[Congressional Record Volume 159, Number 62 (Monday, May 6, 2013)]
[Senate]
[Pages S3070-S3077]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MARKETPLACE FAIRNESS ACT
Mr. ENZI. Mr. President, I rise today to urge my colleagues to vote
for the Marketplace Fairness Act in just over an hour or so from now. I
have said many times over the past few weeks--and, in fact, I have been
saying it for the past 12 years as I have worked on this issue, but it
is worth repeating--this bill is about fairness. It is about leveling
the playing field between the brick and mortar and online companies and
it is about collecting a tax that is already due. It is not about
raising taxes, taxing the Internet, or taxing Internet access.
This bill in general, and this bill in particular, has grabbed the
attention of Members of the Senate and their constituents back home.
Unfortunately, the misinformation that is being disseminated by many
has added confusion and anxiety about what the bill does and does not
do. For example, the Americans For Tax Reform sent me a detailed letter
last week asking many questions. It appears the letter was not meant to
find resolution or a path forward with this issue but ultimately to
confuse my colleagues prior to tonight's vote. Senator Alexander and I
responded to the 16 questions in order to provide clarity for the
organization and its members.
Mr. President, I ask unanimous consent to have printed in the Record
the two letters to which I just referred.
There being no objection, the material was ordered to be printed in
the Record as follows:
Americans for Tax Reform,
Washington, DC, May 2, 2013.
Hon. Mike Enzi,
Senate Russell Office Building, Washington, DC.
Dear Senator Enzi: We believe that there are a number of
unanswered questions concerning the Marketplace Fairness Act
that remain troubling to taxpayers. We would appreciate your
leadership in answering the following questions regarding the
legislation as it stands and the recent manager's amendment
that you filed to S. 743, the Marketplace Fairness Act.
1) What measures protect businesses from tax audits, court
proceedings and penalties like tax liens imposed on a
business by state departments of revenue where the business
has no physical presence? How will businessmen and women be
protected over time from politicians in a different state
that they cannot vote for or against? Is there a danger of
establishing taxation without representation?
2) Does the bill prevent double taxation by removing the
Use Tax? If states still have a Use Tax law on the books what
provisions of MFA prevent states from charging Use Tax in
addition to sales tax?
3) Can states audit remote sellers for customer data and
then retroactively (i.e., prior
[[Page S3071]]
to the enactment) audit citizens for ``unpaid'' Use Taxes?
Some states, such as California, can perform audits reaching
back six years. Can states ask remote sellers for historical
customer purchasing data and then audit citizens based on
this data?
4) While the legislation says that it does not break
physical nexus requirements for other types of taxation, some
states have ``privilege'' taxes already in law. Some of these
privilege taxes require enaction of MFA as written to enforce
``privilege'' tax collections. For example Michigan law
states:
``there shall be collected from all persons engaged in the
business of making sales at retail, by which ownership of
tangible personal property is transferred for consideration,
an annual tax for the privilege of engaging in that business
equal to 6% of the gross proceeds of the business, plus the
penalty and interest if applicable . . .''
Is there anything in MFA that prevents this type of
application of MFA collection standards?
5) If states do not conform with MFA requirements or basic
simplification requirements, does Section 6 of the MFA permit
them to continue to expand ``nexus definition'' laws? Can
California collect tax based on economic nexus laws? Can New
York collect based on affiliate nexus laws? Could Oklahoma
expand its reporting requirement laws across its borders?
6) Why are tribal lands now included as ``states'' in the
manager's amendment? Why were tribal lands not included in
the original bill? Have any of the tribes agreed to the same
rules the states have, or asked to be included?
7) During the floor debate, there were many questions on
how the MFA would apply to sellers based in other countries.
What is the enforcement process for overseas sellers with no
presence in the United States? Are they required to comply
with state tax collection duties? Under MFA, do states have
the ability to bring enforcement actions against overseas
businesses that are selling remotely into the state?
8) Does the MFA protect the small sellers, who would be
eligible for the small seller exemption, from states that
exercise their Section 6 discretion to expand their tax
collection authority through nexus definitions?
9) While the minimum simplification requirements preclude
the Streamlined Sales Tax Agreement (SSUTA), if states make
changes to the SSUTA after the enaction of MFA do those
changes become law?
10) Included in the manager's amendment is language that
clarifies that a state may not impose requirements on remote
sellers that they do not impose on non-remote sellers.
Currently, many states give special state sales tax deals for
businesses with in-state presence, while offering remote
sellers no such deal. Since this practice is giving
preferential treatment to in-state sellers in relation to the
collection and remittance of sales taxes, will this be
prohibited under MFA. Will there be any limitation on states
giving special sales tax breaks to large in-state businesses
while forcing strictly out-of-state businesses with no
presence to comply?
11) Under SSUTA states agreed that sales price was the cost
that a consumer actually paid for an item. However, Nebraska
wants to claim that ``sales price'' is the gross price before
discounts and coupons, thereby charging the business tax on
retail value rather than amount paid (Think discounts from
Groupon or Living Social. If the retail cost is $75, but the
discount makes it $25, Nebraska would want to collect sales
tax on the $75 rather than the amount actually paid, which
was $25). Is there anything in the MFA that prevents this
type of excessive taxation from occurring in Nebraska or
other states? From what we understand the minimum
requirements of MFA do not prevent this type of theoretical
taxing from occurring.
12) How could MFA requirements affect the financial
services sector? Will financial products that are sold over
the Internet, like portfolio management services, credit
reporting service apps, or insurance service fall under MFA
taxation authority?
13) Home-schooling parents meet at state, regional, and
national gatherings in part to sell used textbooks and
related products that their children have completed. If these
transactions are conducted online through an aggregation
site, would the transactions be subject to the MFA small-
seller exemption in states that exercise their Section 6
discretion to expand their tax collection authority through
nexus definitions?
14) How will the MFA affect digital goods and services?
Without a clear structure for digital goods taxation, these
types of goods could fall under multiple taxation schemes.
