Skip to main content

tv   South Dakota v. Wayfair Oral Argument  CSPAN  April 23, 2018 4:56am-6:00am EDT

4:56 am
be with a starting at 9:30 a.m. in eastern. >> the supreme court will decide whether states can require internet stores to collect sales taxes. petitioners are challenging in 1992 supreme court decision that says taxes can only be collected by businesses with the physical presence in the state. this is one hour. >> we will hear an argument first this morning on case 17 494, south decatur versus wayfair. >> mr. chief justice, there are two very significant consequences brought about. --st our small businesses on main street are being harmed by the unlevel playing field. out-of-state remote sellers are
4:57 am
given a price advantage. >> is an the problem not will, but the fact that you do not have a mechanism? it is not the merchants paying the taxes. >> we believe we have a right, because we have a statutory scheme in place that is nondiscriminatory. --have about your concerned scheme. i am concerned about the overlying questions. here there are some significant laws.
4:58 am
you are not retroactive but your adversaries point out there are many states who have already made this collection retroactive. we have that question. with questions about what is the contact. decided undero balancing, how much contact is enough to justify placing this obligation on an out-of-town seller. there is going to be a host of questions. what happens when the tax program breaks down as it already has for the states who are using it and merchants can't are track of who they selling it to. you're introducing a whole new set of difficulties to put behind something that has been
4:59 am
in place for 30 years now. . >> how about economic? >> certainly economics. it is a balancing test this court uses for its commerce cause ofd commerce fact. it is able to take a look at the actual -- >> how many sales? you are at 200 thousand i believe. 200,000 i don't remember the monetary amount. what is the minimum? >> in south dakota, it was said at -- >> i know what it is set up. it doesn't answer the question. what is the minimum everywhere else? legs that minimum would be one sale because of you look at complete auto that creates the nexis. >> what are you going to do with the cost you are going to put on
5:00 am
small businesses? >> small businesses are affected the most bike will. it is that small business that is put price disadvantage .ecause of quill >> they are put at a disadvantage not by quill but because there are massive discount sellers not just on the now.net but even in stores i am talking about the added cost of doing business. was a the briefs said it implement -- to >> when you look at the cost associated with collection -- >> does it include editing? does it include integrating? for thenot account
5:01 am
that are inherent. >> one thing to look at is the fact that all of the sellers, at least in the 45 states with sales tax, already have a collection complication and already have in place. those five states as indicated from the briefing, it begins at $12 a month for 30 transactions. i think the important thing to look at when it comes to burden is the physical presence does not address that issue. it does not address that issue because it is shown in a national geographic, you may have a situation where there is a warehouse, there are goods in a warehouse at any particular locality where it will still trigger the sales tax obligation. >> did i understand you to
5:02 am
acknowledge that there would be a constitutional minimum with respect to burdens? in other words, that some businesses -- you could not impose the obligation on some small businesses? certainly that is what it is for, is to determine if there is a constitutional concern, if there is a commerce clause. areas you just mentioned, i don't know that we have recognized a lowest level for things like a physical presence. isn't it one person, one building? that would be another special rule. >> certainly, that is one way to look at it. if you look at physical presence, there are a lot of things that would trigger it. it can be a traveling salesperson that would come to visit in south dakota and not rushmore. whenther thing to look at
5:03 am
it comes to burden is that state gains are being put in place such as in colorado with the notice and recording requirement. those are burdens of equal or perhaps even greater than a simple collection and remittance of a tax. >> if there are two options, let's say option a is eliminate quell and states can do whatever they want with respect to retroactive liability and with respect to the minimum number of sales that are required in the state in order for the sales to be taxed, in order to require them to collect the tax, that is option a. a congressional scheme to deal with all of these problems. if those of the only options, which is preferable? >> option a. congress has had 26 years to address the issue. but quil not congress
5:04 am
that is striking down our state statutes. when somebody says something like that, the congress has not addressed the issue for 25 years, it gives us reason to pause because congress could have addressed the issue and congress chose not to. this is not the kind of issue or you say, well, it probably did not get on congress'radar screen or maybe they were busy doing other things. this is a very prominent issue that i have been aware of and has chosen not to do something. barthat seems to make your higher to surround, isn't it? constitutional interpretation, and one way to look at congress is the microsoft decision. sometimes, the activity of the court will spur congress to act. in this instance, it has not.
