Trump’s Solicitor General Seeks to Argue in Digital Tax Dispute

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By Ryan Prete

The U.S. Solicitor General has asked the U.S. Supreme Court to allow the United States to participate in the oral argument in a case that could redefine states’ taxing authority over digital sales.

U.S. Solicitor General Noel Francisco filed a March 19 motion requesting to participate in the April 17 oral arguments for South Dakota v. Wayfair. The case directly challenges the 1992 ruling in Quill Corp. v. North Dakota, which prohibits states from imposing sales tax collection obligations on vendors lacking an in-state physical presence.

The Solicitor General said that South Dakota has agreed “to cede ten minutes of its argument time to the United States.” Under Supreme Court rules, each party is allocated 30 minutes for oral argument.

The Solicitor General noted that although the U.S. doesn’t believe that Quill’s precedent applies to internet retailers, “it agrees with petitioners that, if this Court concludes otherwise, it should overrule those decisions on the ground that they are poorly reasoned and unworkable in the age of modern e-commerce.”

The Solicitor General was one of a dozen parties that filed friend-of-the-court briefs in favor of South Dakota.

The e-commerce retailers in the case—Wayfair, Overstock.com, Inc. and Newegg, Inc.—have until March 28 to file their brief on the merits, and supporters of the companies have until April 4 to file their friend-of-the-court briefs. Practitioners expect a decision by late June.

The case is South Dakota v. Wayfair, Inc. , U.S., No. 17-494, motion for leave to participate in oral argument filed 3/19/18 .

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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