Does the MFA protect digital goods from multiple taxation?
15) In terms of digital goods, like apps and music, who is
responsible for remitting the sales tax: the vendor, an app
store or sales platform, or the creator of the digital good?
16) Some states, like Maryland have different sales tax
rules for goods that are priced under one dollar. For
example:
Effective January 3, 2008, the Maryland sales and use tax
rate is 6 percent, as follows:
1 cent on each sale where the taxable price is 20 cents.
2 cents if the taxable price is at least 21 cents but less
than 34 cents.
3 cents if the taxable price is at least 34 cents but less
than 51 cents.
4 cents if the taxable price is at least 51 cents but less
that 67 cents.
5 cents if the taxable price is at least 67 cents but less
than 84 cents.
6 cents if the taxable price is at least 84 cents.
On each sale where the taxable price exceeds $1.00, the tax
is 6 cents on each exact dollar plus:
1 cent if the excess over an exact dollar is at least 1
cent but less than 17 cents.
2 cents if the excess over an exact dollar is at least 17
cents but less than 34 cents.
3 cents if the excess over an exact dollar is at least 34
cents but less than 51 cents.
4 cents if the excess over an exact dollar is at least 51
cents but less than 67 cents.
5 cents if the excess over an exact dollar is at least 67
cents but less than 84 cents.
6 cents if the excess over an exact dollar is at least 84
cents.
If Maryland, or states wishing to follow suit, do not
comply with SSTP or the minimum simplification requirements
included in MFA, can they tax low-cost goods in this way?
This applies in particular to digital goods like apps and
songs. Does the MFA require simple, flat taxes for low cost
and digital goods?
Thank you in advance for your consideration and response to
our concerns. I look forward to working with you to address
these issues and ensure no legislation is passed that harms
taxpayers nationwide. If you have any questions or concerns
while responding to this letter, please have your staff
contact Katie McAuliffe.
Onward,
Grover G. Norquist.
____
U.S. Senate,
Washington, DC, May 4, 2013.
Mr. Grover Norquist,
Americans for Tax Reform
12th Street, NW., Washington, DC.
Dear Mr. Norquist, We appreciate your direct interest in
better understanding the Marketplace Fairness Act, and we
welcome the opportunity to respond to the questions outlined
in your May 2nd letter. Below are answers to your questions
regarding S. 743, the Marketplace Fairness Act, and the
perfecting amendment filed last week.
1) What measures protect businesses from tax audits, court
proceedings and penalties like tax liens imposed on a
business by state departments of revenue where the business
has no physical presence? How will businessmen and women be
protected over time from politicians in a different state
that they cannot vote for or against? Is there a danger of
establishing taxation without representation?
The Marketplace Fairness Act (MFA) includes many
significant benefits for remote sellers, including limits on
audits, critical liability protection, and tax and
administrative simplification. It is also important to
remember that the sales tax is imposed on the consumer by the
state where they reside, so that is the ultimate check
against excessive taxation. Because the tax is imposed on the
consumer, there is no danger of taxation without
representation.
2) Does the bill prevent double taxation by removing the
Use Tax? If states still have a Use Tax law on the books what
provisions of MFA prevent states from charging Use Tax in
addition to sales tax?
There is not double taxation between a sales tax and a use
tax. A Sales tax is imposed by states on applicable
transactions. A use tax only applies if the sales tax is not
collected or imposed.
3) Can states audit remote sellers for customer data and
then retroactively (i.e., prior to the enactment) audit
citizens for ``unpaid'' Use Taxes? Some states, such as
California, can perform audits reaching back six years. Can
states ask remote sellers for historical customer purchasing
data and then audit citizens based on this data?
No. The authority provided by the MFA is prospective and
builds in considerable ``waiting periods'' before states can
exercise collection authority after they have adopted the
minimum simplification requirements.
4) While the legislation says that it does not break
physical nexus requirements for other types of taxation, some
states have ``privilege'' taxes already in law. Some of these
privilege taxes require enaction of MFA as written to enforce
``privilege'' tax collections. For example Michigan law
states:
``there shall be collected from all persons engaged in the
business of making sales at retail, by which ownership of
tangible personal property is transferred for consideration,
an annual tax for the privilege of engaging in that business
equal to 6% of the gross proceeds of the business, plus the
penalty and interest if applicable . . .''
Is there anything in MFA that prevents this type of
application of MFA collection standards?
Sales and use taxes are often called by different names,
such as the general excise tax in Hawaii, the gross receipts
tax in New Mexico or the transaction privilege tax in
Arizona. All of these taxes are sales and use taxes, where
the retailer is authorized (and in most cases required) to
collect the tax directly from the consumer and to identify
the tax on the consumer's invoice or receipt.
5) If states do not conform with the MFA requirements or
basic simplification requirements, does Section 6 of the MFA
permit them to continue to expand ``nexus definition'' laws?
Can California collect tax based on economic nexus laws? Can
New York collect based on affiliate nexus laws? Could
Oklahoma expand its reporting requirement laws across its
borders?
Section 6 does not alter nexus standards, as interpreted by
the Supreme Court. The
[[Page S3072]]
Supreme Court has declined to extend the ``physical
presence'' standard beyond sales taxes, and it has not taken
any cases to clarify the constitutionality of ``economic
nexus'' laws. Other Supreme Court decisions, such as Scripto
and Tyler Pipe, have made clear that in regard to sales tax,
affiliates and independent contractors can create physical
presence for sales tax collection purposes. The MFA addresses
these problems by setting specific standards for states who
wish to require remote sellers to collect state sales taxes.
6) Why are tribal lands now included as ``states'' in the
manager's amendment? Why were tribal lands not included in
the original bill? Have any of the tribes agreed to the same
rules the states have, or asked to be included?
Tribal governments are required to meet the same conditions
as states choosing to participate. Tribal governments were
included in earlier versions of this legislation, and they
requested that they also be given the ability to collect
sales taxes if they choose to exercise the authority granted
by this legislation.
7) During the floor debate, there were many questions on
how the MFA would apply to sellers based in other countries.
