A Conversation With Scott Peterson: Wayfair, Kansas Controversy, And The Gig Economy

Scott Peterson — South Dakota’s former sales tax director and the Streamlined Sales Tax Governing Board’s first chief — discusses post-Wayfair issues, the controversy in Kansas, and the gig economy with Tax Notes chief correspondent Amy Hamilton.

Read the podcast transcript below. This post has been edited for length and clarity.

Amy Hamilton: Scott, I’m thrilled you’re here today. Thanks for joining us.

Scott Peterson: Thank you, Amy. It’s a pleasure.

Hamilton: I’d love to check in with you to see how remote sellers are coping one year after Wayfair. This session we saw states enact Wayfair-type economic nexus thresholds at breakneck speed, as well as marketplace facilitator collection laws. What’s surprised you the most, and how are sellers coping?

Peterson: The thing that surprised me the most was actually the speed. You know, I’ve been in the state tax policy business for a long time and never even imagined that this many states could do the same, or almost the same, thing in this limited amount of time. It’s truly remarkable. Model laws — you know, which is the kind of thing that preceded what happened here — model laws take forever to get adopted. This happened just — bam!

Hamilton: What do you think the states got right and wrong about the model white paper language they provided?

Peterson: What the states got right with this concept was timing. They read the Supreme Court correctly. They understood that their response had to be simple.

And the law that South Dakota passed was painfully simple. And it was a state that had a combination of relatively complicated sales tax, and yet had done some things right — so they were complicated, they were kind of normal, a little bit outside the norm on some things, right in the middle on other things. It was a state almost solely dependent on the sales tax. The other states just took advantage of what South Dakota created.

In the beginning there [were] a number of states that said, “South Dakota? Horrible law. What are you trying to do? You’ve got no facts. You’re not building a case. We’ll never be able to appeal this thing because you’ve got no facts.”

Now they’re just crazy happy that it was South Dakota. Two hundred and fifty cities with a sales tax, seven tribal governments with a sales tax, they tax everything. So you’ve got states out there that don’t tax much — they do a couple odd things — and they look at South Dakota and say, “Holy cow! We are simple compared to South Dakota and what they tax.” Then you’ve got states like Kentucky and Michigan that have no local sales tax at all, who have always thought they would be a better state to petition the Supreme Court because they would be simpler. They’re sitting there thinking, “Wow, maybe we could have local sales taxes, because South Dakota is really complicated locally, and they seem to be OK.”

What they got wrong was going into this thing not really sure they were going to win. And because of that, they didn’t prepare for the questions they would get asked. The day the Court issued their opinion, I called my friends at the South Dakota Department of Revenue. Many of the people that worked for me when I was there still work there. And I asked them, “What’s the definition of a transaction?” And they couldn’t answer the question. By then we’d already had like 10 or 11 states that had adopted exactly the same language. None of them could answer the simplest questions about what is really a very simple law. They did that wrong, but you know, that’s — the last 15 months is what they’ve been playing catch-up on.

Hamilton: You’re mostly talking about the South Dakota model law itself. And I was wondering also, then, about the white paper marketplace facilitator language that came into play right before this legislative session.

Peterson: There’s hardly anything the states have done right on that, other than they got the timing right. They have a pretty good idea of the limited group of businesses that they wanted to impact. Almost nothing after that they’ve gotten right.

Some of that’s not their fault. They started off with notice and reporting — use tax reporting gave them a tool. They use the tool in a way that didn’t jibe with what everybody else did. The law Minnesota adopted in 2016 or 2017 was completely different from the law that Washington adopted in 2018. Pennsylvania was a little bit closer to Washington’s than they were to Minnesota’s, but even that was different. So they looked at this same group of sellers, same group of marketplaces, they thought their marketplaces were the five or six that we all talk about. And they said, “OK, we’re going to build a sales tax collection obligation.” But when you do notice and reporting, you give people a choice. So you say to the marketplaces, “You can do use tax notice and reporting if you want to. You don’t have to collect our sales tax.” And so having the choice created just odd outcomes for marketplaces and for the states.

And when Wayfair came around, it gave the states a better way of addressing the issue. You still have all the same issues: They don’t all define marketplaces the same way, they had no idea how many and different the marketplaces are that are out there. They’re all over the board, they all do little different things. There’s a bunch of them that are very industry specific, so they’re very small and they deal with one industry and they do bits and pieces of what all the other marketplaces do.

