FC: Michael Geist: "It's time to tax purchases made online"

From: Declan McCullagh (declanat_private)
Date: Tue Mar 25 2003 - 07:47:07 PST

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    Date: Mon, 24 Mar 2003 12:01:49 -0500
    To: declanat_private
    From: Michael Geist <mgeistat_private>
    Subject: It's Back to the Future for Internet Taxation
    
    Declan,
    
    Of possible interest to Politech - my latest Law Bytes column in the 
    Toronto Star on the momentum toward Internet taxation and how we've seen 
    this all before.
    
    MG
    
    <http://shorl.com/bikurifrimusto> [Toronto Star]
    
    Fairness says it's time to tax goods sold online
    
    MICHAEL GEIST
    LAW BYTES
    To those following the Internet taxation debate, the story smacks of déjà vu.
    
    In the months following a war, U.S. governments begin to express concern 
    about millions in lost tax revenues stemming from consumer purchases from 
    out-of-state retailers who do not collect local sales taxes.
    
    The governments argue that the tax avoidance is particularly problematic 
    since it creates an unfair playing field that places local businesses at a 
    competitive disadvantage when compared with their counterparts in 
    non-taxing jurisdictions.
    
    In response, the governments pass legislation requiring all sellers to 
    report their monthly out-of-state sales to tax authorities. The new rules 
    are designed to ensure that all sales are subject to local sales taxes.
    
    While many expect precisely this scenario to unfold in 2003, this is 
    actually a story from 1949. That year, the U.S. Congress, alarmed at the 
    losses in tax revenue due to the growing popularity of tobacco sales via 
    mail order, enacted the Jenkins Act.
    
    The much-neglected statute, which remains in effect today, requires tobacco 
    retailers to disclose their out-of-state sales to the relevant taxation 
    authority.
    
    Technology may have changed dramatically since 1949, but the policy choices 
    surrounding sales tax and its collection remain largely the same.
    
    Today, tax authorities throughout the United States and Europe are rapidly 
    abandoning previous policies that rendered the Internet a "duty free zone" 
    in favour of online tax approaches that mirror those found offline.
    
    During the dot-com boom of the late 1990s, Internet taxation was viewed 
    with considerable skepticism. Internet self-regulation was the preferred 
    approach and with it came a hands-off approach to taxation.
    
    Moreover, with e-commerce promotion enshrined as a key policy position, 
    governments were loath to stifle e-commerce growth with the burden of tax 
    collection.
    
    The U.S. government led the way in this regard, enacting the Internet Tax 
    Freedom Act in 1998. The statute prohibited the establishment of new 
    Internet taxes for three years and was subsequently renewed in 2001.
    
    Just as the dot-com boom has turned into a dot-com bust, however, so too 
    has Internet tax policy undergone a significant reversal.
    
    Although many in the U.S. Congress remain supportive of the ITFA, dozens of 
    U.S. states have shifted toward a pro-Internet tax position.
    
    This shift comes as little surprise since unlike the states, the U.S. 
    federal government does not levy a sales tax and thus its revenues are 
    largely unaffected by Internet sales.
    
    In recent weeks, states such as California and Massachusetts, previously 
    strong supporters of a no-tax position due to the importance of the tech 
    sector within their states, have taken a sober second look at their budget 
    deficits and then taken the first steps toward implementing state-based 
    Internet sales taxes.
    
    Moreover, more than 30 states recently reached agreement with several large 
    online retailers, reportedly including Wal-mart and Toys R Us, whereby it 
    was agreed to absolve the retailers from any liability for tax not 
    previously collected on Internet sales, in return for levying sales tax on 
    all future sales.
    
    Tax courts in the U.S. have also shown a willingness to pursue tax claims 
    against online sellers. For example, a California board recently ruled that 
    online retailer Borders.com was required to collect sales tax for its sales 
    to state residents.
    
    The board reasoned that Borders.com was sufficiently tied to the state that 
    it should collect sales tax since it offered customers the right to return 
    their online purchases to its offline stores.
    
    The European Union has been similarly aggressive in pursuing a new Internet 
    tax policy. Commencing on July 1st of this year, the EU will require non-EU 
    companies selling digital products via the Internet into the EU to collect 
    Value Added Tax (VAT) on behalf of EU member countries.
    
    While U.S. interests have argued strongly against the measure, the EU 
    points to simple tax fairness, noting that the current tax-free position 
    enjoyed by non-EU companies places them at a competitive advantage over 
    their European counterparts.
    
    For example, Freeserve, a large U.K. Internet service provider has long 
    argued that it has been placed at a disadvantage relative to AOL, a major 
    competitor, since it is required to collect VAT from its subscribers, while 
    AOL does not.
    
    Lost in the rush toward Internet sales taxation is a Canadian policy that 
    seems stuck in the 1990s. Last year the Canadian tax authorities released 
    guidance on GST collection for e-commerce sales and largely refrained from 
    adopting the more aggressive positions found in Europe and at the U.S. 
    state level.
    
    While no one likes paying additional tax, the move toward equalizing online 
    and offline tax policy is to be welcomed.
    
    First, it affirms longstanding notions of tax fairness that dictate the tax 
    policy should be consistent.
    
    Second, it represents another step toward the continuing maturation of 
    e-commerce.
    
    For e-commerce to be taken seriously as a critical part of the economy, it 
    must offer more than just a better deal on tax.
    ------------------------------------------------------------------------
    Michael Geist is a law professor at the University of Ottawa and technology 
    counsel with the law firm Osler Hoskin & Harcourt LLP. He is online at 
    http://www.lawbytes.ca and http://www.osler.com (mgeistat_private).
    -- 
    **********************************************************************
    Professor Michael A. Geist
    Canada Research Chair in Internet and E-commerce Law
    University of Ottawa Law School, Common Law Section
    Technology Counsel, Osler, Hoskin & Harcourt LLP
    57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
    Tel: 613-562-5800, x3319     Fax: 613-562-5124
    mgeistat_private              http://www.lawbytes.ca
    
    
    
    
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