REAL ESTATE July 5, 2018

“Out-Of-State” Sellers Must Now Collect and Pay State Sales Taxes

The U.S. Supreme Court has overturned 26 years of precedent to rule that a state may compel out-of-state, or “remote,” sellers to collect sales tax from consumers who make purchases within the state. See South Dakota v. Wayfair, Inc., No. 17-494, 585 U.S. —, 2018 WL 3058015 (June 21, 2018). The Court ruled that a state may do so even where the seller does not have a “physical presence” in the state, such as employees or tangible assets. Although the decision by its terms applies to any “out-of-state” seller, the ruling is squarely aimed at online retailers, who previously reaped a competitive advantage at the expense of brick-and-mortar businesses by avoiding the costs of complying with state sales tax collection and payment laws, as well as a perceived price advantage over brick-and-mortar businesses.

Unless there is a provision in a tax treaty that exempts citizens of a contracting party from local taxation, sellers that are not based in the United States will also be subject to state sales tax collection and payment obligations on sales made into the United States.