But they all built these laws based upon Amazon. They all thought the whole point of this project for years has been, “How do we get Amazon to collect?” Then, “How do we get Amazon to collect on all our sales?” Forgetting that the vast majority of marketplaces are nothing like Amazon — they don’t do shipping and handling, they only partially did the money — there is so much of what they do that is so different from themselves and from Amazon that the laws just didn’t work very well for them.

Hamilton: What types of issues do you expect lawmakers to address or maybe revisit during the 2020 state sessions as a result?

Peterson: On the marketplace facilitator laws, we’re going to see another iteration of that come out of either [the National Conference of State Legislatures or the Multistate Tax Commission]. I’m trying to participate in all of those calls and all those initiatives, trying to do the best I can to convince them that they should come out with one version/model law/white paper — call it whatever they want, try to get down to one and not have the department of revenue on one side doing something and the state legislature on the other side doing something entirely different and both of them trying to do the same darn thing, which is frankly the history of sales tax. We’re going to see more of that.

I think we’re going to see a narrowing of the definition [of a marketplace facilitator]. They’ve come to realize that there’s a lot of people that look like marketplaces that are really just big Yellow Pages, so they’re going to try to exclude the yellow-page-like people. They’re picking up the folks that have always been in this business that never thought of themselves as a marketplace. The food delivery people are really quite surprised that when they look at these laws and they say, “Huh, that’s me. I do exactly that. Never collected sales tax anywhere, anywhere, because the people that I’m getting the food from are collecting the sales tax.” It’s also creating, I think, an uncomfortable position for some departments of revenue because they now look at companies that are delivering something that’s taxable in a jurisdiction different from the one that was purchased in, and it’s the purchasing district that’s getting the sales tax and not the delivery district that’s getting the sales tax when the majority of states use destination for both in state and out of state. So DORs are having issues. It’s made them uncomfortable. The food companies are saying, “Shoot, you know, I’m a restaurant. Does that mean I have to start collecting sales tax everywhere that this particular delivery company delivers for me?”

I think they will have the same issue with the lodging marketplaces. I’m guessing that whatever comes out of NCSL and MTC will try to provide some definitional support for the states that don’t want this to apply to food delivery or don’t want this to apply to lodging. Lodgings just don’t mesh in the way that the taxes are imposed and who they’re imposed upon and what they apply to.

Hamilton: Can we talk a minute about Kansas? You were just mentioning the differences between the DOR and legislatures. Kansas is one of the few states that didn’t enact Wayfair-type economic nexus thresholds this year; the governor vetoed bills containing those provisions, but for reasons unrelated to remote sellers.

The Department of Revenue has come out saying that it’s going to go ahead and enforce collection requirements on remote sellers. The state attorney general has come out against that action until the state does enact economic nexus thresholds. I’m very interested in what you have to say about all of this and about the revenue secretary’s statements that he’s not particularly worried about litigation because Kansas at least is a member of Streamlined, even if it hasn’t enacted economic nexus thresholds.

Peterson: I feel a little bit like Justice Alito in the Wayfair case. I read the attorney general’s opinion and I think, “Well, that makes perfect sense.” And I read the Department of Revenue’s response, “Well, that makes perfect sense.” Who do I believe? The challenge is that the whole world is sitting there thinking, “OK, now what do I do? Now I have to hire a lawyer to tell me whether I should believe the attorney general or believe the Department of Revenue? The attorney general’s not going to defend me if the Department of Revenue says I have to collect, so I can’t count on the AG to defend me, I have to count on myself.” And the Department of Revenue is going to have their own lawyers if they’re going to do it.

The challenge, I think for both of them, is they’re both right. When Wisconsin and California and New York and a couple of other states last fall started down the road to adopt regulations or an interpretation to do exactly what Kansas did, all of them found — looking at a statue [that’s] almost exactly like the 1990 Kansas statute — found a way to create a small-seller exception. I think the hard thing for the Kansas Department of Revenue is there’s examples of other departments of revenue with almost exactly the same statute that went down the road that Kansas has gone down and did it differently. Wisconsin and New York and California, those departments of revenue were going to put a small-seller exception in their regulation or their interpretation. Exact same statute.

