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Amazon tax fever is spreading. In the months since a New York State law took effect that imposes sales taxes on products promoted through Web sites based in the state, other governments have moved to get in on the action, and online retailers aren't happy.
Last year, New York became the first state to pass legislation requiring large Web-based retailers, including Amazon.com (AMZN) and Overstock.com (OSTK), to collect state sales taxes on products promoted through affiliated state-based Web sites. Cash-strapped states across the country are mulling similar legislation and a federal online-sales tax bill that may be introduced in Congress could be signed into law as early as this year.
The growing impetus for taxes on online goods has touched off a flurry of lobbying activity and lawsuits from online retailers hoping to defeat legislation that would take away some of the price advantage they enjoy over brick-and-mortar retailers. ""We'll do everything in our power to assist our sellers so they are not harmed," says Tod Cohen, deputy general counsel and vice-president for government relations at eBay (EBAY). "We want to make sure than small businesses aren't strangled in their cribs."
States and local governments hope sales taxes would help them recoup part of the revenue lost amid a recession that has diminished property values and crimped demand for items sold in stores. In the fourth quarter, state sales tax collections dropped 4%, the steepest decline in 50 years, according to the Nelson A. Rockefeller Institute of Government. Online sales taxes could help states generate at least $52 billion in added revenue over the next six years, according to an Apr. 13 study conducted by three University of Tennessee professors. Requiring virtual stores to collect taxes, even in parts of the country where they don't have physical operations, would also place e-tailers on a more even footing with brick-and-mortar stores such as Wal-Mart (WMT), which collect sales taxes on in-store as well as online purchases.
Companies that sell products over the Internet say the taxes would hamper growth. "The introduction and passage of an Internet tax bill would have adverse effects on e-commerce," George Askew, an analyst at Stifel Nicolaus , wrote in a recent note. After New York's law was passed, Overstock.com says it had to terminate agreements with some 3,400 Web sites that once promoted the closeout retailer in the Empire State.
Overstock ceased operating in New York altogether, says the company's president, Jonathan E. Johnson III. After losing a court battle seeking to repeal the law, Overstock plans to file an appeal in the coming weeks, Johnson says. "These states are signing up for a lawsuit, or for businesses to pull out of their states," he says.
Overstock, along with eBay, is leading the charge against efforts on Capitol Hill that favor online sales taxes. Senator Mike Enzi (R-Wyo.) and Representative Bill Delahunt (D-Mass.) are expected to introduce a bill aimed at overturning Quill vs. North Dakota, a 1992 Supreme Court case that concluded states can only require retailers to collect state taxes in territories where they have offices or stores. If passed, the legislation could require all but the smallest retailers to collect sales taxes in the 23 states that are part of the so-called Streamlined Sales Tax Project, which unifies states that have agreed to simplify their sales tax laws. The number of states in the Project is expected to rise rapidly in the coming months.
Under the bill, which is still being drafted, the states would compensate e-tailers for the cost of collecting taxes, and would agree not to prosecute them for tax errors, removing much of the liability, says Neal Osten, federal affairs counsel at the National Conference of State Legislatures, which is helping to draft the bill. Stifel analysts are skeptical that the bill will pass, though they believe it will make more headway in the current Democratic-controlled Congress. "The effort appears to have a somewhat better chance than in prior Congresses," Blair Levin, managing director at Stifel, wrote in a recent report.
Laws that vary by state would no doubt be a headache for companies that sell products online across the country. In the coming days, Minnesota's House of Representatives is due to consider a bill introduced by Representative Jim Davnie that would levy a sales tax on digital downloads of e-books, music, movies, and even ringtones. The tax would affect a wide range of tech companies, including Microsoft (MSFT) and Apple (AAPL). "There's clear opposition from the IT industry," Davnie says. "Apple, Microsoft have been in my office." Microsoft declined to comment for this story. Apple couldn't immediately be contacted.
Some Internet players oppose pro-tax efforts by local governments too. Priceline.com (PCNL) has about 50 lawsuits pending that involve various cities and counties trying to impose local hotel occupancy taxes on the site's customers, says Darrel Hieber, partner at law firm Skadden, Arps, Slate, Meagher & Flom, which has represented Priceline in such cases since 2004.
While Amazon.com opposes the New York State law, it supports efforts to impose taxes in a uniform manner. "We'd be O.K. with a mandatory collection requirement as long as the states' tax systems were truly simplified and the collection evenhandedly applied," Amazon.com spokeswoman Patricia Smith writes in an e-mail. Many small businesses are also making peace with the notion. "We think it's fair for people to collect sales taxes on the same terms [as brick-and-mortar small businesses]," says Todd McCracken, president of the National Small Business Assn. "There's a need for a comprehensive, national approach to this. There's got to be some final resolution to this because these issues have been festering for years."
Kharif is a senior writer for BusinessWeek.com in Portland, Ore.