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Commentary: The fight over online sales taxes cannot be about fairness

The U.S. Supreme Court in Washington. Washington Post photo by Ricky Carioti

Our view: Put online sellers on equal footing,” is the headline over a Grand Forks Herald editorial today, making the point that the U.S. Supreme Court should back South Dakota’s law instituting a 4.5 percent sales tax on online sales of retailers doing more than $100,000 in annual business.

It’s a case with national implications because it challenges the precedent set in the 1992 SCOTUS case Quill vs. North Dakota which held that retailers without a physical presence in a state cannot be subjected to that state’s sales taxes (I wrote about that case earlier this week as well).

That case was ruled on before the days of the internet, and the boom in online commerce, and today many (including the editorial board of the Herald) argue that the Quill precedent is unfair to brick-and-mortar retailers who find themselves collecting a tax their online competitors (at least those without a physical presence in their state) are not obligated to collect.

“[T]he online seller certainly shouldn’t be rewarded with an advantageous tax break that puts Main Street in peril,” the Herald opines.

But the courts aren’t in the business of fairness. They are in the business of adjudicating the law. And the law in this instance is pretty clear.

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