What is the enforcement process for overseas sellers with no
presence in the United States? Are they required to comply
with state tax collection duties? Under MFA, do states have
the ability to bring enforcement actions against overseas
businesses that are selling remotely into the state?
States currently enforce collection of state taxes against
foreign businesses with no physical presence in the United
States, and have a number of methods to compel collection by
foreign sellers including liens, levies and seizure of
assets. The MA treats foreign corporations the same as it
does domestic corporations. All online retailers that make
over $1 million in remote sales, regardless of where the
retailer is located, must collect and remit sales tax to
states that require it.
8) Does the MFA protect the small sellers, who would be
eligible for the small seller exemption, from states that
exercise their Section 6 discretion to expand their tax
collection authority through nexus definitions?
The MFA does not alter nexus standards, as interpreted by
the Supreme Court.
9) While the minimum simplification requirements preclude
the Streamlined Sales Tax Agreement (SSUTA), if states make
changes to the SSUTA after the enaction of MFA, do those
changes become law?
The MFA does not ``preclude'' the SSUTA, and changes to the
SSUTA have no force of law because any changes to the
agreement must be enacted by individual states and their
legislatures. The MFA recognizes that the SSUTA already
incorporates the simplifications and protections embodied
within the MFA. Thus, states that have already enacted laws
to comply with SSUTA are granted authority by the MFA to
require remote sellers to collect tax. The MFA also ensures
that future changes to the SSUTA meet the simplifications and
protections provided in the MFA.
10) Included in the manager's amendment is language that
clarifies that a state may not impose requirements on remote
sellers that they do not impose on non-remote sellers.
Currently, many states give special state sales tax deals for
businesses with in-state presence, while offering remote
sellers no such deal. Since this practice is giving
preferential treatment to in-state sellers in relation to the
collection and remittance of sales taxes, will this be
prohibited under MFA? Will there be any limitation on states
giving special sales tax breaks to large in-state businesses
while forcing strictly out-of-state businesses with no
presence to comply?
The MFA does not dictate to the states how they structure
their state tax systems; to do so would be a fundamental
violation of state sovereignty and the constitutional
framework of our government embodied by the 10th Amendment.
The MFA simply grants states the authority to enforce state
sales tax laws on remote sales.
11) Under SSUTA, states agreed that sales price was the
cost that a consumer actually paid for an item. However,
Nebraska wants to claim that ``sales price'' is the gross
price before discounts and coupons, thereby charging the
business tax on retail value rather than amount paid (Think
discounts from Groupon or Living Social. If the retail cost
is $75, but the discount makes it $25, Nebraska would want to
collect sales tax on the $75 rather than the amount actually
paid, which was $25). Is there anything in the MFA that
prevents this type of excessive taxation from occurring in
Nebraska or other states? From what we understand the minimum
requirements of MFA do not prevent this type of theoretical
taxing from occurring.
The MFA does not dictate to the states how they structure
their state tax systems. Residents of Nebraska, not
Washington, should determine the appropriate level of state
taxation in Nebraska.
12) How could MFA requirements affect the financial
services sector? Will financial products that are sold over
the Internet, like portfolio management services, credit
reporting service apps, or insurance service fall under MFA
taxation authority?
The MFA does not affect the financial service sector, and
no state imposes a sales tax on financial transactions.
13) Home-schooling parents meet at state, regional, and
national gatherings in part to sell used textbooks and
related products that their children have completed. If these
transactions are conducted online through an aggregation
site, would the transactions be subject to the MFA small-
seller exemption in states that exercise their Section 6
discretion to expand their tax collection authority through
nexus definitions?
The small seller exemption applies to all remote sellers,
and no discretion is given to states with respect to the
amount of the small seller exemption. The term ``remote
seller'' is defined in the bill and means a person that makes
remote sales. Only individual remote sellers who make more
than $1 million in remote sales each year can be required to
collect state sales taxes.
14) How will the MFA affect digital goods and services?
Without a clear structure for digital goods taxation, these
types of goods could fall under multiple taxation schemes.
Does the MFA protect digital goods from multiple taxation?
The MFA does not affect the taxability of goods, digital or
otherwise.
15) In terms of digital goods, like apps and music, who is
responsible for remitting the sales tax: the vendor, an app
store or sales platform, or the creator of the digital good?
The person responsible for remitting sales tax is exactly
the same under the MFA as it is under current state law. The
question under state law remains as it always has: who is
making the ``sale'' as defined in state law? The party making
the ``sale'' first collects and then remits the tax.
16) Some states, like Maryland have different sales tax
rules for goods that are priced under one dollar. For
example:
Effective January 3, 2008, the Maryland sales and use tax
rate is 6 percent, as follows:
1 cent on each sale where the taxable price is 20 cents.
2 cents if the taxable price is at least 21 cents but less
than 34 cents.
3 cents if the taxable price is at least 34 cents but less
than 51 cents.
4 cents if the taxable price is at least 51 cents but less
that 67 cents.
5 cents if the taxable price is at least 67 cents but less
than 84 cents.
6 cents if the taxable price is at least 84 cents.
On each sale where the taxable price exceeds $1.00, the tax
is 6 cents on each exact dollar plus:
1 cent if the excess over an exact dollar is at least 1
cent but less than 17 cents.
2 cents if the excess over an exact dollar is at least 17
cents but less than 34 cents.
3 cents if the excess over an exact dollar is at least 34
cents but less than 51 cents.
4 cents if the excess over an exact dollar is at least 51
cents but less than 67 cents.
5 cents if the excess over an exact dollar is at least 67
cents but less than 84 cents.
6 cents if the excess over an exact dollar is at least 84
cents.
If Maryland, or states wishing to follow suit, do not
comply with SSTP or the minimum simplification requirements
included in MFA, can they tax low-cost goods in this way?
This applies in particular to digital goods like apps and
songs. Does the MFA require simple, flat taxes for low cost
and digital goods?
The MFA does not require states to adopt the SSUTA. In
fact, the legislation does not require states to do anything.
