Halting hiring. Delaying purchases and investment. Pulling out of certain U.S. states altogether. For many online retailers still grappling with a recent Supreme Court ruling overturning decades of tax precedent, this is just a taste of the aftermath. 

In June, the High Court issued a ruling in the case of Wayfair v. South Dakota, allowing states to require online retailers to collect sales tax--even in areas where they don't have a physical presence. It has been a month since the decision, and already many small businesses are considering their options for how to address, among other things, higher tax-compliance costs in a potentially reduced-sales environment.

"The ruling is absolutely hair raising for small businesses," says David Mittelstadt, a veteran tax attorney with law firm Chambliss, Bahner and Stophel based in Chattanooga, Tennessee. "The decision was a victory for large businesses over small, and I believe that if nothing is done--and states become more aggressive [in their tax policies]--you could see mom and pop retailers going out of business," he adds.

Of course, plenty of small businesses--brick-and-mortar shops in particular--cheered the decision, which they say levels the playing field for all businesses that sell goods, whether online or off. With it, the High Court moved to overturn a 1992 ruling--Quill v. North Dakota, in which many small businesses gained a competitive advantage--holding that any seller must have a physical presence in a state in order to be required to collect and remit tax. In other words, if your company didn't have a physical presence in Ohio, you could avoid charging taxes on your Ohio sales.

"This is definitely the right answer given the times, and the way the retail market has shifted towards internet sales," notes Terry Barrett, a senior tax manager with advisory Keiter Accounting in Glen Allen, Virginia. He works with both brick-and-mortar and e-commerce small businesses nationwide.

Drawing Up Plan B

Even so, not everyone is thrilled. "As a small-business owner, the ruling signifies additional risk, uncertainty, cost, and a likely chill on small to mid-size e-commerce business formation, growth, and hiring," says Stephen Culp, the founder and chairman of Smart Furniture. The Chattanooga-based online furniture retailer declined to disclose its annual revenue, though it notes that sales are in the tens of millions, with fewer than 50 full-time employees.

Although Smart Furniture's Culp does not expect his company to be too badly hurt--it already sells in physical locations as well as online--he acknowledges that the compliance costs will have to come from somewhere. In his case, Smart Furniture plans to hit the brakes on hiring. "Almost certainly, the company would have to slow its pace of investment, innovation, and, ultimately, hiring in order to plan for these potential changes," he says.

Accountants further expect--and some are even advising their business clients to consider--moving operations out of states that have aggressive tax policies, such as Texas. "I've definitely heard that some clients are considering pulling out of some states," adds Virginia CPA Barrett. It's a viable option, she continues, "but it has to be part of the growth strategy and should be a well thought out decision."

No Single Standard

It's worth noting that the Supreme Court did not legitimize any one federal standard for the collection or remittance of sales tax, and that could create a compliance headache for entrepreneurs in the meantime. In the June Wayfair decision, it recognized the state of South Dakota's threshold of $100,000 in sales, or a 200 in-state transaction minimum, before which startups should not be required to charge extra. But there are more than 10,000 state jurisdictions that govern sales tax, each of which may have unique requirements for how--and how much--tax online retailers should be collecting.

And while large businesses, such as Amazon or Wayfair, may be able to easily absorb this cost, others would surely struggle to do so. "It's completely conceivable that the compliance costs alone could put people out of business," suggests Jesse Hathaway, a tax analyst with the conservative-leaning think tank Heartland Institute, based in Arlington Heights, Illinois.

"For mom and pops, complying with the state, county, and municipal sales laws could be horrendous," echoes tax attorney Mittelstadt.

Meanwhile, in a recent statement regarding the ruling, Wayfair--which generated nearly $5 billion in sales last year and already collects sales tax in most jurisdictions--insisted the decision would not impact its bottom line: "Wayfair already collects and remits sales tax on approximately 80 percent of our orders in the U.S., a number that continues to grow as we expand our logistics footprint," the CEO said.

The Wayfair ruling could also have wide-ranging consequences for marketplaces such as Amazon and Etsy, where the companies already collect sales tax on their own products, but not on behalf of third-party sellers. This brings up the question of whether marketplaces will now step in to absorb the cost of collecting sales tax on behalf of partner retailers. In some states, notes Barrett, "marketplace facilitator legislation would require the Amazons and the Etsys to collect sales tax on their behalf. In some respects, that would be easier for the smaller sellers," she adds. Still, it's conceivable that marketplaces could refuse to do so in other states--or sell hefty compliance assistance packages that would hurt their sellers, she suggests.

Ultimately, most seem to agree that a sweeping, federal law regarding internet sales tax is necessary to ease the burden on retailers large and small. "This [issue] is crying out for Congressional attention," adds Mittelstadt. And in a statement last month, Etsy CEO Josh Silverman said: "We believe there is now a call to action for Congress to create a simple, fair, federal solution for micro-businesses."

Culp, the Smart Furniture founder, agrees that the lack of clarity is what hurts businesses the most. "I suspect most Americans would agree that both the burden and the benefit of taxes should be shared fairly," he continues. "What freaks online retailers out is less having to pay the taxes, and more having to manage the new burdens of thousands of tax jurisdictions, myriad filings, and compliance at a scale they cannot administer."

Published on: Jul 16, 2018