PIERRE, S.D. — South Dakota’s highest court should urge the U.S. Supreme Court to reverse a 25-year-old decision that hamstrings officials who want to collect sales taxes from out-of-state retailers, the state attorney general argued Tuesday.
Attorney General Marty Jackley requested that the South Dakota Supreme Court rule quickly against the state in a lawsuit against several remote retailers while also advocating that the U.S. Supreme Court take up the case.
The state’s goal is to reverse the 1992 Quill Corp. v. North Dakota decision by the nation’s highest court that blocks states from forcing retailers to collect sales taxes if they lack a physical presence in the state.
“It’s the next stage that’s most important,” Jackley said after the arguments. “This is South Dakota standing up for South Dakota local and small businesses for an even playing field to say that out-of-state corporations should be treated the exact same as an in-state corporation.”
The state filed a lawsuit against several remote retailers in 2016 based on a law passed that year that requires out-of-state sellers who exceed revenue or transaction thresholds to comply with state sales tax laws. A state judge sided with the defendants in March.
In its brief to the South Dakota Supreme Court, the state acknowledges the “unusual” law is contrary to the 1992 decision and asks for a swift loss so the case can be appealed to the nation’s highest court. The brief says the Legislature passed the law in response to an “invitation” from Justice Anthony Kennedy, who wrote in a recent opinion about his desire to re-evaluate the 1992 decision.
The state said in its brief that the U.S. Supreme Court would only be able to decide the case by June 2018 if the state high court rules by about this time. It takes four U.S. Supreme Court justices to vote to hear a case, or grant certiorari.
South Dakota is the farthest along of several states pursuing such a strategy. The outcome could reshape the booming online commerce sector.
States have pushed Congress to address the issue without success, and one estimate put the loss to states — 45 have a sales tax — at roughly $26 billion in 2015. South Dakota estimates it loses about $50 million annually to e-commerce.
Opponents say that smaller retailers would be burdened the most if the decision is overturned. George Isaacson, an attorney for the remote retailers, said that federal lawmakers should resolve the issue.