However, states must adhere to the simplifications and
protections provided in the MFA if they choose to simplify
their tax systems and require remote sellers to collect state
taxes.
The table reproduced above is an if/then statement of the
kind that computers have been able to process for decades. In
other words, this apparently complicated rounding method
isn't complicated at all for computers to process.
Thank you for giving us the opportunity to respond to your
questions. We look forward to working with you to address
these issues as we move forward with the enactment of the
Marketplace Fairness Act.
Sincerely,
Michael B. Enzi,
U.S. Senate.
Lamar Alexander,
U.S. Senate.
Mr. ENZI. I would encourage everyone to read the bill. It is short--
11 pages. You don't see many like this. You can see through that;
right? It is a bill you can read from beginning to end and you can
understand what it does, which is very unusual for Washington. It is
not like a lot of bills that simply make changes to other bills and
require you get hold of those other bills and read them to figure out
what is going on. This bill is straightforward.
If a State meets the simplification requirements outlined in the
bill, it may choose to require collection of sales taxes that are
already due. Congress is not forcing States to do anything. And if
States do act, they are collecting taxes already due by consumers--
folks such as you and me.
One of the issues that received much attention while debating this
bill the past few weeks is the issue on audits. There is some concern
small businesses will be subjected to onerous and time-consuming audits
by State and local governments if those governments start requiring
they collect sales taxes on these remote sales. It is critical to keep
in mind that sellers that have under $1 million in remote sales in 1
year are not required to collect and
[[Page S3073]]
would not be subject to an audit from any out-of-State government.
In order to obtain authority to require remote sellers to collect,
and therefore even have the potential of being audited by remote
governments, States either must join the Streamlined Sales Tax and Use
Agreement--and I will refer to that as the Streamlined States--or they
can simplify their tax structure by creating a single entity within the
State responsible for all State and local taxes and use tax
administration and audits; establishing a single audit statewide;
limiting collection to a uniform State and local tax base; allowing a
single sales and use tax return; and providing the program to figure
the tax with no liability to the retailer and, therefore, no need for
an audit.
For States that join the Streamlined Sales Tax and Use Agreement, a
remote business would only be subject to a single audit for
participating streamlined States, eliminating the possibility of audits
by local governments and the probability of an audit.
For States that do not join the streamlined States but choose to
participate in the alternative simplification system outlined in the
bill, a business would also be limited to a single audit, per State,
per year.
Practically speaking, there is no possibility that streamlined States
or non-streamlined States would ever be able to perform significant
audits of remote sellers.
Today, the States audit less than 1 percent of retailers inside their
borders. Auditing remote sellers would require additional resources and
travel and is simply not a realistic possibility.
For audits that are performed under the new system, the Marketplace
Fairness Act demands that States adopt uniform audit procedures which
would simplify and reduce business administrative expenses.
Sellers who use the certified sales tax administration software would
either not be audited or would have limited scope audits to determine
that the software was properly installed.
In addition to the audit protection the Marketplace Fairness Act
provides, participating States are required to establish and maintain
an accessible database of geographically based tax rates and tax base
information to make it easier for remote sellers to collect taxes.
These states are also required to hold those sellers harmless for
errors in the database.
Compared to today's sales tax administration, where sellers are
expected to research and comply with tax rate and tax base information
and to understand jurisdictional boundaries without help from the state
and local governments, the Marketplace Fairness Act dramatically
reduces administrative burden and audit risk.
Some opposed to this bill go so far as to say that this potential
overreach of State and local governments will lead to taxation without
representation. The Marketplace Fairness Act includes significant
benefits for remote sellers, including limits on audits, liability
protections, and tax and administrative simplification. The tax is
imposed on the consumer by the State where they reside pursuant to tax
rates and a tax base established by the State and local governments.
This serves as the ultimate check on excessive taxation. Because this
tax is imposed on the consumer, there is no danger of taxation without
representation.
Another concern raised by a few of my colleagues is that businesses
will leave the United States, set up shop outside our borders, and sell
into the United States, presumably only because of a sales tax
collection requirement. It is important to note that States currently
enforce collection of State taxes against foreign businesses with no
physical presence in the United States, and have a number of methods to
compel collection by foreign sellers, including liens, levies, and
seizure of assets. The Marketplace Fairness Act treats foreign
corporations the same as it does domestic corporations. All online
retailers that make over $1 million in remote sales, regardless of
where the retailer is located, must collect and remit sales tax to
States that require it.
I would say this. No one works on a bill such as this, works on it 12
years, as a popularity contest. You have to be doing what is right. I
have listened to the people, talked to the people, and know this is
something that is going to be necessary to keep Main Street in business
so people will have the ability to go to the store and make a selection
and try the goods, feel the goods, and know it is right and that
retailer is not going to have to worry about the person using their
iPhone to get the barcode and order it from somebody else because of a
sales tax difference. That is what will keep Main Street viable and the
downtowns making it look like there is a growing community.
In conclusion, I thank everyone associated with this bill for their
hard work and efforts in getting us to this point. I thank Senators
Alexander, Durbin, and Heitkamp for their unwavering support of this
bill and moving it forward in the Senate. I thank all of the cosponsors
of the bill. I very much appreciate their support. I thank all the
businesses, the trade groups, the constituents who provided
constructive feedback as we have attempted to address, as best we can,
all the concerns that have been raised.
I thank all of the staff who have worked on this issue--on my staff,
my legislative director Randi Reid. She has worked on this as long as I
have. She is probably, on the Hill if not the country, the expert on
marketplace fairness or any of the other titles this kind of bill may
have had.
I also thank my tax counsel, Eric Oman; Corey Tellez, Beth Cook, Dena
Morris, Reema Dodin, MJ Kenny; Ben Garmisa on Senator Durbin's Staff;
Allison Martin, Michael Merrell, and David Cleary on Senator
Alexander's staff; Jillian Fitzpatrick on Senator Heitkamp's staff; and
all of the staffs of the bill's cosponsors and all of the people in
offices that have been taken into the process so we could get the
process to work. It is always a team effort, and it takes more than
ones who are just leading the effort. I know there are an immeasurable
number of hours they have put in on this issue and I thank all of them
for their hard work.
