Noteworthy developments in the Supreme Court recently, and I don't mean the retirement of Justice Kennedy and the fill-in-the-blank protest from Democrats before President Trump even announced who he was nominating as a replacement. Anyone chosen is going to bring on an apocalypse. It must be incredibly draining to see doomsday every 140 characters tweeted by President Trump.
The more interesting thing out of the Supreme Court was the decision in the case of South Dakota v. Wayfair that overturned the law generated by Quill Corporation v. North Dakota in 1992, which held that it was not within an individual state's power to tax commerce from outside that state unless the seller had some physical presence within the state.
It appears the governments of the two Dakotas have a long-standing beef about sales taxes.
The Supreme Court in Wayfair overturned that decision, determining it was now within the power of the individual states to collect sales tax on goods sold into their state — even though the seller has no physical contact with that state.
The first thing that I noted was that the 5–4 majority decision was written by Justice Anthony "The Swinger" Kennedy, who, as was often the case, cast the deciding vote.
After reading some of his reasoning for the decision, I don't believe I'll shed too many tears as he trudges into history to write his memoirs. Much of the rationalizing seems to have more to do with revenue than legal theory or perhaps more correctly, the legal theory that if someone is making money, a premise by which it can be taxed must be found.
Kennedy wrote that online sellers had "an arbitrary advantage over their competitors to collect state sales taxes" and seemed to write the decision as though sales into a state by themselves created some sort of physical presence.
The argument presented by the plaintiffs mostly revolved around finances and the perceived inability of retailers, which included Walmart, Macy's and Target (who were rooting for this decision), to compete with online merchants.
Some may see this as a victory for the little guy in the fight against online giants but it's not that simple and probably isn't going to turn out to be much of a victory for those folks.
That's because the question remains: What is the basis for the taxation? The state provides no benefit to the online retailer other than being the domicile of the customer. Remember, the transportation of the product is paid for by the delivery company through the taxes on their vehicles, fuel and the wages paid to their drivers.
This money supposedly goes to infrastructure improvements and maintenance and there's no doubt the increase in online sales has added to the business of shipping companies such as UPS, FedEx and the United States Postal Service — adding jobs and money into the state's economy.
What should be of concern to the average person or small business owner was that the enormous online retailers were fine with this decision because they are big enough and rich enough to be able to absorb the cost of compliance in computing and collecting taxes assessed by the states and ultimately, cities and counties.
Small retailers or mom-and-pop shops selling on Ebay or who are part of the more than 40 percent of the third-party sellers on Amazon are going have a lot more trouble absorbing those costs to compute and collect those taxes from across the nation.
Additionally, this invites what some of the major online retailers are working toward anyway — sophisticated shopping portals where buyers can go in and take a look at some goods, put their credit card into the machine and have the product delivered to their doorstep from warehouses and supply chains all over the United States. There is now no reason not to have these types of stores and Amazon is moving in that direction even as we speak.
The advantage for the big sellers is a thinning of competition with the real winner being government.
Especially in Colorado, where cartwheels are being turned at taxing entities at the prospect of being able to collect more money, while doing practically nothing and not having to go to tightfisted taxpayers to get a vote under TABOR – because the taxes are already in place, they just get to impose them on a lot more people.
Rick Wagner is a Grand Junction attorney. Email him at email@example.com. His weekly political talk show airs on KNZZ 1100 AM/92.7 FM on Saturdays at noon.