Amazon Associates beware; you can expect this to happen in any state that passes a so-called “Amazon Tax” law. On Monday, Amazon.com cut ties with Amazon Affiliates in Colorado after that state instituted a Web sales tax.
All of this stems from a 1992 Supreme Court decision, Quill vs. North Dakota, in which the Supreme Court ruled that out-of-state retailers cannot be required to collect sales tax on purchases sent to states where they did not have a physical presence.
The Supreme Court’s reasoning was at least partially based on the fact that, at the time the case was decided in 1992, there were over 6,000 separate sales and use tax jurisdictions in the United States (states, localities, special tax districts, etc.) and to impose a collection obligation on a remote seller would impose a crushing burden that would severely restrict interstate commerce.
It should be noted that even though retailers are not required to collect sales tax on out-of-state purchases, residents are supposed to add a so-called “use tax” into their state tax return for the sales tax. Many either do not know this, or knowing that it would be impossible for the state to tell how much they owe, ignore it.
New York State was the first to coin the “Amazon Tax” term. Three states, New York, North Carolina and Rhode Island, have used Associates, which carry advertising on their sites for retailers like Amazon.com, and defined it as a form of physical presence. In other words, if a NY resident was an Amazon Affiliate, Amazon.com had a physical presence.
In those states, retailers such as Amazon.com and Overstock.com cut ties to their Affiliates. However, Colorado affiliates spoke to the state’s legislature, and warned them of this fact. Because of that, Colorado modified its new sales tax law, such that retailers (effective March 1st) had to start informing state residents that their Internet purchases are subject to state sales tax both at the time of checkout and in an end-of-year summary. Those retailers that do more than $100,000 in annual sales can also be asked to provide data on what individual Colorado residents spend each year.
By changing the law, Colorado removed the “blame,” so to speak, from Colorado Affiliates. Despite this, however, Amazon.com has severed ties with said Affiliates.
Dear Colorado-based Amazon Associate:
We are writing from the Amazon Associates Program to inform you that the Colorado government recently enacted a law to impose sales tax regulations on online retailers. The regulations are burdensome and no other state has similar rules. The new regulations do not require online retailers to collect sales tax. Instead, they are clearly intended to increase the compliance burden to a point where online retailers will be induced to “voluntarily” collect Colorado sales tax — a course we won’t take.
We and many others strongly opposed this legislation, known as HB 10-1193, but it was enacted anyway. Regrettably, as a result of the new law, we have decided to stop advertising through Associates based in Colorado. We plan to continue to sell to Colorado residents, however, and will advertise through other channels, including through Associates based in other states.
There is a right way for Colorado to pursue its revenue goals, but this new law is a wrong way. As we repeatedly communicated to Colorado legislators, including those who sponsored and supported the new law, we are not opposed to collecting sales tax within a constitutionally-permissible system applied even-handedly. The US Supreme Court has defined what would be constitutional, and if Colorado would repeal the current law or follow the constitutional approach to collection, we would welcome the opportunity to reinstate Colorado-based Associates.
You may express your views of Colorado’s new law to members of the General Assembly and to Governor Ritter, who signed the bill.
Your Associates account has been closed as of March 8, 2010, and we will no longer pay advertising fees for customers you refer to Amazon.com after that date. Please be assured that all qualifying advertising fees earned prior to March 8, 2010, will be processed and paid in accordance with our regular payment schedule. Based on your account closure date of March 8, any final payments will be paid by May 31, 2010.
We have enjoyed working with you and other Colorado-based participants in the Amazon Associates Program, and wish you all the best in your future.
Best Regards,
The Amazon Associates Team
It’s hard to understand what just happened here, but Affiliates are using the hashtag #noadtax to post on Twitter. At the same time, Sen. Greg Brophy tweeted:
I have call into Amazon about affiliates – will seek emergency legislation if necessary to fix #noadtax
It’s unclear exactly what Brophy means, though: the Affiliates were not part of the requirements to force retailers down this new path, yet they were terminated. One has to wonder, therefore, if it’s a PR blitz on the part of Amazon.com.