H.R.5660 - Main Street Fairness Act
To promote simplification and fairness in the administration and collection of sales and use taxes, and for other purposes.
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Mr. DELAHUNT (for himself, Mr. CONYERS, Mr. CAPUANO, Ms. HERSETH SANDLIN, and Mr. WELCH) introduced the following bill; which was referred to the Committee on the JudiciaryCommentsClose CommentsPermalink
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
SEC. 2. CONSENT OF CONGRESS.
SEC. 3. FINDINGS.
(2) As a matter of economic policy and basic fairness, similar sales transactions should be treated equally, without regard to the manner in which sales are transacted, whether in person, through the mail, over the telephone, on the Internet, or by other means.CommentsClose CommentsPermalink
(4) States that voluntarily and adequately simplify their tax systems should be authorized to correct the present inequities in taxation through requiring sellers to collect taxes on sales of goods or services delivered in-state, without regard to the location of the seller.CommentsClose CommentsPermalink
(5) The States have experience, expertise, and a vital interest in the collection of sales and use taxes, and thus should take the lead in developing and implementing sales and use tax collection systems that are fair, efficient, and non-discriminatory in their application and that will simplify the process for both sellers and buyers.CommentsClose CommentsPermalink
SEC. 4. AUTHORIZATION TO REQUIRE COLLECTION OF SALES AND USE TAXES.
(1) IN GENERAL- Each Member State under the Streamlined Sales and Use Tax Agreement is authorized, subject to the requirements of this section, to require all sellers not qualifying for the small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to that Member State under the Agreement.CommentsClose CommentsPermalink
(A) Ten States comprising at least 20 percent of the total population of all States imposing a sales tax, as determined by the most recent Federal census, have petitioned for membership and have become Member States under the Agreement.CommentsClose CommentsPermalink
(C) Each Member State has met the requirements to provide and maintain the databases and the taxability matrix described in the Agreement, pursuant to requirements of the Governing Board.CommentsClose CommentsPermalink
(2) LOSS OF MEMBER STATE STATUS- The authorization provided under subsection (a) shall terminate for a Member State, if such Member State no longer meets the requirements for Member State status under the terms of the Agreement or the provisions of this Act.CommentsClose CommentsPermalink
(1) IN GENERAL- The Governing Board shall determine if Member States are in compliance with the requirements of subsections (a) and (b) and whether each Member State meets the minimum simplification requirements of section 7, and shall reevaluate such determination on an annual basis.CommentsClose CommentsPermalink
(2) COMPLIANCE DETERMINATION- Upon the determination of the Governing Board that all the requirements of subsection (a) have been satisfied, the authority to require a seller to collect and remit sales and use taxes shall commence on the first day of a calendar quarter at least 6 months after the date the Governing Board makes its determination.CommentsClose CommentsPermalink
(3) NONCOMPLIANCE DETERMINATION- Upon a final determination by the Governing Board that a Member State is not in compliance with the minimum simplification requirements of section 7 or is otherwise not in compliance with the Agreement, that Member State shall lose its remote seller collection authority on the earlier of--CommentsClose CommentsPermalink
(ii) the first day of a calendar quarter following the end of one full session of the State’s legislature beginning after the Governing Board finally determined the State was not compliant.CommentsClose CommentsPermalink
For purposes of this section, the terms ‘final determination’ or ‘finally determined’ shall mean that all appeals processes provided for in the Agreement have been exhausted or the time for pursuing such appeals has expired. An action before the Federal Court of Claims pursuant to section 6 shall not operate to stay a State’s loss of collection authority.CommentsClose CommentsPermalink
(4) RESTORATION OF AUTHORITY- Any Member State that loses its collection authority under this section must comply with all provisions of this section to have its remote seller collection authority restored.CommentsClose CommentsPermalink
SEC. 5. TRIBAL GOVERNMENTS.