5:05 am
we might expect congress to come in. but here, i take it that your point is so right or wrong. if changing conditions have obsolete, why should we say well, we will let congress fix up what turns out to be an obsolete president? >> if that is your answer, is did -- isn't it normal that we treat common law space the same way that we treat statutes? overturncan'st constitutional decisions. i don't really see a difference. what's the difference? still say there is a
5:06 am
difference because this is a constitutional -- >> they were constitutional is not magic. the reason that we are saying we are more willing to overturn a constitutional case is because congress cannot act. but here they can. and therefore, there is no reason for treating it specially. what is the response to that? the reason to treat it special is because we have a situation where congress has had 26 years. >> we have three senators and congress that says congress was about to act. indeed, what stop them from acting was our decision to decide this case. that is their view of it. know orwhether they i know, they have a better view. you are 50 states. if you do not have the power to get congress to do something, i don't know who would. >> congress does not have
5:07 am
incentive in this instance to take action in something that can be perceived as a tax when they don't get the opportunity to use the revenue. >>as you stand now, it seems that both the states and internet retailers have incentive to ask for a congressional solution to this problem. the internet retailers will have to deal with things like the andrado reporting statute -- the states obviously have incentive to require retail to collect the tax. overruled, what incentives to the states have to ask for any kind of congressional legislation? >> certainly if it is overruled the states will have constitutional responsibilities
5:08 am
to follow. is inas happened her e quill, they set the baseline. as nondiscriminatory as it may be such as south dakota's, it is automatically unconstitutional instructive. >> can i ask you the question. you answer them when you wish and if you wish. the reason i am asking is because i read through the braves and i thought absolute -- briefs. and i thought absolutely right. and you cannot both be absolutely right. you have wildly different estimates across revenues and what stakes you are losing or not. they say there are 12 mistakes even in south dakota. that is? question one. they have a list of six or eight
5:09 am
really tough practical decisions , retroactivity, all kinds of things. how do we deal with that? already dealt with one. what is the standard? the government is physical presence. any time or if you want to deal with them, do so. is $100 billion over the next 10 years. use respondent activity. wait there collects in 22 states. .- wayfarer use the gao to show that you can do this. companies do this every day. no longer is a defendant because overnight, they simply switched over.
5:10 am
when it comes to retroactivity, the states don't want to address actively --ur retroactively. that is something that congress could take care of if we overturn quilt. >> absolutely. >> in terms of the economic , it would suggest that this is a problem that has paid in the sense that the bigger findmerce companies themselves with physical presence in all 50 states, they are already covered. theworkarounds that some of states have employed are also bringing more in. if it is a problem that is diminishing rather than expanding, why doesn't that suggest that there is greater significance to the arguments that we should leave quill in place? now 9% of theis
5:11 am
market and rapidly growing. it has been challenging for the states to collect on the e-commerce. expanding, and companies like amazon account for a large part of that. but they are already collecting. that is the problem. it is not that e-commerce is expanding, it is, from your point of view, the problem we have to address is that the coverage, in terms of collecting the taxes, is expanding. expanding,y it is but what remains is that $100 million loss over the next 10 years. -- $100 billion loss. if i could please reserve the remainder of my time. >> thank you, counsel. >> may it please the court, i would like to start by making
5:12 am
two or three points. the wisdom of leaving the matter to congress. the first point i would like to make is that whatever the court decides, whether it overrules or leaves those in place, congress can act. can impose whatever solution that believes is appropriate and if states are given greater latitude to experiment in this area, to devise different schemes that would balance state retailers against the interest of consumers, the state's own interest, if states can experiment, congress will have a wider variety of models to look what aspects of egypt would like to just. -- second thing i would say which aspects of each it would like to choose. --
5:13 am
>> the second thing i would say about quill is that it has come to stand for the proposition ,hat an out-of-state retailer the court used in quill -- it is very clear that quill was not issuing by holding about the role of the internet presence in determining a company's obligation to collect state sales tax. the court summarized the bellus rule.rown -- bellus hess -- by mail or common carrier, that was insufficient. court ismesh court -- the term --
5:14 am
a rough analog might be that, in the past 15 years, this court has sometimes a knowledge that it's prior decisions have used the word jurisdictional in a less than precise manner. the court has sometimes said statutes that we previously characterized as jurisdictional are not really that. they're something else. to be sure, lower courts during y ofinterim were war rejecting the statement, but the obligated toeel go through the steps of deciding whether the steps to eliminate a prior precedent had been established. wrongply said we used the shorthand, we were not wrong as to the substance. >> do you believe that there is a constitutional minimum, so
5:15 am
that even a small business using the internet may have greater andens than amazon therefore they have a constitutional claim under your orton sits impose the burdens on any micro business? i think the correct answer, the answer that is most the president is that there is no constitutional minimum. if you have an out-of-state retailer who is deliberately selling a particular physical good within the state, shipping the good into the state for delivery to the customer and title, that is sufficient basis for subjecting that retailer to the tax collection obligation in the same way that if that single good turned out to be effective, the state of the subject -- i'm sorry, the retailer could be subject to regulatory burdens enforced by the state,