Hamilton: OK. But that was pre-Wayfair, right?

Peterson: No. So the statute was pre-Wayfair — the statute is 25 years old. The interpretations that California and New York and Wisconsin did were post-Wayfair. They were all last fall. When I looked at what those three states were doing and I look at the statute and I say, “OK, I’m not sure you have the authority in the statute to create a small-seller exception. You’re creating one because you think that’s necessary because the Supreme Court ruled on a state law that had one and they commented that they liked the fact that South Dakota’s law had one.” South Dakota had the same statute. I mean, all these statutes were adopted in the late 1980s and early 1990s when the states were trying to kill Bellas Hess. They’re all alike. And none of them have a small-seller exception in them.

Hamilton: And I believe that Kansas — in fact, that that was an issue, that the Department of Revenue said that Kansas trying to by regulation create a small-seller exception would be unconstitutional under the state constitution. Is that right?

Peterson: Yes. They said that they don’t have the authority as a department to create an exemption.

Now, almost every state in the country, either by regulation or policy, excludes small sellers in some way or another. Every department of revenue has got a policy that says, “We’re not going to make the 13-year-old boy who is mowing lawns for his neighbors get a sales tax license, even though lawn mowing is a taxable service in my state.”

We went through this in South Dakota. South Dakota taxes everything. All services are subject sales tax, including landscaping. The Department of Revenue never issued a sales tax license to a 13-year-old boy who was mowing his neighbor’s yard, even if he was making a fair amount of money doing so. If you hired a professional to do that — someone who put out an ad in the newspaper, had a sign on their truck that was doing it — that person ended up [with a] sales tax license.

So Kansas almost certainly has that same kind of a scenario somewhere in their law. So they have at some point in their life created an exemption.

Hamilton: So with what’s going on in Kansas, what are you advising clients?

Peterson: I have an advantage over most people. We’re not in the business of giving people advice. I’d love to tell you what to do, but I have no idea what you should do. And this is the time you need to call your CPA or your attorney, because if it goes the Department of Revenue’s way and you’re not collecting right now, they might be understanding for a month or two months or maybe even six months, but a year from now they’re not going to be understanding. And if it goes the way the attorney general wants it done and you’ve been collecting sales tax, you know, there’s no harm for you — I mean, use tax was due, so the tax was legally required — but you’ve put yourself in a competitive disadvantage with other people doing exactly the same thing who took a different position.

Hamilton: Can we take a slightly different approach to this? The current executive director of the Streamlined Sales Tax Governing Board recently made public comments saying that what constitutes undue burden is an unsettled issue, and that there’s more than one way to make sure that a state is not imposing undue burdens on small sellers — that nexus thresholds is one way to do it, but joining Streamlined is another. And that Kansas, like many of these states, is adhering to two of the three aspects of the South Dakota law that the Supreme Court noted: Kansas is a member of Streamlined, and it’s not trying to impose its law retroactively. Whereas all these other states are adopting the nexus thresholds, but they are not being a member of Streamlined.

Would [a state] joining Streamlined be more or less helpful to small sellers than putting in place the nexus thresholds?

Peterson: That’s a tough question. The obligation to collect creates or comes with cost. I mean, you can’t just start collecting sales tax without investing something — you have to have resources, you have to have people with knowledge, or you have to have a system in place that does it for you. And if you don’t have to do that at all because you fall below everybody’s small-seller exception, there’s a lot that you don’t have to do. Once you have to start collecting, then there’s a lot that you have to do.

So what the streamlined sales tax provides in the way of certified service provider services is much better than no threshold. But if your threshold is $1 million, there’s an awful lot of people that never have to worry about this at all. It’s kind of a balancing act.

For a long time the states have taken Kansas’s position, just never tried to enforce it. The states have always believed that a burden is a financial thing, and if there’s a way to offset the cost that someone has to incur to collect the sales tax, it doesn’t make any difference how big or small they are; it doesn’t make any difference how complicated they are. The only thing that matters is that you pick the right number. If you cover the cost [of a remote seller’s tax compliance software services], does it really matter how complicated you are or how small they are?

Hamilton: And to be clear, [a state’s] being a member of the Streamlined agreement provides small sellers . . . what are some of the things that help to lift the burdens on compliance for small sellers?

