Rep. Kristi Noem (R-SD) has been pushing to include an online sales tax measure in the forthcoming omnibus. Senate Finance Committee Ranking Member Ron Wyden (D-OR) has accused Republicans of “plotting to sneak a massive Internet tax increase into a completely unrelated federal spending bill.”
Rep. Noem’s bill, the Remote Transactions Parity Act or RTPA (H.R. 2193), would create sales and use tax collection obligations for remote sellers, with special carve outs for small sellers.
The Supreme Court is set to hear a case on taxing remote sellers in South Dakota v. Wayfair. For those who have not been following closely, the Wayfair case would allow the Supreme Court to revisit its 1992 decision in Quill Corp. v. North Dakota. In Quill, the Court held that the states may require retailers to collect use taxes only if it has a physical presence in that state.
Of course, in subsequent decisions, given the changing e-commerce landscape, the Supreme Court has hinted towards a change in opinion. In DMA v. Brohl, Justice Kennedy invited Congress to pass legislation on online sales taxes. Justice Kennedy wrote, “The Internet has caused far-reaching systemic and structural changes in the economy…a business may be present in a State in a meaningful way without that presence being physical in the traditional sense of the word.”
House Speaker Paul Ryan (R-WI) is gauging whether the RTPA has enough support for inclusion in the FY 2018 omnibus. This issue is not a partisan one — support depends on whether a given state levies a sales tax or not. Congressional Democrats have previously supported legislation like the RTPA. However, for members like Wyden, this bill is problematic since Oregon doesn’t have a sales tax.