5:16 am
conceivably could be held in court to answer for -- >> is that the very kind of question that congress would be equipped to deal with? certainly, the fact that we do think there is a constitutional minimum does not mean it would not be a good idea, and it wouldn't and are congress's ability to decide the minimum -- >> essentially a reason why we should because the congress? from the perspective, the taurus is just binary. we either have the quill rule or redone. but congress is capable of drafting compromises and trying to figure out how to balance the wide range of interest involved here. the general said, congress has not done that. but again, congress can decide what it wants to drop -- draft a compromise and what it does not. and if they decided that they do, they can craft one in ways that we cannot. >> it would certainly agree that
5:17 am
range ofhas a broader options available to it then does the court, and the ability to devise more nuanced solutions. i don't think with respect to characterize the choice before the court as binary, that is, although it would not be our preferred constitutional rule, it would be open to the court to say physical presence in the form of employees or physical facilities is not a requirement and yet not go as far as we abdicated, mainly -- within the state is sufficient. one thing that the court could says, as it often does, that we will look at the statute before us, we will decide that felte nexus about as in the form of economic , thext than the state court can leave for congress the
5:18 am
question should a lesser length be sufficient? >> the part that i really think is when their side that of pacers inspector which i'm sensitive to. -- a certain specter we have four or five giant retailers in the country. there could be a very small number selling virtually anything. and they sell over the internet, ad the hope of preventing monopoly is small business which finds it easy to enter. you raise entry barriers with they say a lot, and you say a little. and i don't know if it is a little or a lot. lot, there might be ways of putting minimums in that would, in fact, preserve the possibility of competition. newthe possibility of entry, stopping the entry barriers for raising too high. that is something the antitrust issued a testified about.
5:19 am
but they are not going to testify here. and that is the kind of problem that worries me. >> let me say a few things about that. he reports said that something like 80 or 90 of the 100 biggest retailers are paying their state sales tax. it is big companies, but not just before my biggest. the question becomes, how far --n the line you go, or small as a company has become in order for the burden of collecting state sales taxes to be substantial? that theline answer is commerce clause does not entitle a fledgling business the ability to make a profit if the obligation to collect sales taxes in various states pushes it from making a profit to sustaining a loss. that is not a constitutional defect. but the other thing we would say that nobody on the other side is really seriously contending that
5:20 am
a south dakota law in and of itself places burden. indeed, nobody on the other side is contending that if every state did exactly what south dakota has done, that the burdens would be -- >> that is obviously a test case. it was devised to present most reasonable inclination of this scheme. do you have any doubt that states that are hovering on the which maynicipalities be an even worse positions -- have a strong incentive to grab everything they possibly can? courttainly, if the issued a decision that said physical presence is overwritten, and adopted our view of the correct answer that into themake one sail state, you are obligated to collect the sales tax -- i have no doubt that if the court issued a ruling, many states would adopt regimes that are
5:21 am
less hospitable to retailers unless they were stopped from doing that by congress. ispoint is that there various context, clearly in determining whether a state's tax likely to cause duplicative taxation in which the court says, what if everything were to do this with the burdens on andra day commerce -- interstate commerce the exorbitant? did, but the retailers are asking for is something much more than that. toy are asking for the court say that, because of every other state adopted a regime that was a much more onerous variant of does, theirakota's statute must be invalid. there is no basis for holding that. >> duplicative taxation. does the government have a position on the question whether thisactive application of
5:22 am
would be constitutional? >> in our view, it would be constitutional, in part because -- as i was saying earlier -- we issued an urgent holding with respect to internet presence. the court in our view could simply clarify quill rather than overrule it. thate court felt retroactive application of the decision, the collection of back taxes raised morse angel constitutional problems, it could simply -- raise more substantial constitutional problems,-- >> let me ask before you finish, what is the government's position on the prospect of prospective overruling of quill? then we would have no recollection. the court has a few perspective announcement of constitutional rules in the is, the courthat
5:23 am
has determined collectively that the role is to interpret the constitution, not to amend it. ofthe court says in june this year about the dormant commerce clause means it cannot say that up until now, the dormant commerce clause meant something else, and in that sense, prospective thinking is inconsistent with the judicial. however, there are certain circumstances where even though the newly announced constitutional rule as a rule applies retroactively, the availability of particular types on whetheray depend people were justifiably uncertain at the time. >> thank you, counsel. >> mr. isaacson? justice, and it please the court, i would like
5:24 am
to direct my initial responses to some of the questions that justice breyer was asking counsel. he pointed out that there were conflicting numbers regarding what was the amount of lost revenue that states are experiencing. and he said, what should we rely on? the most authoritative, independent, and excessive study is the one done by the general accountability office. the general accountability office determined that the private study that was done by two professors at the university of tennessee, which was issued in 2009 based on 2006 figures and then updated in 2012 based gao 2009 figures -- the indicated that the figures were one third ofrter - the amount of lost revenue. >> that was not a problem.
