Steve DelBianco, executive director at NetChoice, said there are three scenarios in a “keep Quill” landscape:
- States will claim that Quill doesn’t apply to specific taxes, such as Ohio’s commercial activity tax and Washington’s gross receipts tax. In November 2016, the Ohio Supreme Court declined to extend Quill to the state’s business privilege tax. A petition requesting the high court’s review is expected in April.
- States will continue to enact legislation that aren’t “kill Quill” laws, but are “creative extensions of nexus” to “withstand the physical presence” rule — such as affiliate, click-through and marketplace provider regimes. While those regimes recognize physical presence as the rule, they define physical presence as including a relationship with an in-state entity that has physical presence.
- States will pursue “tattletale reporting tactics,” such as the Colorado and Louisiana laws that mandate non-collecting remote vendors to report consumers’ purchases to the state.
“Goodlatte’s bill confirms the physical presence standard with specificity, and then goes on to open the door to a multistate compact that allows home state enforcement on remote sales,” DelBianco said, adding that “the beauty of the congressional approach, of either Sensenbrenner or Goodlatte, is they in fact would stop the madness of all these state bills.”
DelBianco noted that Amazon’s business model has led to its expansion into more states to provide faster fulfillment. Likewise, competition over customer service and rapid shipping will encourage other retailers to expand their physical footprint, thus triggering collection obligations in more locations.