Sen. Enzi Sees Strong Pressure on Congress If ‘Quill’ Upheld

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By Ryan Prete

Sen. Michael B. Enzi (R-Wyo.) said he believes there will be an unprecedented amount of pressure on Congress if the U.S. Supreme Court maintains a law banning states from levying sales tax collection responsibilities on out-of-state sellers.

“The worst case scenario here is that the court doesn’t overturn Quill,” Enzi said May 2 during the Streamlined Sales Tax Governing Board Inc.'s Semi-Annual meeting in Jackson, Wyo. “But if they don’t, then I think they’ll put pressure on Congress to act, more pressure than Congress has ever seen under this topic.”

Enzi was referring to an upcoming decision in South Dakota v. Wayfair, a long-awaited direct challenge to the 1992 decision in Quill Corp. v. North Dakota.Quill, which states for years have tried to “kill” through lawsuits and legislation, prohibits states from imposing sales tax collection obligations on vendors lacking an in-state physical presence. The case was argued April 17 and practitioners expect a decision by late June.

Enzi is the sponsor of the Marketplace Fairness Act of 2017 (S.976)(MFA), which seeks to overturn Quill.

“I remain confident that the court will advance our cause,” Enzi said. “ Quill hurts everyone.”

Tension on the Hill

Enzi cited support from President Donald Trump to undo Quill, saying that the president wants to name a new precedent the “fair tax.”

State and countrywide infrastructure programs and other local necessities would become a reality if states could harness untapped sales tax revenue from online sales, he said.

Enzi’s MFA measure and other online sales tax bills—including Rep. Kristi Noem’s (R-S.D.) Remote Transactions Parity Act of 2017 (H.R. 2193), which also seeks to reverse Quill—have been referred to the House Judiciary Committee chaired by Robert W. Goodlatte (R-Va.).

Goodlatte is the outgoing chairman of the House Judiciary Committee and a fervent supporter of Quill. Members of the state and local tax community often see him as the biggest hurdle to e-commerce reform.

Goodlatte did allow a July 2017 House Judiciary subcommittee hearing for the No Regulation Without Representation Act of 2017 (H.R. 2887), sponsored by Rep. Jim Sensenbrenner (R-Wis.)—which would, in part, codify Quill’s physical-presence standard.

“The chairman is the one person that can hold up votes, and if the chairman doesn’t want it to get out, then it won’t,” Enzi said. “Of course, this chairman isn’t seeking re-election, and we don’t yet know who will replace him.”

Enzi said that South Dakota v. Wayfair was the fourth case he’d witnessed argued before the high court. He said he’s never correctly guessed a decision.

Narrowing Confidence

Randi Reid, a lobbyist for the SSTGB and partner at Kountoupes Denham Carr & Reid, a Washington-based lobbying firm, said May 2 that legislators on the Hill will “reassess where to go” and how to prioritize legislation related to online sales tax once the high court hands down a decision.

Following Reid, Stephen Kranz, partner and tax attorney at McDermott Will & Emery, and Max Behlke, director of budget and tax for the National Conference of State Legislatures, in part discussed the April 17 oral argument.

Kranz said that prior to the argument, he was 90 percent certain that Quill would be overturned, but that number had been reduced to 50 percent post-argument.

Behlke said he’d bet the court rules in favor of South Dakota, but that he “wouldn’t bet a lot.”

To contact the reporter on this story: Ryan Prete in Washington at rprete@bloombergtax.com

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

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