5:25 am
the problem is that your brief is still -- for example, go to the website which i was two, that they recommend. it seems easy to determine what the sales tax was, even 12 mistakes in a south dakota. moreover, there are 10,000 different ones, and you try to do that and you get it wrong, and it says there is $500 penalty for every mistake which is billions lost. and class action lawyers sue you for paying too much. it is filled with that kind of thing. even if we says that don't have perfect software, we can develop it. and when there is a demand, we will do it. and it will be easy. and you say it will cost thousands and thousands of dollars for a small business, maybe all of their profits eaten up in hiring accountants. and they say that will do it on software.
5:26 am
both are logical. how do i decide who is right? >> part of the problem is that there is no record in this case. in trying to determine even if the matter where there is a special justification or overruling quill, i think the problem you have identified is court that hashe substantial justification. >> the assertion is that asking an out-of-state seller to collect tax on goods shipped in state discriminates against interstate commerce. it i see it, why isn't discriminating, equalizing sellers. if anybody wants to sell in state, everybody is treated to the same tax collection obligations.
5:27 am
all who exploit interstate market are subject to the in-state tax. why isn't that equalizing rather than discriminating? >> the dormant commerce clause takes its principal objective, a single national marketplace that is free and accessible to all participants. that theourt found existence of 2300 different jurisdictions with varying exemptions and taxability items, filing requirements, audits obligations -- it was a burden on interstate commerce. 1992, that went from 2300 to 6000. that figure today is over 12,000 jurisdictions. quill hadn that the
5:28 am
was the notion that a free and open market with -- would be encumbered by the degree of perplexity. that perplexity has only worsen over time. >> i don't think you have pointed just her question, which is brick-and-mortar retailers. there are a lot of re-tylers that comply with a lot of jurisdictions. whyshould we favor -- should this court favor a particular business model that relies on mail-order? i understand in balance tests -- bellis hess, the court was concerned -- that seems antiquated today. if you could address the question, it is the same one i had. maybe you see how that can be helpful. >> a key part of horizontal
5:29 am
federalism in this country -- if there is going to be some standard that determines when the company is subject to the tax jurisdiction of the state using the territorial limits of that state, what i think is most significant in looking at this issue is that most of a large retailers, 19 out of 20 largest internet retailers already do collect tax because the nature of the market as required them to establish a local presence. among the 100 top internet retailers, the collection rate is between 86 and 97%. i accept that, but it is not responsive counsel. you are merely putting out internet retailers are moving toward brick-and-mortar. fine. again, why should this court favor those he don't over those who do? that is the question.