(A) IN GENERAL- If the effect of any federally recognized Indian tribe’s laws, rules, regulations, and policies is compliant with each of the terms of the Agreement, and the Indian tribe has entered into an agreement with the primary State where such tribe is located, the Governing Board shall consider such tribe for admission as a Member State to the Agreement on the same basis as States.CommentsClose CommentsPermalink
(B) NO STATE-TRIBAL AGREEMENT PRESENT- If a petitioning Indian tribe and the primary State in which such tribe is located have attempted to negotiate, but have not reached, an agreement as described in subparagraph (A) within 2 years after the date of the submission of such petition, the Governing Board shall consider such tribe for admission as a Member State to the Agreement on the same basis as States without regard to the presence of a State-tribal agreement.CommentsClose CommentsPermalink
(A) IN GENERAL- If any federally recognized Indian tribe is accorded Member State status under the Agreement under this section, such tribe shall be represented on the Governing Board by at least 1 member.CommentsClose CommentsPermalink
(B) MULTIPLE TRIBES- If 2 or more federally recognized Indian tribes are accorded Member State status under the Agreement under this section, additional representation of such tribes on the Governing Board shall be determined by the Governing Board, in consultation with those tribes that are Member States.CommentsClose CommentsPermalink
(3) preventing Indian tribal governments and States from entering into bilateral agreements for the collection and allocation of sales taxes (whether or not such bodies are admitted as Member States to the Agreement); orCommentsClose CommentsPermalink
SEC. 6. DETERMINATIONS BY GOVERNING BOARD AND JUDICIAL REVIEW OF SUCH DETERMINATIONS.
(a) Petition- At any time after the Governing Board has made the determinations required under section 4(c), any person who may be affected by the Agreement may petition the Governing Board for a determination on any issue related to the implementation of the Agreement or on a Member State’s compliance with this Act or the Agreement.CommentsClose CommentsPermalink
(b) Review in Court of Federal Claims- Any person who submits a petition under subsection (a) may bring an action against the Governing Board in the United States Court of Federal Claims for judicial review of the action of the Governing Board on that petition if--CommentsClose CommentsPermalink
(2) the petition is denied by the Governing Board in whole or in part with respect to that issue, or the Governing Board fails to act on the petition with respect to that issue not later than the 6-month period beginning on the day after the date on which the petition was submitted.CommentsClose CommentsPermalink
(c) Timing of Action for Review- An action for review under this section shall be initiated not later than 60 days after the denial of the petition by the Governing Board, or, if the Governing Board fails to act on the petition, not later than 60 days after the end of the 6-month period beginning on the day after the date on which the petition was submitted.CommentsClose CommentsPermalink
(1) IN GENERAL- In any action for review under this section, the court shall set aside the actions, findings, and conclusions of the Governing Board found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.CommentsClose CommentsPermalink
(2) REMAND- If the court sets aside any action, finding, or conclusion of the Governing Board under paragraph (1), the court shall remand the case to the Governing Board for further action consistent with the decision of the court.CommentsClose CommentsPermalink
‘SEC. 1510. JURISDICTION REGARDING THE STREAMLINED SALES AND USE TAX AGREEMENT.
‘The United States Court of Federal Claims shall have exclusive jurisdiction over actions for judicial review of determinations of the Governing Board of the Streamlined Sales and Use Tax Agreement under the terms and conditions provided in section 6 of the Main Street Fairness Act.’.CommentsClose CommentsPermalink
(2) CONFORMING AMENDMENT TO TABLE OF SECTIONS- The table of sections for chapter 91 of title 28, United States Code, is amended by adding at the end the following new item:CommentsClose CommentsPermalink
SEC. 7. MINIMUM SIMPLIFICATION REQUIREMENTS.
