A Legal Analysis of State Tax Policy for Online Sales: The Recipe from Direct Marketing

ABSTRACT The growth of e-commerce has changed the way people shop. The changing business environment is a strain on state governments due to their inability to collect sales and use tax on most internet-based transactions. While the U.S. Supreme Court, for the first time in almost 30 years, is reviewing a state's ability to collect sales and use tax from out-of-state sellers in South Dakota v. Wayfair, Inc., a potential solution to increase sales and use tax collection may already exist. In 2016, the Tenth Circuit Court of Appeals upheld a Colorado notification law that could provide a blueprint for states to capture tax revenue from online companies and out-of-state retailers. In this paper, we review the constitutional complexities of the taxation of online sales. We also analyze state requirements for informational reporting of sales and use tax and recommend policy to increase potential sales and use tax collection.