5:30 am
>> the united states has even one sail into a state would require collection. they only have the complaint of jurisdiction or the store is located. >> you may know the answer -- with all of these numbers, one part of the answer to that, in my mind, could help resolve this. a mandolint cost for seller who sells them on the internet to sell them in 50 states? how much does it cost him to enter that market? ?ow much did it cost by the way, how much does it cost amazon voluntarily to comply? questions that i think are -- would help me reach
5:31 am
an answer. if you know them, tell me. nobody asks amazon, what does it cost amazon? what does it cost a mandolin seller? are there different -- i don't know. do you know? do you know what cost amazon? >> i do not know. we cite inow that our brief to the court, indicated that the cost of just implementation and integration of a software system, for your dealing with any of the other issues, costs of the $250,000. the maintenance of a system -- >> it is larger than $12. that figure seems a little misleading. the real question -- and i would love your help on this -- not the comparative difference. after quill, now, states may
5:32 am
toce internet providers provide information that enable them to collect taxes from the taxpayer. isn't no duty at all on the internet supplier versus collecting sales taxes. -- do you have any information as to which is the lesser burden? i wonder what might be more burdensome to colin -- colleagues like yours. >> the colorado regime is much less burdensome. >> do you have any data on that? >> it has only gone into effect this year, the annual reporting has not arrived yet. it does not arrive until next year. and so, there is no empirical evidence.
5:33 am
but the reporting requirements of the colorado law simply requires that a single annual spreadsheet reporting -- all of the purchases made by colorado residents. >> the burden of going after consumers -- in the real world -- it is much more efficient and fundsore likely to yield if you go after the seller then after the individual consumer. >> i think that speaks to the value of a congressional solution. for example, what congress can require is one rate for state. it can require a clearinghouse that can be used for the processing of payments. it can require standard uniform definitions of products so that does not meaning one thing in one jurisdiction and another elsewhere. part of themportant history of this issue -- and
5:34 am
when i think what is represented by the united states and the state of south dakota -- going back to shortly after the quill decision, congress passed the internet freedom act in 1998 which established an advisory commission on electronic commerce, which issued a conference of report in 2000, detailing the items that the states should address in order to warrant federal legislation. e states topon th develop a system within five years. the minority report all upon the states to develop that system within two years. the states did not develop that system. a number of states initiated a project of streamlined sales tax . over two thirds of the states
5:35 am
that populations -- more than two thirds of the national illinois, texas, florida, california. congress had given quite a direction to the states, the kind that should be taken if they are going to obtaining from congress. -- assumingmagine we were hypothetically to accept your position. is there anything we can do to give congress a signal that it should act more permanently in this area? >> i would welcome a decision from this court that would indicate that congress should move forward with consideration and action upon legislation. -- atbe they already have
5:36 am
least, the majority have a decision. somedthing that would be the way it has been for 25 years. very strangeuld be cross to tell congress in austin do something in any particular area. something. do >> i certainly would not advise this court in how it should relate to congress. but i would point out, mr. chief justice, that all of the players involved in this issue are in favor of a federal legislation th industry. e direct marketing. >> you say that congressional action should be taken against the background in which the statement ofe , proventional law
5:37 am
incorrect. you want congress to act against the background in which the court has made an incorrect resolution of law. >> i am certainly not suggesting that congress should be acting to correct this court's decision. court, that this recognized that in the decision, congress had the power and was better suited -- >> the assumption of many of these questions is that quill is incorrect, but that does not make any difference. and i am suggesting that it does make a difference when congress acts, for it to determine what the constitutional rule is as correctly stated by this court. i understand you think quill is correct, but most of these license just assume that quill is incorrect, but what
5:38 am
difference does it make? the standard is that even when the court has ruled incorrectly, sending that the decision -- that is most powerful when congress has the ability to correct an error if the error existed. the united states feels very lightly -- >> if the court is responsible sec and there was a suggestion that there be a test case, why shouldn't the court he bought case law with the current commercial arrangements that have been done in the antitrust area.
5:39 am
why ask congress to overturn our pres te president? -- cedebnt? reason is the main because of the power especially on the issue of reliance. if this court decided to overturn quill, abd i see either an immediate overturning are turning to a congressional solution -- the result would be chaotic. interesting if you take the statement of colorado's only member of the house of ifpresentatives -- she said " the supreme court ruled in
5:40 am
celtic or disfavor, a can become a marketplace freefall, a south dakota small business, for instance, could be forced to comply with 1000 different tax structures nationwide without the tools necessary to do so. that is from a higher official representing. >> don't you think there is enough incentive in the system , entrepreneurs would produce software that would make marketing -- being notion of software a silver bullet i think is a real misapprehension. the actual looking up of the rate for the 12,000 different tax jurisdictions hardly scratches the surface. retailers need to map their products against that software errors. ripe with it is not merely the states plus
5:41 am
the district of columbia that have cell sites, but over 500 -- sales tax. necessary retention for exempt buyers is on exempt uses, a physical process that needs to be done by the retailer. reports byof the difference of the various states -- >> i think what justice ginsburg was suggesting was that all of these functions would be taken over by companies like amazon and ebay and a etsy. there is something a little ironic in saying that the problem with quill is that it benefited all these companies so now we are going to overturn it so that we can by the execs and companies -- but i think this would in fact not fall on individual entrepreneurs.