I look forward to continuing to work with my House colleagues,
Congressman Womack, Congresswoman Speier, Congressman Conyers, and
Congressman Welch, as they push forward to the House passage of the
Marketplace Fairness Act.
I also thank Senator Durbin for all of his energy on this bill, the
perspective he was able to bring to the bill and his tremendous ability
to communicate the issues. I thank Senator Alexander. We were working
on a much bigger bill until Senator Alexander lent some expertise to
make this a much simpler one, one that is completely readable and only
11 pages.
I think that covers most of the objections. There will be some from
the States that do not charge a sales tax at all because if their
businesses exceed $1 million in on-line sales, then they will have to.
If they sell into States that collect the sales tax, they would have to
participate in the collection of that.
As we push forward with House passage of the Marketplace Fairness Act
and as we finish in the Senate tonight, as I am confident we will, I
thank all who are participating in it, particularly the people of
courage.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, today the Senate is voting on whether to
take a few more inches off the little guy. I say that because we can
tell what this debate is all about by looking at the morning newspaper.
All over those newspapers we saw ads taken out by some of the biggest
businesses in the country. It is pretty easy to see why. It is because
with this vote for the so-called Marketplace Fairness Act, what we have
is big businesses being given the ability to force--force, mind you--
new regulations onto the startups, onto the small businesses. That is
what this bill has always been about.
The big businesses have physical presence. They already pay taxes.
The people whom we have said we care about, for the last 15 years, are
the startups, the people who are just trying to get off the ground, who
have the dream of one day being big. With this proposal that we will
vote on in an hour, I fear what we are going to do is crush a lot of
those startups, a lot of those small businesses, because not only will
they have new regulations,
[[Page S3074]]
those small businesses will have new legal regimes, new audits by out-
of-State regulators, new legislators, new Governors, new court systems,
new accountants, new software, new consultants, and new lawyers. What I
hope we will do is ensure, as this process goes forward, that we truly
think through the implications of what is being done because on every
count it is coercive and discriminatory in nature. It, in fact, gives a
leg up to foreign retailers. It, in effect, repudiates a lot of what we
have done over the last 15 years to build a sensible policy that will
ensure what I call prosperity for both bricks and clicks.
I am sure that is what the Presiding Officer of the Senate wants. It
is what we want in Oregon. We want our brick-and-mortar stores to
prosper. We want our online stores to prosper. What this bill does is
it precipitously overturns the law of the land, the law of the land
upheld by the Supreme Court. It would, in unprecedented fashion,
stipulate that State and local governments have taxing authorities over
businesses that are located thousands and thousands of miles away.
The sponsors are quick to point out that the Court allowed that
Congress could enact this sort of extraterritorial taxation. But as the
Senate has seen again and again, just because government can doesn't
mean government should.
We are going to continue this debate. It will not be done today. One
of the central discussion points in this debate going forward will be
the damage this bill, in its present form, does to the idea of State
sovereignty. Proponents of the bill say the measure is about promoting
States rights, but the reality is it is a coercive affront to State
sovereignty. If any State does not wish to subject their business to
out-of-State government tax collectors, the MFA tells them in effect:
Get lost. The MFA enables the State of Indiana or the State of South
Dakota to require online businesses located in New Hampshire to collect
sales taxes on their behalf. I will repeat that. This so-called
Marketplace Fairness Act could require New Hampshire, a State that does
not have a sales tax--require New Hampshire businesses to collect sales
taxes for goods and services provided to consumers in Indiana and South
Dakota and send that money to those States. It enables California and
New York to collect taxes from businesses located in Florida or Texas.
Finally, since I know we are in morning business, I think this steers
the Internet toward a dangerous path. It would, in effect, endorse the
notion that Internet entities should be required to enforce laws
outside their home jurisdiction. Foreign countries have long pressed
that notion. Foreign countries have specifically pushed that notion,
that the Internet ought to cede to their control. As it is already,
many countries are seeking to put the United Nations in charge of the
Internet's regulator-in-chief, and essentially, if we look at the
philosophical foundation of this proposal, it endorses that world view.
The Senate is being asked to consider schemes to allow States and
localities to essentially nationalize their taxes, but tomorrow the
Senate may be asked to consider similar schemes to enforce law and
regulations. I will tell you what truly concerns me about this is it
could be laws and regulations about content and other issues that are
important to the powerful and well-connected. Make no mistake about it,
that is who is pushing this bill today.
Open those morning newspapers and it was not the little guy, the
person who does not have PACs and big political committees who was
buying ads in the morning newspapers, it was the powerful and the well-
connected. It seems to me the last thing this body should do is
jeopardize the democratizing power of the Internet and technology
through legislation such as this.
I believe the substance of this bill is deeply flawed. I know there
have been efforts to improve it.
I see my colleague from Illinois. He wanted to take the bill I wrote
years ago, the Internet tax freedom legislation, along with colleagues
from both sides of the aisle, and he wanted to put it into this bill.
The Internet Tax Freedom Act runs contrary to this bill because this
bill allows discrimination.
It specifically allows online retailers to do things that would not
be required for offline retailers. The offline retailer doesn't have to
chase somebody across the country and try to figure out where they are
going to consume a particular product. We ask for things from online
retailers that we do not ask from offline retailers.
I understand why the Senator from Illinois wanted to take a bill that
has been a big success for both bricks-and-clicks retailers and put it
into this bill. In effect, I compared it to trying to dump sugar into a
very bitter cup of coffee.
We cannot get healthy with this bill in its present form. It is a
deeply flawed piece of legislation. This debate is going to continue.
I urge colleagues to vote no on the bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. I thank my friend and colleague from Oregon for coming to
the floor and stating his position on the bill. For those who follow
the Senate, we are about to see something that is historic, precedent
setting, and nothing short of remarkable in an hour and a half. The
Senate is actually going to vote on a bill.
