Some Arkansas legislators are still evidently not convinced that Arkansans were serious in November when we sent a resounding message to stop raising taxes and begin to reign in spending.
Today the Arkansas Senate passed the "Internet Tax Bill", SB 738, by a vote of 26-7-2. "Yes" votes would include all 20 Democrats and 6 Republicans.
Many proponents of this bill will tell you it is not a tax increase, which technically is true, BUT the net effect is a tax increase to the consumer on all internet purchases.
According to a letter sent by Grover Norquist, President of Americans for Tax Reform, to Members of the Arkansas State Senate this bill could put Arkansas at risk of legal action, circumvents the law and negatively impacts in-state business, just what we need given the current economic state.
I am wondering why the Attorney General has not stepped in to speak against this particular bill given his consistent concern over the state being sued for other bills. Why just yesterday his office spoke against SB709, which failed to make it through committee, sighting that it might place the state in a situation of litigation.
SB709 would have given transparency to Arkansans when dealing with the implementation of Obamacare here in Arkansas. Read more about yesterday's shenanigans here.
Here is the entire letter sent to Arkansas Senators by Grover Norquist:
I write in strong opposition to establishing an affiliate nexus Internet tax in Arkansas under Senate Bill 738. The bill’s intent is to require out-of-state retailers to collect and remit sales tax on products purchased online by residents. However, the realistic outcome of this legislation will do more to negatively impact in-state businesses than it will to level the playing field.
Current jurisprudence, under the Supreme Court’s ruling in Quill v. North Dakota, requires a business to have a physical presence in a state in order for the state to compel that business to collect sales taxes. SB 738 attempts to circumvent this law and require out-of-state retailers to collect tax by presuming a company has a presence if 1) business is solicited through a third-party affiliate in the state, or 2) it is part of a “controlled group of corporations” with another one based the state.
This bill flies in the face of the Supreme Court’s ruling and could bring a lawsuit to Arkansas at a time when the same tax is already undergoing legal challenge in New York.
Senate Bill 738 could inadvertently punish Arkansas advertisers and other businesses. This tax expands the definition of doing business to include an out-of-state retailer that has an affiliate in Arkansas. If having an affiliate in Arkansas creates a nexus for out-of-state retailers, these retailers will likely terminate advertising or other agreements with Arkansas businesses. This is precisely what has happened when similar legislation passed in other states, such as Rhode Island and North Carolina.
If online retailers sever nexus to avoid the tax change, the state will not raise revenue. In fact, should this bill pass and online retailers sever contracts, 1,800 advertising affiliates in Arkansas will lose business and the state will lose the $9 million in state income tax that these affiliates pay.
There are two potential outcomes. If SB 738 is scored assuming no online retailer severs their in-state ties, the bill will be a tax increase that raises revenue and Americans for Tax Reform considers it a violation of the Taxpayer Protection Pledge. If SB 738 is scored to not raise revenue, it assumes out-of-state retailers will sever their ties with Arkansas businesses, causing them and the state to lose revenue without leveling the playing field between brick-and-mortar and online retailers. This is no contradiction – it simply depends on how economic actors react to the tax change. Regardless, both of these outcomes make for bad tax policy, and the more likely outcome makes the intent of this legislation – leveling the playing field – irrelevant.
For these reasons, the affiliate nexus Internet tax has been rightly rejected in at least 14 other states. We urge you to reject Senate Bill 738. If you have any questions, please contact Kelly William Cobb at (202) 785-0266.
President, Americans for Tax Reform