5:42 am
fees.ad, they would pay >> the problem is that a number of the functions that i described simply cannot be performed by software. if you need to collect resale and other forms of redemption certificates, states require that both the physical papers that you collect. there is no software solution to that. if a state is coming in to audit you, software does not solve that for you in any respect. software can do certain functions, and the functions might improve the entrepreneurial initiative. but they're not going to solve these other issues. and what will happen because of the substantial -- small and midsized companies will be deterred from entering the market. they have a choice. they can either invest in opening a store within the state and for going a national market,
5:43 am
or they can develop a website and sell to a national market. remote sellers -- the small business person inside the state -- >> it is interesting that currently, over 70% of all small businesses have a website and by the end of 2018, it is estimated that 91% of small businesses will have a website. years between small and say retailers and out-of-state direct marketers, their composition is between the large companies who are multichannel merchants increasingly dominating the internet. and one of the effects if you increase the cost of admission is the high-value gentry.
5:44 am
of the inevitable essentials is going to be that small and medium-sized companies is going to be deterred and there will be a greater concentration of buying the largest retailers. i think that is empathetic cult what the commerce clause. the argument of the united states made about some very disturbing notions of what the there will look like -- notion that there is no constitutional minimum if the .ourt overturns quill that any single failure would obligate a company to them comply with the particulars of that jurisdiction's tax. it would really mean that you that is notsmall -- a function that we can assume. >> that would be something you could appeal to congress to fix
5:45 am
because congress does not want to look like it is increasing taxes, but fixing something like that would not in cash in the same group -- encapsulate. >> the absence of any incentive of the states to see a congressional resolution in the event that quill was overruled i think is a major impediment to their sure that congress will come in and fix the problem. as justice sotomayor are pointed out, what happens in the interim? what happens in the one or two or three year time when congress acts -- before congress acts? and companies are presented with the dilemma of collection? a chaotic time preceding congress coming in to address the issue is as daunting as any in terms of what the consequence of overruling quill with the daschle would be.
5:46 am
congress can sometimes act with repetitive -- repetitive if this court were to overturn quill, there is no reason that the states would favor federal legislation. dynamic is one which i think would likely still make commerce rather than encourage congress to act. i do want to make special emphasis on the issue of sizes -- decisive's. has been in place and there has been a clear explanation of what the standard is protector's diction, literally thousands of companies have conformed their conduct to the standard that was
5:47 am
established. concurrence ins the case said that with that kind of reliance present and companies have their economic affairs in that reliance, that deduction -- he also pointed out that is especially so where congress can address the issue. if congress were to address the issue, i think there would be no doubt that it would be purely prospective. that is the only thing congress could probably do is have a prospective law. this court has indicated that a purely prospective rolling is -- ruling.t -- will >> what is the reliance you are talking about other than the retroactivity question? >> companies have made their
5:48 am
investment decisions based upon a business model understanding what the full standard requires. standard -- quill standard. >> you are saying they have made business decisions on the basis of their own erroneous decision when the decision was based on the fact that -- well, taxes are not being paid. comes not just from the fact that they don't have to collect, but from the fact that most people aren't paying it used taxes. >> i think justice kagan's decision in kimball made clear that it is not dependent upon the correctness of the decision being followed. in fact, the decision is correct, it is not necessary. the decision would be standing on its own lives. -- legs.
