The New York Times The New York Times Technology November 25, 2002  

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NEW ECONOMY

States Try to Tackle Online Sales Tax

By MATT RICHTEL

NEARLY three dozen states have taken a significant step toward bridging a major revenue gap of the Internet era, in part by agreeing that a decision needs to be made about candy: Is it a food or not?

The candy pact is an element of a larger, hard-fought framework that the states have been constructing in hopes of capturing billions of dollars in sales taxes that are going uncollected on goods sold over the Internet.

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The group of states, after three years of work, adopted their tax policy blueprint two weeks ago at a meeting in Chicago. They hope eventually to win the support of the other states and to persuade Congress to make it the basis for national policy.

These would not be new taxes but, instead, taxes already due. For state treasuries, the problem is that retailers themselves are not required to collect sales tax from purchasers in states where the merchants do not have a physical presence. The responsibility to pay such a tax lies with the buyers — whether individuals or corporations — many of whom never seem to remember to send a check to their home states' tax departments when, for instance, they buy books on Amazon.com.

The problem predates the Internet, of course. States have been struggling for years to wrest sales tax revenue from mail-order purchases. But the rising popularity of Internet retailing is making the issue more urgent for the states.

"There's a dramatic and growing revenue concern for the states from e-commerce," said William F. Fox, a tax specialist and business professor at the University of Tennessee. His research puts the annual sales tax revenue lost through e-commerce at $10 billion, although a Government Accounting Office study in 2000 put it at only about one-third that amount. Mr. Fox says the figure will grow to $25 billion in the next five years.

In the recent agreement, representatives of 31 states settled on a framework that individual state legislatures can use to streamline their tax codes. The idea is to make it fundamentally easier for corporations to collect and pay taxes across state lines and in states where they operate only via the Internet. For the states to start using the system would require the approval of Congress, which has authority over interstate commerce.

The group sees the potential for technology to help solve the Internet taxation problem by making it easier for online businesses and other retailers to automate the collection of sales tax across jurisdictions.

Among the framework's elements would be the requirement that states use common definitions for taxable and tax-exempt items, like food.

In some states, food is exempt from taxation. In some of those same states, candy is included in the definition of food, while in others it is not. Whether candy will be deemed food, for tax purposes, is not yet decided. But the participating states have agreed to agree on the matter.

Then there is the matter of handkerchiefs. Of the 13 states that exempt clothing from the sales tax, 6 consider handkerchiefs to be clothing, 6 do not, and one leaves it up to the individual retailer's discretion. The final framework would take a unified stand on hankies.

Currently, there are some 7,600 different tax jurisdictions across the country, including state, county, municipal and hospital and transit districts. Under the agreement, each participating state would see to it that each tax jurisdiction used the same sales tax rate for all taxable items — so that food and CD's, for example, could not be taxed at different rates.

The complexity of the current patchwork of sales taxes is one reason the Supreme Court has on several occasions upheld the principle that retailers cannot be required to collect taxes for sales within states where they have no physical presence. The court, among other reasons, has argued that requiring such tax collection would place an "undue burden on interstate commerce."

But the Congress has the power to change that.

Continued
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