Those who are watching this program on C-SPAN or from galleries may
actually see 100 Senators--or close to that number--come to the floor,
vote, and perhaps there will be a bipartisan majority supporting the
bill. At least that is my hope.
I have joined with Senator Enzi, a Republican from Wyoming; Senator
Alexander, a Republican from Tennessee; and Senator Heitkamp, a
Democrat from North Dakota, in a bipartisan effort to solve a problem.
It was a problem not out of our creation, it was a problem that came
about because commerce has changed in the United States.
Twenty years ago the State of North Dakota went to the Supreme Court
and said: We want to collect sales tax from remote sellers. Twenty
years ago these were mainly catalog sales. It would give a company that
made a catalog sale in the State of North Dakota the ability to collect
sales tax.
Nearly 21 years ago the Supreme Court--across the street--said in the
Quill decision: We are not going to rule this from the Court. It is up
to Congress to write the law.
Well, in lightning-fast speed--the kind of reaction we have come to
expect--21 years later, here we are actually debating the bill. We may
actually vote on it in an hour and a half.
What is it all about? It is about the way commerce has changed in
America. Let's think about it. When did anyone here first make an
Internet purchase? Virtually all of us have. I remember doing it and
saying: I wonder how this is going to work. They are going to take it
off my credit card, I am going to receive this in the mail or UPS will
deliver this book from Amazon. Well, it worked out pretty nicely, so I
did it again. I bought clothes from Lands End, along with some other
things, and pretty soon I am an Internet purchaser.
Well, it turns out there was something going on I didn't know about.
In my State of Illinois--and 45 other States--I have a legal obligation
to pay sales tax on what I purchase on the Internet. Most people don't
know it. It is on the State income tax form, and at the end of the year
in Illinois--and many other States--each taxpayer is asked to itemize
how much they owe for sales tax to, for instance, the State of Illinois
for purchases that were made on the Internet.
A year ago my bookkeeper brought it to my attention and said:
Senator, do you want to pay this? I said: I think I should. I started
making calculations of what it was. It was my best estimate, and I paid
it. It turns out only 5 percent--1 in 20 taxpayers in Illinois--make
that payment.
Now repeat that story for 45 States and we will find that so many
residents of States--whether it is Maine, Illinois, or California--may
have a legal obligation to pay sales tax on their Internet purchases,
but they don't do it.
As a result, less money is going into the States, the counties, and
the localities that have the sales tax revenue coming their way, but
something else has happened that is very significant. The competition
of the Internet retailers is a disadvantage.
Unabridged Bookstore is on Broadway in the city of Chicago. It is
around
[[Page S3075]]
the corner from where my wife and I reside in Chicago. Unabridged is a
great bookstore, and I love bookstores. I make a point of going in
there. I went in there last Friday, bought a couple of books, and paid
my sales tax to the State of Illinois.
As I mentioned earlier, I also buy books on Amazon. Sometimes they
collect sales tax and sometimes they don't. It depends on whether the
actual seller of the book is a store in Illinois, for example.
So what is the difference? Well, the difference is about 8 or 9
percent on what a purchaser pays for a book. When I bought the book at
the store on Broadway--where they are collecting the sales tax as they
are required by law, where they pay property tax as they are required
by law sustaining the great city of Chicago and all of its services--I
paid more than I might have on the Internet.
Here is what this bill says: States can now require the Internet
retailers to collect the sales tax at the point of purchase and to
remit those proceeds back to the States. So, for example, if Amazon,
which supports this bill, sells a book to me in Illinois, they can
collect the sales tax and send it to Springfield, the Illinois
Department of Revenue. It is just that simple.
As far as the way they collect it, this bill requires that the
Internet retailers be given the software they need so when I put in my
address either in Chicago or Springfield--I have two places in
Illinois--the address is going to identify how much tax is owed. It is
not as dramatic and complicated as some on the Senate floor have
suggested. In fact, it is done every single day.
What if we don't do it? What we are going to find is that stores that
sell books, running shoes, bicycles, and appliances are at a distinct
disadvantage. They become showrooms, and they tell a story.
This is a Lacrosse store, and they are going out of business. They
sold sporting goods and soccer gear in the suburbs of Chicago. They
could not keep up with it anymore because people were coming in and
they were showrooming. Potential customers would come into the store
and say: I am looking for running shoes, and I cannot decide if it is
Nike or Adidas. Can you bring out a few boxes? How about different
colors? Let me try a different size. OK. This is perfect. Let me write
this down.
Everyone knows what happened next. They walked out of the store,
ordered it on the Internet, and paid no sales tax. That is what this
store, and many like them, are competing against. We are trying to
solve this once and for all, and we have done it in a way I think is
fair.
We took a bill that was 80 pages long and turned it into 11 pages so
it is simple to follow. We made it easy for the retailers in terms of
the software they need to make this collection, and now across the
United States there will be a standard which will help a lot of
retailers. Sure, it is going to help the biggest ones. I will not make
any bones about that. Of course it will. It will help the small ones
too such as the Unabridged Bookstore and businesses such as the
Lacrosse sporting goods store. They will be helped in the process too.
They create jobs. These are entrepreneurs which sustain our
communities.
When it comes to things we need in our neighborhood or town, we go to
the small stores and ask if they will buy an ad in the church program
or support the local baseball team. They are citizens and residents of
the community. They are part of the community. This bill is trying to
make sure they have a fair and level playing field when it comes to
competing. That is what this is all about.
Some may wonder why we have such opposition. The Senator who spoke
before me is from the State of Oregon. Oregon is one of five States in
the Nation with no State sales tax. For the record, they are Alaska,
Oregon, Montana, New Hampshire, and Delaware. Of those five States,
four of those States--all eight of those Senators--are actively
opposing this bill.
What does it come down to? If this bill passes, will the people of
Oregon, who currently have no sales tax, have to collect sales tax from
the residents of Oregon? No. Not one penny of sales tax will be imposed
on any State where they currently don't have a sales tax. The residents
of Oregon will not have to pay sales tax at the counter or over the
Internet. It will not apply.