5:49 am
he has a situation quite different from other cases where the court is unable to claim that there was no reply. he has a situation where you have a whole industry that understands of the rules are. i think justice scalia's term is ,oncurrence in the pro-case these companies have the right to take us in our world. brief i can read to determine what constitutes a small business in america? i don't even have the answer to that. the figures given were based on a small business. his 200 sales per year a minimum or something higher? that is the self law, a minimum of sales, -- south dakota law. i don't know enough to make a judgment that these are actually
5:50 am
the right numbers. start with this administration to find a small business in various categories. certainly a source that you can look at. actions,urn hindrance the average internet transaction of $84. 200 transactions times $84. roughly $70,000. for example, esty has 1.9 a $10n sales to only sales value of some items. the sales cost of complying with the tax laws on $2000 worth of example --es a good
5:51 am
>> if we are going to compare barriers to entry, we have to compare apples to apples. we would not compare it against do you know the difference is there? >> i don't, i don't have that figure. >> there are no further questions. >> thank you, counsel. five minutes are many. >> justice breyer, iou an answer to your third question, and that is what rule would apply? that is that the sky is not falling. with respect to the collection cited concerns with burden, the balancing that type has in place provides those constitutional protections. >> you said earlier one sale is
5:52 am
enough to justify a state in closing the reporting requirements -- are you backing off that>? i think it gives you the nexus. ofre to be a set circumstances to address that in the balancing, but generally speaking, if there is a sale, there is an activity -- >>a nexujs such that the reveune do notte outweigh the compliance costs. that seems sensible until it think of 10,000 cases being brought by 20,000 lawyers to decide jurisdiction by jurisdiction, case-by-case on whether that is met. that was my problem with complete auto.
5:53 am
auto addresses every other state regulation except sales-tax. based upon that, the sky is not falling. i would submit that i don't believe this court has to, but if they are looking for a signal, the signal is to overrule quill, to reset the default so that the default is not doing all the work, it is a situation where it is this court decision and quill that is basically striking down every state statute including mine, no matter how nondiscriminatory, no matter how low the birds are. i live in a streamlined tax state, we pay all those collection rumors and costs. within a business is up $70 per month and part of that. certainly west of the burden, what is happening in colorado and important requirement.
5:54 am
the question came up about no record and the reason there is well niceis because every fact be a physical persons this case -- if you truly want to project of a small sellers, quill does not do that. if a business is placed in a warehouse or a sales incentive goes into a state and it doesn't trigger state taxing, it triggers a realtor and vision, it figures in several hundred or. no, there has been a lot of conversation about retroactive
5:55 am
activity, and i would again go back to the states are not looking to apply this retroactively. 38 state laws are set for party of the appendix. the chief begins addressing this issue are telling you there are significant constitutional -- >> >> why is it that states are doing it? i believe that the other side pointed to one state, connecticut, who is level representative sent a letter asking it to apply respectively from here forward. and i would point out that the one who signed the briefs will be making that decision. what is an issue is not an assessment, it is a collection. be telling a remote seller you don't have to collect and remit this and then three years later he would say that you do and we have now changed
5:56 am
the responsibility to a penalty and interest? that has significant constitutional concerns which is why the states are not doing it and are not likely to do it. i truly believe that if you look at what is issue here, it goes back to what i originally said. small businesses are not being treated fairly. we are not asking remote sellers we are noting already asking our small businesses to do in our state. and that is a tax. -- and remit a tax. >> thank you, the case is submitted. independently community school district, a case about student free space. from des5 students moines, iowa or black arm bending -- armbands to school to protest war.
5:57 am
they challenged the free-speech restrictions and the resulting supreme court decision established that the students keep their first amendment rights on school grounds. our guest to discuss this landmark case are mary beth baker, one of the five students who challenged the district. she was 13 at the time. nurse,wo decades as a she began working as a free-speech advocate for students, touring nationally at the students -- schools and youth centers. the clerk for clarence thomas and 9096. -- 1996. follow us at c-span. we have resources on her website for background on each case. landmark cases companion
5:58 am
book, a link to the national constitution center's interactive constitution, and the landmark cases podcasts at c-span.org. tuesday, the president to thes emmanuel macron white house for in official state visit. i live coverage begins today with the arrival of the french president and his wife at the white house. then, live coverage of president trump >> first state dinner. with guest arrivals and interests -- dinner toastss. live starting tuesday morning on c-span. c-span.org and on the free radio app. announcer: c-span, where history unfolds daily.
5:59 am
in 1970 nine, c-span was created as a public service by america's table -- cable-television companies and today we bring you unfiltered coverage of congress, the white house, supreme court, and public policy events in washington, d.c. and around the country. c-span is brought to you by your cable or satellite provider. ♪ announcer: this week on "q&a," former professional ballplayer and author etan thomas. etan thomas discusses his book "we matter: athletes and activism." ♪ brian: etan thomas, tell us the story of a guy named bill bland and the impact he had on your life.

17 Views

info Stream Only

Uploaded by TV Archive on