Florist Urges Supreme Court to Review E-Commerce Tax Rules

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By Chris Marr

An online florist disputing Florida’s sales tax on out-of-state orders continued the chorus urging the U.S. Supreme Court to clarify where a sale is completed in the e-commerce age—and therefore where e-retailers can be taxed ( Am. Bus. USA Corp. v. Fla. Dep’t of Revenue , U.S., No. 16-567, reply brief filed 1/26/17 ).

“This case comes down to how the Court defines the ‘consummation’ of a sale,” attorneys for American Business USA Corp. wrote in a Jan. 26 reply brief, which completes briefing on the petition for the Supreme Court to review the case.

The dispute centers on Florida’s sales tax imposed on orders of flowers and gifts placed through American Business websites, but fulfilled in other states and countries. American Business has its headquarters in Florida, which the state Department of Revenue says gives it nexus to tax its transactions. The Florida Supreme Court upheld the state’s florist tax regime in May.

The company argued that orders filled by out-of-state florists and delivered to out-of-state recipients shouldn’t have a Florida tax liability.

“A sale of goods is consummated in the State where the transfer of goods occurs,” the company’s attorneys wrote, arguing that the principle is consistent with previous Supreme Court rulings.

The case offers an inverse approach to the vocal criticisms of the U.S. Supreme Court’s foundational physical-presence standard for when states may impose sales and use taxes, Quill Corp. v. North Dakota. The 1992 ruling also is under attack in Alabama and other states, which have enacted a wave of new rules and laws to capture more e-commerce tax revenue.

Instead of arguing over a destination-based sales tax where the company lacks physical presence, the Florida florist attorneys are arguing that the Quill standard is unjust when the company’s offices are present, but the customers and the inventory itself are found in other states.

‘Quill’ Implications

In its Jan. 12 response brief, the Florida Department of Revenue argued that the American Business case would be a poor venue for revisiting Quill and contended that if the court did so, it would likely hurt the plaintiff’s case, not help it.

American Business disagreed in its latest brief, saying the department is arguing that the Quill standard gives it nexus to tax the company’s flower orders while simultaneously arguing that Quill isn’t relevant to the case.

The plaintiff’s attorneys wrote that Florida is wrong to rely on Quill for nexus here, as the Quill case related to a “use tax for property enjoyed within North Dakota,” unlike the company’s out-of-state flower orders.

The Florida Supreme Court’s decision “demonstrates the need for this Court to accept review and either clarify or overturn Quill,” attorneys for American Business wrote.

The plaintiff’s legal team is led by Michael D. Sloan of Carlton Fields Jorden Burt P.A. in West Palm Beach, Fla. The Florida DOR is represented by a Florida attorney general’s office team led by Rachel Nordby, deputy solicitor general.

To contact the reporter on this story: Chris Marr in Atlanta at cMarr@bna.com

To contact the editor responsible for this story: Ryan C. Tuck at rtuck@bna.com

For More Information

Text of the reply brief is at http://src.bna.com/lPd.

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