However, the three or four--and there are only three or four
companies--Internet retailers in California that want to sell in
California, Washington, Maine, and Illinois will be collecting sales
tax based on their sales in our States only. That is fair. It doesn't
change an Oregonian's sales tax responsibility at all. So for three or
four retailers, the argument is being made: Don't change the law.
Just how many Internet retailers are we talking about? We put an
exemption in this bill and said: If you had less than $1 million in
Internet sales last year, you don't have to collect sales tax this
year. What does that $1 million mean? Well, if we set that number at
$150,000 instead of $1 million, we would have exempted 99 percent of
all the Internet retailers.
What it comes down to is this bill will affect the big boys, such as
Amazon and eBay--the big ones. They can certainly--and already do in
many instances--collect the sales tax. It does not affect the small
Internet retailers, particularly in States that are complaining the
most about the passage of this legislation.
I think this is an important measure in terms of leveling the playing
field for retailers across America, and it is long overdue. It is
bipartisan, and it has the support of the White House. It has the
support of the retail community. Stores large and small all across
America support this legislation. It has the support of virtually every
level of government beyond the Federal level.
All the Governors and mayors in all the different localities--
virtually all of them--support it. The labor union supports it as well
because money coming back into these States and communities will be
used for the good of the people who live there. I don't know about many
States, but in my State they are struggling in terms of coming up with
enough revenue. This bill will help provide some of the revenue my
State needs to deal with some of these problems.
I would like to mention one other issue that was brought up Friday
morning by the Wall Street Journal. The Wall Street Journal talked
about the number of audits an Internet retailer might face if this bill
passes. They suggested--I think improperly in their editorial--that it
could be an onslaught of audits. We made it clear--and Senator Enzi
said on the floor, as I have--that we are talking about one centralized
audit for each State.
It would not be a matter of harassment. At most there would be some
45 audits which these Internet retailers would face. I hope that can be
made extremely clear.
I have listened to a lot of speeches on the floor against this
measure, and virtually every single one of them has been from a State
with no sales tax. My final plea is to the people of Oregon, Montana,
New Hampshire, Delaware, and Alaska. If this bill passes, they will not
have to pay any new sales tax. This bill creates no new Federal tax and
does not create new sales tax anywhere in the United States. It only
has a method of collection for those sales taxes that already exist in
the States across the Nation.
I hope we can get a good, strong bipartisan vote so we can send it to
the House, and I hope they will take it up. It is a timely and
important measure. After 21 years I think we have thought it over
enough. It is time to act and do something to resolve the issue. This
will help small businesses and local governments across America where
this revenue will play an important part in their future.
I believe all the speeches I have heard about the value of small
business, the value of entrepreneurship, and how important it is to
create jobs at the local level. This will be a test vote this
afternoon. In fact, we will have a couple of votes. First, there will
be the managers' amendment. It is generally an amendment where we look
closely and carefully at every single sentence in the bill. We made
some slight variations. There were no major changes in the substance of
the bill that was originally introduced. However, it is a cleanup
amendment, which shows that even with our best efforts, we can improve,
and I think that is important. Second, there will be the vote on final
passage on the bill.
[[Page S3076]]
The last point I want to make is one I expect to hear from my friend
from Oregon, Senator Wyden--and he is my friend. He feels passionately
about the Internet, and he should. The Internet has changed America. It
has changed the world. It has changed the way we live, the way we
research, the way we read books, the way we shop, and so many other
things.
Senator Wyden talks about the virtual issue of the sanctity of the
Internet. I could not agree with him more. We have to make sure we
preserve some very basic things about the Internet. One of the things
we need to preserve is access to the Internet. What if we had to pay a
tax every time we went online? That would be awful. So we had an
amendment from Senator Pryor of Arkansas and Senator Blunt from
Missouri which said access to the Internet cannot be taxed. It is
called the Internet Freedom Act.
I said put it on here. I agree with that. Let's make it clear that
nothing we do here will in any way inhibit a person's access to the
Internet.
It is a bill which, frankly, Senator Wyden had introduced, but
because of the nature of this political debate, he objected to our
putting an amendment on the bill. I am sure he still supports that bill
in principle. This was an effort by us to make it clear that we want to
protect access to the Internet and in so doing make sure we also
protect something that is fundamental in this country: an opportunity
for real competition and a level playing field for all manner of
business, large and small, across America.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALEXANDER. Mr. President, we have an opportunity to vote today on
an important piece of States rights legislation--at least that is the
way I look at it as a former Governor of Tennessee.
Here is what the legislation does. It is called the Marketplace
Fairness Act. There are many reasons to support it, but the reason I
like it is because it gives Governors and legislators the opportunity
to decide for themselves whether they can require out-of-State sellers
to do the same thing in-state sellers are required to do; that is, to
collect the sales tax already owed.
Let me say that again. This legislation is States rights legislation.
It allows Governors and legislators in Maine or Tennessee or wherever--
Illinois--to decide for themselves whether they want to require out-of-
State sellers to do the same thing in-state sellers already do, which
is to collect the sales tax that is already owed when something is
sold. That is it.
Before I went back to Tennessee, some people here were saying: We
don't trust the States to make this decision. I think I know the answer
to that from Tennesseans. I have spent the last week going from one end
of our State to the other. Everywhere I have gone, I have asked a
question. I said: There are some people in Washington who said they
trust Washington to make a decision more than they trust Governor
Haslam and Speaker Harwell, Lieutenant Governor Ramsey, and the
Tennessee Legislature to decide what to do about taxes.
The last time I checked, Tennessee had an AAA bond rating, no State
road debt, one of the lowest tax rates in the country, and was named
the second freest State in the country. And the last time I checked,
Washington, DC, was running up $1 trillion of debt and more every year.
Nobody in Tennessee trusts Washington more than the Governor and State
legislature to decide what to do about taxes, particularly when it
comes to whether we are collecting a tax that is already owed.