Peterson: Streamlined has uniform definitions which help some people, doesn’t help everybody. If you’re in the digital goods business, the SST’s [SSUTA’s] definitions of digital goods are immensely better for retailers because all you need to know is: Is this a Streamlined state or not?

Candy. Candy is a better example. Odd, odd definition. All you have to know, if you’re in the candy business: Is this a Streamlined state or not? If you know that they are a Streamlined state, you don’t have to — you can stop thinking. You know exactly what you need to do. Where the states have done uniform definitions for things that are sold remotely, there’s value because you only have to know one thing.

The limitations on how local taxes are imposed is a big deal. But it’s less value than some of the other things because, you know, we’d like to advertise the local governments change our sales tax rates all the time. Well, they don’t. It seems like they do at all times because there’s so many of them. So if a tiny fraction of the local governments in this country change your sales tax in a year, it’s a big number. It’s pretty easy to manage that if you have somebody or a system in place.

The real thing that Streamlined does for small sellers is — and even, frankly, even big sellers, sellers of all sizes — is the certified service provider program. That, and the fact that the states pay [to] certify the accuracy is a big deal, which means you get audit liability protection, which is a big deal if you’re a remote seller. If you’re inside the state, you kind of take it for granted that you made a decision to subject yourself to the state’s authority and . . . you have to, you know, go with the flow. But if you’re not a state seller and you know the Supreme Court’s decided that you have an obligation to collect, having that audit liabilities are really big deal. But just the payment itself for the services is the thing that makes it really, really beneficial for small sellers.

Hamilton: That’s so interesting. Why do you think that no new state has joined Streamlined since Wayfair was decided?

Peterson: I don’t think the reasons are any different after Wayfair than they were pre-Wayfair. There are multiple reasons, and every state has their own reason. The primary one is they didn’t see any benefit from it. And that hasn’t changed any. So, I mean, the uniform definitions by their very nature changed what’s taxable. So if a state doesn’t use a Streamlined definition, but they do something with that thing, adopting the Streamlined definition is going to change how that thing is taxed or exempt, which means tax goes up, tax goes down, people are offended — people are, you know, there’s no way to avoid that. There’s an awful lot of states that just never saw the value. You know, our definition is not that different from SST’s [SSUTA’s]. So if you had to do it then and once more, that’s not that big of a deal.

Managing local governments in New Mexico and Arizona and Alaska and Colorado and Texas and Alabama and Louisiana is very complicated. And those state legislators never wanted to take on the fight because the only way in most of those states that it was physically possible to do it, you know, because you could pass a law to make it do it. But it’s just the politics of looking at a mayor and saying, “I’m going to take away your authority because you’re just too cumbersome. You’re too hard on business.”

Hamilton: Sure. I don’t mean to belabor the point, but I just wanted to raise what these other folks are out there saying in that states rushed to adopt the economic nexus thresholds — and they’re not even adopting both of them that South Dakota did, they’re discarding the transactions threshold — but are not joining Streamlined, which was definitely part of what the Supreme Court noted as helping reduce or eliminate undue burden.

Peterson: Which is why the Streamlined states, I think, feel very positive today. But I think there’s a fair risk for a number of these states, which is why I think we saw Colorado and California and New Mexico do away with origin sourcing, go to destination sourcing, because they knew having an obligation on in-state sellers was easier than an obligation on out-of-state sellers, [which] was a good way to get sued. So they’ve kind of been proactive. It’s complicated. For an in-state seller, destination sourcing is more complicated than origin sourcing. Origin sourcing is a horrible tax policy. It just creates so much distortion in the economy. It’s just bad tax policy.

A couple of these other states, I think they just frankly don’t care. Tennessee, I mean, where I live, you know, they used to have a uniform rate. So if you were an out-of-state seller in Tennessee before October 1 of this year, you could charge state rate plus one local rate. They repealed that and they adopted destination sourcing for remote sellers and left in place origin sourcing for in-state sellers. So if you’re an in-state seller, even though you’re making sales all over the state of Tennessee, your obligation is to collect one rate. If you’ve got an out-of-state seller making sales in exactly the same places, you have to collect every rate. Someone is going to get sued over that.

Hamilton: Tennessee relies heavily on the sales tax.

Peterson: They’re crazy heavy on sales tax.

