WASHINGTON — The Supreme Court declined on Monday to hear challenges from Amazon and Overstock to a New York Internet sales tax law.
The Supreme Court justices did not give any reason for declining to hear the cases — Amazon.com v. New York Taxation Department and Overstock.com Inc., v. New York Taxation Department.
By deciding not to grant Amazon’s and Overstock’s petitions, the state law will stand because it was upheld by the Court of Appeals for the State of New York.
The U. S. Supreme Court in 1992 held that a state could not require businesses that lack a physical presence in the state to collect its sales tax.
The New York law, enacted in 2008, requires out-of-state retailers to collect the state’s sales tax if they enter into affiliate marketing agreements with New York residents. Affiliate marketing is a type of advertising in which a third-party agrees to post on its own website an advertising link that directs viewers to an online retailer’s website. The retailer pays the third party when someone visiting the third-party’s website clicks on the retailer’s advertisement and then makes a purchase.
Neither Amazon nor Overstock have facilities in New York, and they challenged the law. The New York Court of Appeals determined that the law satisfies the requirement that retailers have an in-state physical presence because website owners that retailers pay for affiliate marketing have a physical presence in the state.
Some other states have laws similar to New York’s, some do not, and some state laws similar to New York’s have been struck down by courts, said Rachelle Bernstein, vice president and tax council for the National Retail Federation.
State and local government groups, as well as some retailers including Amazon, want federal legislation to be enacted that would allow states to compel out-of-state online retailers to collect sales taxes.
This legislation, known as the Marketplace Fairness Act, would provide standards so that online retailers would know when they have a sales tax burden. And the Marketplace Fairness Act would even the playing field for brick-and-mortar retailers that already collect sales tax, Bernstein said.
“Whether the court took this case or not, there is absolutely still a need for the Marketplace Fairness Act,” Bernstein said.
The Senate passed the Marketplace Fairness Act in the spring. The House version of the bill has stalled, though House Judiciary Committee Chairman Rep. Bob Goodlatte, R-Va., has released principles about what he would like to see in online sales tax legislation.