This is such an obvious piece of legislation that many of the
opponents have resorted to interesting arguments, let's say, in
opposition to it.
It has been said that the bill should have gone through committee.
Well, it went to committee, but the chairman--a very respected Member
of this body--doesn't like the bill, so he didn't report it to the
floor. So that is why it didn't get out of committee.
They have said it should have more amendments. All of us,
particularly on our side of the aisle--we are in the minority--would
like to have as many amendments as we can. But there is one reason this
bill didn't have amendments, and that is because opponents to the bill
objected to every single amendment, every single one, even amendments
they support. Senator Pryor and Senator Blunt offered a 10-year
extension of the moratorium on Internet access taxes, and the Senator
from Oregon objected to that even though he wrote the original act.
Some have suggested that what we are talking about is a tax on the
Internet, but every Senator knows there is a law against a tax on the
Internet.
Some have said: Well, it is a new tax. But of course it is not. It is
an existing tax. One of my colleagues over here said that the only
thing he hates worse than a tax is somebody who doesn't pay a tax that
is owed. This is a tax that everybody owes that only some people pay.
What we are trying to say to the Governor of Maine or to the Governor
of Tennessee or to the Governor of Illinois is this: You can decide for
yourselves, without playing ``Mother May I'' to Washington, DC, whether
a State wants to treat some taxpayers one way and some another way,
some businesses one way and some businesses another way.
Then there are some who say it is too complicated. Well, this is how
complicated it is. If I order ingredients to make ice cream over the
Internet from Williams-Sonoma, I put in my name, my address, and my ZIP
Code, and the software figures out the sales tax, collects it, and
sends it to the State of Tennessee, how hard is that?
I guess the complete answer to that is that a majority of Internet
sales today collect the sales tax that is owed. If it is so hard, how
are they doing that? Let me say that again. A majority of the retailers
that sell over the Internet today collect the sales tax when it is owed
using the software that is as simple as looking up the weather on a
person's computer. I look up the weather in Maryville, TN. I type in my
ZIP Code, and I type in ``weather,'' and it tells me the weather. That
is about how easy this is. A majority of the retailers that sell over
the Internet today collect the sales tax when they make the sale, so it
can't be not only impossible to do, but it is not hard to do.
Then there are some who say conservatives aren't for this. One of the
leading proponents of this legislation is the chairman of the American
Conservative Union, Al Cardenas. He sent out an e-mail last week, and
he sent out another one today.
Dear Senator: As you continue work next week on the
Marketplace Fairness Act, I would like to call your attention
to what conservatives are saying about this issue. They
recognize as I do that it is not the role of government to
pick winners and losers in the marketplace by requiring brick
and mortar stores to charge a sales tax while exempting
Internet sales.
Sincerely, Al Cardenas, Chairman, American Conservative
Union.
He included in his e-mail--I received this e-mail--the comments of
Charles Krauthammer, a conservative if there ever was one.
The real issue here is the fairness argument--that if
you're an old-fashioned store, you have to have your
customers and you pay the sales tax and online you don't . .
. So I think you want to have something that will level the
playing field. You can do it one of two ways. You abolish all
sales tax for real stores and nobody pays. Or you get the
Internet people to pay the sales tax as well. I think the
second one is the only way to do it, obviously.
Representative Paul Ryan--he was home this past week too. He was in
Janesville, WI. He is a pretty good conservative, last time I checked.
I don't go around making a list of who is a good conservative and who
is a bad one. I just think most people in America think of Paul Ryan as
a conservative, just as the chairman of the American Conservation Union
does.
Representative Paul Ryan:
To me, I think the concept is right . . . It's only fair
that the local brick-and-mortar retailer be treated the same
as the big-box online sales company out-of-State.
Lest one think the chairman of the American Conservative Union and
Charles Krauthammer and Paul Ryan are all on another planet somewhere,
[[Page S3077]]
here are a few other conservatives who agree with him: William F.
Buckley before he died wrote extensively about this; Republican
Governors Bob McDonnell, Chris Christie, Robert Bentley, Paul LePage,
Bill Haslam, Butch Otter, Terry Branstad, Rick Snyder, Mike Pence, Tom
Corbett, and Dennis Daugaard of South Dakota.
This is common sense. This is fairness. This is States rights.
For the life of me, as a former Governor, I do not understand how
Congress can say to the conservative Republican Governor of Tennessee,
the conservative Lieutenant Governor of Tennessee, to the conservative
supermajority Republican legislature: You have to play ``Mother May I''
with Washington, DC. We don't trust you to make decisions about your
own tax policy. We think Washington does a better job.
That is laughable. That is just laughable.
What we are doing with this bill--and I will conclude with this--is
very simple. It is two words: States rights. It allows our State of
Tennessee, our Governor and legislature, to make a decision: Will they
decide to require out-of-State sellers to do the very same thing they
require in-state sellers to do; that is, collect the sales tax when
they sell an item and remit it to the State government? It is a tax
that is already owed. It is not a tax on the Internet. It is a tax some
people are paying and other people aren't even though they owe it. It
discriminates against mom and pop small businesses.
This bill only applies to large retailers--those that sell more than
$1 million in remote sales each year.
To the charge that it is too complicated, how could it be too
complicated if a majority of Internet sales being made today already
collect the sales tax?
All we are saying is that the Governor and the legislature may wish
to say to all taxpayers: If you owe the tax, you are going to need to
pay it, and if you pay it, we can lower the tax rate for everybody in
this State.
I thank Senator Durbin and Senator Enzi for their leadership and
bipartisan support. I regret that we didn't have more amendments, but
the opponents used as their tactic to try to kill the bill--which I
hope won't be successful--their right to object to every amendment. We
can't do much about that.
So after the bill passes, which I hope it does tonight, the House
will consider it, and I am sure they will come up with their version of
the bill, and we can go to conference and we can pass the Marketplace
Fairness Act, a States rights bill that, in my view, is exactly what
conservatives hope would happen.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
____________________