you remove the carrot and bring out the 
stick, everyone is going to run to the edges. So, we know it is 
coming down the pipe and there are companies that are not 
feeling it, but it is hard because no one has actually gotten 
the official letter shipment from the different States.
    And the companies that are in compliance because they are 
trying to find out about it, they are just still trying to wrap 
their brains around it. Like, you know, we have spent $20,000 
dollars this year. We think we are in compliance, but that 
could change because the State legislators also are changing 
their rules. You know, California is a good example that 
everyone kind of worried about. You know, they have set three 
thresholds over the course of three years that will change the 
numbers.
    Some States used to have higher thresholds and are lowering 
them down because they want to get more income. So even if you 
build a software program and it is perfectly acceptable, on any 
given day and usually in the spring, those numbers are changing 
or what is taxable is changing. So, you are kind of trying to 
run ahead of a wave that you can never get out of the way of. 
That is--we know it is coming but it is hard to kind of get 
anyone to be like, you know, my seven-year-old company is going 
to be gone in a year.
    Senator Hassan. Right. Mr. Moore, what about you? Are you 
hearing from other businesses and States that have sales taxes?
    Mr. Moore. Yes. Our customers are all across the United 
States to supply inventory and one of the challenges that they 
have is that a lot of these are resellers or they are buying 
product with someone else, and then they are reselling it and 
then what we get are their returns. So, returns historically 
and years ago were not that important but now it is really a 
difference between profitability and how profitable you are as 
a company. So, the recovery that we can get in repurposing 
those products is really, really important to them. I know it 
pass through 1 or 2 percent, and on really thin margins to 
begin with, is huge.
    Senator Hassan. Mr. Hennessey.
    Mr. Hennessey. You know, an example would be a company 
similar size in the Midwest that is in a taxable State and 
being a taxable State with only one physical location simply 
provides you that slate head start because you are collecting 
in that one State, but you still must learn the remaining 44 
States and local jurisdiction. So, it is just a small step in 
the right direction. But it is just as daunting for companies 
elsewhere.
    Senator Hassan. Mr. Badger.
    Mr. Badger. I do not really have much to add to that but a 
couple points that have not come out. One is that the way 
people purchase products, from when they purchase products, 
they start to matter. They instead make it become determined by 
who is charging taxes and who is not charging tax.
    And so, for a small company, they actually enjoy some of an 
advantage to the point where they need to start collecting tax 
because they can offer product up to 10 percent less than a 
company that is charging tax. And the other point that really 
has not come up is that while this is the additional money is 
going to States who collect tax, it is based on added taxation 
of their own citizens. So, it is a new tax.
    Senator Hassan. Thank you. I have one other topic to ask 
about it. So and again I will start with Ms. Byers because it 
seems to be that the other thing you mentioned in your 
testimony that is a particularly difficult and perplexing issue 
to deal with is that there are so many different kinds of the 
so-called nexus requirements that States have passed following 
the Wayfair decision, including economic marketplace, click 
through, and affiliate nexus. All of you mentioned this at some 
level, so starting with Ms. Byers, could you just give us an 
overview of these different requirements and how the 
complexities of determining nexus makes promoting a sales tax 
collection so burdensome for small businesses?
    Ms. Byers. Sure. So, the old rule of thumb that we had with 
Quill was physical presence which basically meant the employee 
and inventory--there was something physical in a State and that 
was what everyone worked of which is very easy to conceptualize 
something in the State. Economic nexus is the next most common 
one most States are using and that is saying that they need to 
have a certain number of transactions or a certain number of 
sales, and we are usually using gross sales, to determine that 
you have economic viability in that State and therefore you owe 
money to that State for the sales part of it. We also have a 
situation which is the economic plus nexus, which has to do 
with cookies.