Hamilton: Yeah. Shifting away from this for just a minute now, do you think that the Wayfair decision should have implications for corporate income tax purposes or Public Law 86-272 protection? Are there aspects of even discussing the corporate income tax in relation to Wayfair that you find problematic?

Peterson: I don’t find them problematic. I think it’s a legitimate conversation.

Back in the early days of the streamlined sales tax, there was a thing called the BATSA coalition, the Business Activity Tax Simplification Act coalition. It was a group of businesses that were trying to get Congress to do something: They were basically trying to get Congress to adopt physical presence, to go in and amend Public Law 86-272 and require physical presence before a business would be subject corporate income tax. And so I was part of all those conversations, even though it didn’t impact South Dakota, because the business community wanted to tie the two things together. And you know, in hindsight, I think . . . I don’t have an opinion on [the BATSA coalition’s] position.

They’re right. Now that the states have the authority to do economic nexus for one tax, they’re looking at making that apply to all their taxes. Economic nexus has been in effect in several states for corporate income taxes for a long time, so no change there. West Virginia doesn’t have to do this — West Virginia has had this, you know, for a long time. The states that are doing it today — Texas, Hawaii, Massachusetts, Pennsylvania.

The point of tying the two thresholds together may seem logical if the two types of taxes were the same. You know, a tax you have to collect from your customer. You have an expense you have to incur to get that done, but it’s a tax imposed upon your customer; you know, corporate income tax is a tax imposed upon you. And just because you have economic nexus in the state for corporate income tax purposes doesn’t mean you actually owe corporate income taxes. You still have to have a profit. You still have to be able to portion that profit to that state in a way that, you know, it’s a measurable amount of income that the state could tax. The complexity is much different between the two taxes.

But on the sales tax side, the state knows it’s going to get some tax. On the income tax side, they can do this and may not get any tax out of it. Someone may have economic nexus for corporate income tax purposes and owe no corporate income tax.

Hamilton: Another major topic making headlines right now is the gig economy. And Uber and Lyft are platforms of a different stripe, but when we talk about the gig economy, aren’t we right back to scenarios where there are possibly tens or hundreds of thousands of new entrepreneurs who need to collect tax? What are you seeing in regard to where states are going and the compliance issues emerging here?

Peterson: Not much, frankly. There are very few states that have gone out — because the challenge on the gig economy is, first of all, you have to tax what they’re doing. If the gig that I’m agreeing to do on your platform is construction services and the state doesn’t tax construction services, there’s just nothing there. So you have to get at the gig economy — for somebody who is doing handyman services, you have to have a tax on handyman services, which means it applies to everybody, whether they’re a gig person or a contractor.

And the same thing with Uber and Lyft: It’s one thing to have this conversation if you tax taxi services, but if you’re a state that doesn’t tax taxi services, it’s an odd conversation. I don’t know how you would impose a tax collection obligation on the gig economy when the gig is giving people rides in the car when you don’t also make the same obligation on taxis. So you’re not just impacting new people, you’re impacting an old established business.

And so it’s complicated, and many of the things that are being done on the gig economy are services. This country doesn’t do a very good job of taxing services. Very few states tax them broadly. Very few states. Even the states that tax some services rarely tax personal services. I mean, tanning — I’m shocked at how few times tanning is subject to sales tax. Dry cleaning. I mean, things that if you’re going to create a sales tax on consumption you would just automatically tax, aren’t taxed.

Hamilton: Well, and I’m not even hearing discussion on those issues. What is in the headlines right now, of course, is California and its law reclassifying many gig workers . . . from independent contractors to employees. So I just wonder if you’re seeing — expecting that to be what states focus on, as opposed to the services issue part of it.

Peterson: That’s a challenge that is gonna really impact . . . I grew up in South Dakota. South Dakota does not have an income tax. And so there was never really any incentive from the state’s tax perspective to have somebody classified as an independent contractor or an employee. Actually, it was just the opposite. I mean, because the state taxed so many services, an independent contractor was a better deal for the South Dakota tax structure because an independent contractor doing something that was taxable, which almost always was, we could give them a sales tax license and they could charge sales tax. If you were an employee that doesn’t, that goes away. So you got the states that don’t have an income tax. If they broadly tax services, they’re better off having these people as independent contractors.

