A Bit More About Ebooks and Interstate Commerce

In a comment to a prior post about a Maryland bill that would require mandatory ebook license be granted to Maryland public libraries, PG opined that the Maryland bill would also have constitutional problems because Maryland was trying to impose mandates on publishers (including indie authors) who had no meaningful contacts with the state other than offering licenses to their ebooks via Amazon or otherwise.

This comment was based upon two well-known US Supreme Court cases titled National Bellas Hess, Inc. v. Department of Revenue of Illinois (decided in 1967) and Quill Corp. v. North Dakota (decided in 1992).

Each of these cases was decided based upon what is usually described as the Commerce Clause of the United States Constitution which provides that the United States Congress shall have power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (Article I, Section 8, Clause 3).

In simplified terms, since neither the Illinois Department of Revenue nor the state of North Dakota were the United States Congress, the two court decisions held that they couldn’t tax a company which was located outside of Illinois or North Dakota when the company’s only connection with the state was that it took orders from Illinois/North Dakota residents and mailed or shipped the merchandise to the in-state customer who had ordered it without having any offices, warehouses, etc., in Illinois or North Dakota.

In short, a state force a seller to collect sales taxes if someone inside the state sold something to someone else in the same state.

As PG mentioned in a comment to his prior post, older lawyers (a term which just barely describes PG) tend to think that the old law is the best law.

Alert visitor Mike Hall commented that he thought later case had changed the rule PG referenced.

Mike’s case is titled South Dakota v. Wayfair, Inc., and was decided in mid-2018, long after PG passed all of his law school tax courses and graduated. No client or any other intelligent being or species has asked PG about interstate taxation or the Commerce Clause since that time.

Frighteningly huge hordes of lawyers pass the bar, practice their art/craft/con for decades, retire, die and appear in a heavenly court to face their maker without being asked a single question about interstate taxation/Commerce Clause topics.

PG quickly pulled up a copy of South Dakota v. Wayfair, Inc. (40 pages of small type) and found a 5-4 majority decision plus a four-judge dissenting opinion plus two separate concurring opinions (for those who are counting, that’s four different opinions from nine judges).

The majority opinion criticized Quill (which was pretty easy to apply in practice – Do you have any offices in a state? Any employees? Any warehouses? Any manufacturing facilities?) with clear-cut, bright-line standards such as:

  • Sellers who engage in a significant quantity of business within a state
  • An activity with a substantial nexus with the taxing state
  • Condemning the physical presence test as “an outdated proxy” for “substantial nexus”
  • Declaring that there are “other methods” of establishing whether a seller has a substantial nexus to the state

Plus, criticizing the old bright-line Quill rule because it imposes “the sort of arbitrary, formalistic distinction that the Court’s modern Commerce Clause precedents disavow.

For “arbitrary, formalistic distinction,” PG might substitute “easy to understand and apply”.

The one bright spot PG perceives in the South Dakota v. Wayfair decision is that it generated a whole lot of business for tax lawyers.

George? Law Guy? Pay attention! I know your clock is running.

Am I doing a significant quantity of business in Tennessee or not? I sold 2,719 Magic Eight-Balls in Tennessee last year and but a thousand were returned because they didn’t work. Is that a substantial nexus or not?

Another guy tried to return 98 Magic Eight-Balls, but I refused to give him a refund because I thought they were working just fine and he said he was going to send them to Shanghai and have somebody make a bunch of knock-offs.

That doesn’t feel like a substantial nexus to me.

Long-time visitors to TPV may detect a bit of skepticism on PG’s part that the new sales-tax-collection standard is an improvement over the old one, but PG admits that might just be because he was a bit embarrassed to have missed the Wayfair case.

Here’s a Link to Wayfair: https://www.supremecourt.gov/opinions/17pdf/17-494_j4el.pdf

7 thoughts on “A Bit More About Ebooks and Interstate Commerce”

  1. I can’t make any particular claim to alertness, I just recalled seeing something mentioned in an article about sales tax and Amazon. And these days, if you can vaguely recall something, Google quickly makes you sound like an expert.

    As it happens, since the lockdown started a year ago I have developed an interest in the operations of SCOTUS. Maybe the esoteric weirdness of what goes on there fits into a pandemic influenced mindset?

    • FWIW, Mike, I have known a handful of former Supreme Court clerks (the law school graduates who do a lot of heavy lifting at the Court) and have read some apparently well-researched books about the Court.

      Based upon this limited information, I’ve developed the sense that the Court is mostly comprised of very bright people who become sheltered and a bit inward-looking as the years of their service pass.

      The closest analogy that comes to mind is the faculty of a college department devoted to the study of a somewhat obscure field.

      One thing that struck me as I looked at the downloaded text of the Wayfair decision (which came from the Court) is that the online version the Court published is formatted identically to the printed version that the Court has published forever. (Lots of other people also publish electronic and physical copies of the Court’s decision.)

      The printed format has been used for a very long time and, even by legal print standards, is quite archaic (All caps for items that most typesetting standards would have selected a bold font for the last thirty years, excruciatingly small body type size, unsophisticated typesetting to create flush-right text, etc.).

      I don’t know if the rather bizarre (for 2021) format of its published opinions is a result of nobody important associated with the Court paying attention to what the Court’s opinions look like or a sort of ignorance of how things are done these days. Or a sense that mere readability is beneath the notice of the Court.

  2. I’ve been researching this topic during the past month while deciding how to set up my own ecommerce site and the only conclusion I can draw is that these laws are an attempt to make lawbreakers out of everyone who attempts to start a business. The overhead involved in tracking the nexus rules for all fifty states is overwhelmingly burdensome for a single proprietor.

    I’d be infuriated if I wasn’t so used to the day-to-day shafting of small businesses.

    • It is one of the reasons why Amazon stopped fighting state tax collection.
      Making it harder for smaller competitors (pretty much everybody) offset their added costs and freed them to set up locations in every state.

      • It is pretty obvious, in retrospect, how well this has worked out for corporations that want to ‘make it easier’ for people to sell things, like Etsy. And now, of course, they control so much of the market that they are free to pursue whatever agenda pleases them, at the expense of shutting out anyone who disagrees.

        • Like, say, refusing to respond to DMCA notices when Etsy “independent proprietors” sell infringing materials, requiring direct contact instead… when a substantial proportion of ETSY “independent proprietors” don’t provide any contact information except their order forms?

          In short, it’s not just about tax collection. It’s about the endless struggle between “I just want to run a business!” and “then run a business!” (And anyone who claims this is by any means new needs to consider that for all the bureaucratic problems we have now, it’s easier and cheaper than under any Guild-like system, historically; or, for that matter, the various approval systems in Asian societies, historically.)

          A large part of the problem is that we, as a society, don’t do a good job of teaching how different activities have implications for others’ rights… or encourage inquiry into those problems. “Free speech” also implicates “right of privacy” and “control of personal publicity,” let alone “reputation;” anyone who claims that there’s an absolutist “solution” that covers all instances has never considered the real world.

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