    Massachusetts has in the legislature a cookie nexus, so if 
any transaction between me and anybody else, for some reason 
there was to be a cookie placed on any physical computer inside 
the State of Massachusetts, even if I was selling from New 
Hampshire to Maine, but the server went through Massachusetts, 
technically in Massachusetts law, that is a cookie nexus and I 
have therefore transactions on their State which is a little 
hard to get your brain around. You have to track the digital 
footprint for that.
    And affiliate nexus has to do with having a business that 
is tied to that State in some way. So maybe one of your major 
supply partners is in that State so therefore you have an 
affiliate nexus, which again, is not a direct correlation 
between the customer and the buyer and seller has to do with 
how the business models work. The click-through nexus has to do 
with links on a website, again, kind of like the cookie nexus 
but slightly different. So, if someone wanted to buy something 
and they clicked through a site, then click through to another 
site, to your site, since then clicked to those two initial 
sites, those are nexus inside those other States where those 
sites are being posted.
    And then the marketplace facilitator law, which is kind of 
the one that everyone heard about this year again with 
California because there are so many businesses out there, is 
the one that conceptualizes eBay. So, although I might be doing 
sales inside New Hampshire to someone else in New Hampshire, 
eBay as a facilitator of me selling it, they are going to kind 
of keep track of what I am doing and how to do it. So again, a 
gentleman selling a coin in Missouri to someone in California, 
even though that transaction itself probably did not cross the 
threshold, eBay as a company since it is going through the eBay 
site is going to cross that threshold so they are going to 
collect taxes on all those smaller transactions because the 
State has said the facilitator, once you cross our thresholds, 
you have to collect taxes on all those transactions.
    So even though the seller is only doing $10,000, $5,000 in 
business, eBay is doing 10 million in business, so they are 
going to cross the threshold and then that contact makes click.
    Senator Hassan. To say that business owners have to learn a 
lot about a lot of different things is an understatement right 
there, so thank you. Does anybody else have anything to add on 
those issues?
    Mr. Moore. I will just dive into it. I am with nexus, 
because if within that, there is--the standard is a 100,000 
sales, 200 transactions. Some States it is 4, some States is 
10, and some States is retail only, some States is wholesales, 
freights included in some States and in other States, etc. And 
so even within that single component, there are layers and 
layers of complexity.
    Senator Hassan. Thank you.
    Mr. Hennessey. That is what I was talking about, the 
standardization and that should apply also. The only thing I 
would also add that is another level of complexity is we are 
selling on Amazon, geographic nexus gets complex because when 
you add inventory into the FBA program, they can put it in any 
one of their warehouses around the United States, and that 
comes the nexus for you.
    Senator Hassan. Thank you very much.
    Senator Shaheen. Thank you. I just have a final couple of 
things. Mr. Badger, you talked about the SST initiative. Do you 
know who is heading that up? Is that something that----
    Mr. Badger. There is an SST board. I believe it is made up 
of all the States that are--just, there are several levels, 
there are advisors, etc. As I said, it is sort of the right 
start to things, but it really needs all States to be involved. 
There are a couple of things about it though that really need 
to be modified. One is that part of the program you have to 
work with one of the certified compliance services.
    It is a very short list and at least a couple we could not 
use because of the software we use for our accounting, etc. 
Ones that don't want any more SST clients because their filing 
rate has been negotiated down. They would rather take on non-
SST and get more for filing. So, then one other last thing is 
that through the SST program, those client service companies 
are the ones liable for any audit, which in turn makes them 
somewhat paranoid about what advice they give. But also, how 
they handle things.
    That is where we had a problem with Amazon SST because we 
are working with a company that is not the company that does 
the calculation for Amazon. So, our company does not trust that 
company. Our company does their own calculation and we will 
only remit that calculation even if it is less than or more 
than what we charge the customer. If it is more than, that is 
okay, we can just subsidized the difference. If it is less 
than, then technically you should be sending out a refund check 
to that customer. And at that point you collected taxes that 
were not remitting. And yet the one paying is not a big deal. 
All those checks are something of a big deal. Having all those 
checks and never cashed is a huge deal.