On the flip side, you’ve got all these unemployment taxes and all these things that states provide to people that never get paid by gig employees, they only get paid by businesses when they hire people. I can see why California and the states that rely a lot on income taxes would want this to happen, because there’s services being provided by people in the gig economy that aren’t subject to sales tax but would be subject to withholding and all the other things that go along with their income taxes, which, if you can enforce that on the employer, are radically simpler to get collected than if you’re waiting around for an independent contractor to accurately fill in their own personal income tax. So the tax is much, much simpler to collect when you impose it on the employer than when you’re imposing it on the employee.

Other than that, I honestly, I don’t [think] that’s a big issue. If you think about the number of businesses who legitimately have independent contractors — the trucking industry is huge. There’s an awful lot of truckers who are truckers, they’re not employees. “I’ll work for anybody.” You know, “I’ve got a flatbed and a semi, and I’m willing to drive anywhere and haul anything. I’m an independent contractor.” And the state is going to offend that person if they pass a law that says that any, every trucking company’s drivers are our employees when that person says, “Wait a minute, I bought that truck. They didn’t provide me anything other than a load when I wanted to take a load.”

Hamilton: Maybe we could wrap up with some of your thoughts on emerging trends, either globally or in regard to foreign sellers with U.S. customers.

Peterson: A lot of the press these days is talking about France and their digital tax. I mean, I don’t think it’s a sales tax or a value added tax — I think it’s a corporate income tax thing. You know, we have this long history of not taxing other people’s income. If they’re a U.S. company, U.S. gets the tax income; if they’re a French company, France gets to tax that income. That’s what this is going to impact more than, you know, the other taxes we have out there. It’s are [we] going to have to go back and redo all of our tax treaties to make it clear that it’s permissible for France to tax the income of a U.S.-based company, and then vice versa? It’s frustrating because the word “digital” means something different in Europe than it does here. And when we think of digital, we think of downloads. When they think of digital, they think of platforms, they think of a way of making a sale and not the thing that gets sold. In Avalara we have a big European division, and it took us two months, when we were talking about digital, just to define digital.

I expect to see more states start to have a conversation about services. I mean, which surprised me — I didn’t expect to see North Carolina, Rhode Island, Kentucky, and Iowa in the last two years all have a very serious and mostly successful conversation about taxing services. Historically, that was like the fifth rail: You’re a politician, you touch that and you’re gone. When Florida tried it and Michigan tried it, Pennsylvania tried it, Massachusetts tried it, politicians lost their jobs because they tried to tax services. Now we’re starting to see states come back around and say, “OK, well, I’d like to tax all services. But I really wanted to tax these 12, and so I’ll have a conversation over here about taxing all of the services, and then when you object, I’ll get back to my 12 and you’ll say, ‘Oh, that’s OK, we’ll do that.’”

Right now I think states are trying to decide whether or not we’re going to have a recession and if we do, when it’s gonna happen, and what do I as a governor have to have in place to not radically cut services when people need services or raise taxes when I can’t raise taxes. You know, it’s a bad thing to raise taxes in a declining economy. Happens all the time, but it’s not a very positive thing. And it’s a really negative thing to cut services for people who need the services because the economy’s declining.

So we’ll start to see more conversation about taxing services. We’ll start to see states, I think, put more money in their reserve funds — I’ve been pleasantly surprised to see states doing that since the recession ended, that’s a positive thing. The digital conversation, I think, is going to be more of a national-to-national thing; I don’t see it affecting the states much at all. And I expect all the states to modify their Wayfair law and their marketplace law to make it more uniform. There’s value in them having — you know, all the years I did Streamlined, and I preached there’s value to having uniformity. They’re finally getting there’s value to having uniformity. And so, you know, they will have less complaints and less questions that they have to answer or respond to if the law that they have is exactly the same laws as neighboring states, and the same people are affected because they’re affecting each other. I mean, the remote sellers are somebody’s neighbors that — I mean, that merchant through selling on that marketplace or that merchant selling on that website into Kentucky is down the street from the governor in Kansas. We’re talking about each other’s neighbors. I’d like the states to think about that more instead of remote sellers. They’re somebody else’s neighbors.

Hamilton: Well, thank you so much for joining us. It’s been a pleasure.

Peterson: Thank you very much. I enjoyed it.

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