    Senator Shaheen. I am just trying to think about where else 
there might be help in responding to the decision.
    Mr. Badger. And I think SST, that is the right direction. 
It just needs to be cleaned up a little bit. But really that is 
the direction it needs to go in. And again, it needs to go 
further to the point where those service providers aren't 
necessary to the business to take care of things on their own 
if they choose and right now, that is not possible.
    Senator Shaheen. Can I ask the committee staff, is the 
committee familiar with the SST initiative?
    Mr. Wenthouse. Yes. We have been monitoring its progress.
    Senator Shaheen. I would suggest that we ought to think 
about bringing them in along with some of the other folks who 
are working on compliance for a hearing, for a Small Business 
hearing. I know we have got representatives from the chambers 
who are here, and I assume that they are here partly to find 
out how they can be helpful with questions that small 
businesses may ask them. Are there any initiatives that you all 
have been part of on the part of the Chambers of Commerce or 
any associations that you are part of, obviously the Auctioneer 
Association is one of those, who are trying to provide help to 
small businesses and dealing with this decision?
    Mr. Badger. I do not know if anybody out there. The closest 
we can find is there is sort of this almost like a vending 
machine type setup for legal advice where you go online, put in 
your credit card, you are given a one-hour appointment, and 
then you get some advice. Sort of--like five cent----
    [Laughter.]
    Senator Shaheen. Kind of like an 800 network.
    Mr. Badger. Beyond that, you know, as I said, if we ask the 
client service companies, they say they do not want to be 
liable for that. Tax professionals, they say ask the software 
company because they do not want to tax you for doing it. I do 
not think there really is that type of resource out there.
    Mr. Hennessey. We are historically a catalog mailer and 
there is an organization called the American Catalog 
Association that has done a considerable amount of work to help 
small businesses like us understand and advocate for our 
interests. So, they have been a very good resource for us. 
Their assistance goes so far, and then when you get into more 
products specific, business specific, we hire our own experts.
    Senator Shaheen. Anybody else has had any luck with having 
outreach?
    Ms. Byers. Well our Association, obviously, has been 
entirely involved. We actually filed an amicus brief on behalf 
of Wayfair kind of to make the point of small businesses, and 
then also in the coining world, there is the Industry Council 
on Tangible Assets, which has done some work. Being that they 
are focused solely on coins, they are usually doing work at the 
State level in terms of making the exemptions for bullion, the 
exemptions for collector coins that is very specific to asset 
class.
    Besides that, most chambers I have interacted with either 
are unaware or just, you know, they think that they only can 
control potentially what is in their jurisdiction in their 
State. They are working inside their State, but after that it 
is going to the Federal Government to talk to them, welcome 
that lobbying in you guys' part.
    Senator Shaheen. I also have no further questions, so can I 
just ask the panelists if there is anything else that any of 
you would like to raise before we close the hearing?
    Mr. Moore. I don't have any questions. I just really 
appreciate your efforts in this area.
    Mr. Hennessey. Yes, absolutely. Thank you for having the 
hearing.
    Senator Shaheen. Thank you all very much. I am hopeful that 
as Congress learns more about the challenges that small 
businesses are facing, there will be more opportunity to pass 
some legislation spun in a way that could be really helpful.
    Mr. Badger. And pushing that is really all small 
businesses, not just in taxed States.
    Senator Hassan. That is right. And I think that is one of 
the tasks in front of us is to engage Senators and tell them 
that this really does impact their State, you know. And 
certainly, one of the tasks that I have on the Finance 
committee, so we will continue to work on that.
    Senator Shaheen. Well, again, thank you all so much for 
being here. To everyone in the audience, thank you all very 
much. Anyone who would like to submit written testimony, we 
have two weeks. So, two weeks from today, we can accept written 
testimony. And we would appreciate any comments that any of you 
have.
    Thank you all. I will close this hearing at this point 
officially.
    [Whereupon, at 3:48 p.m., the hearing was adjourned.]
  

                                  [all]