(1) A centralized, one-stop, multistate registration system that a seller may elect to use to register with the Member States, provided a seller may also elect to register directly with a Member State, and further provided that privacy and confidentiality controls shall be placed on the multistate registration system so that it may not be used for any purpose other than the administration of sales and use taxes. Furthermore, no taxing authority within a Member State or a Member State that has withdrawn or been expelled from the Agreement may use registration with the centralized registration system for the purpose of, or as a factor in determining, whether a seller has a nexus with that Member State for any tax at any time.CommentsClose CommentsPermalink
(2) Uniform definitions of products and product-based exemptions from which a Member State may choose its individual tax base, provided, however, that all local jurisdictions in that Member State with respect to which a tax is imposed or collected, shall have a common tax base identical to the State tax base of that Member State. A Member State may enact product-based exemptions without restriction if the Agreement does not have a definition for the product or for a term that includes the product. A Member State shall relax the good faith requirement for acceptance of exemption certificates in accordance with section 317 of the Agreement, as in effect on the date of the enactment of this Act.CommentsClose CommentsPermalink
(4) Uniform procedures for the certification of service providers and software on which a seller may elect to rely in order to determine Member State sales and use tax rates and taxability.CommentsClose CommentsPermalink
(8) Single, State-level administration of all Member State and local sales and use taxes, including a requirement for a State-level filing of tax returns in each Member State.CommentsClose CommentsPermalink
(10) A provision requiring the elimination by each Member State of caps and thresholds on the application of sales and use tax rates and exemptions based on value, provided that this limitation does not apply to the items identified in sections 308C, 322, and 323 of the Agreement, as in effect on the date of the enactment of this Act.CommentsClose CommentsPermalink
(11) A provision requiring each Member State to complete a taxability matrix, as adopted by the Governing Board. The matrix shall include information regarding terms defined by the Agreement in the Library of Definitions. The matrix shall also include, pursuant to the requirements of the Governing Board, information on use-, entity-, and product-based exemptions.CommentsClose CommentsPermalink
(12) A provision requiring that each Member State relieves a seller or service provider from liability to that Member State and local jurisdiction for collection of the incorrect amount of sales or use tax, and relieves the purchaser from penalties stemming from such liability, provided that collection of the improper amount is the result of relying on information provided by that Member State regarding tax rates, boundaries, or taxing jurisdiction assignments, or in the taxability matrix regarding terms defined by the Agreement in the Library of Definitions.CommentsClose CommentsPermalink
(13) Audit procedures for sellers, including an option under which a seller not qualifying for the small business exception may request, by notifying the Governing Board, to be subject to a single audit on behalf of all Member States for sales and use taxes. The Governing Board, in its discretion, may authorize such a single audit.CommentsClose CommentsPermalink
(14) Effective on the date authority to require collection commences under section 4, each Member State shall provide reasonable compensation for expenses incurred by all sellers in administering, collecting, and remitting sales and use taxes (other than use taxes on goods and services purchased for the consumption of the seller) to that Member State. Such compensation may vary in each Member State depending on the complexity of the sales and use tax laws in that Member State and may vary by the characteristics of sellers in order to reflect differences in collection costs. Such compensation may be provided to a seller or a third-party service provider whom a seller has contracted with to perform all the sales and use tax responsibilities of a seller.CommentsClose CommentsPermalink
(16) Governance procedures and mechanisms to ensure timely, consistent, and uniform implementation and adherence to the principles of the streamlined system and the terms of the Agreement.CommentsClose CommentsPermalink
(19) Uniform rules and procedures to address refunds and credits for sales taxes relating to customer returns, restocking fees, discounts and coupons, and rules to address allocations of shipping and handling and discounts applied to multiple item and multiple seller orders.CommentsClose CommentsPermalink
(b) Application of Minimum Simplification Requirements to Taxes on Communications Services- Each Member State shall apply the minimum simplification requirements of subsection (a) to sales and use taxes on communications services.CommentsClose CommentsPermalink
(1) IN GENERAL- The requirements of this section are intended to ensure that each Member State provides and maintains the necessary simplification to its sales and use tax system to warrant the collection authority granted to such Member State in section 4.CommentsClose CommentsPermalink
(3) EXCEPTION- In instances where exceptions to the requirements of this section can be exercised in a manner that does not materially increase the administrative burden on a seller obligated to collect or pay the taxes, such exceptions are permissible.CommentsClose CommentsPermalink
(d) No Requirement To Exempt From or Impose Tax- Nothing in this Act or the Agreement shall require any Member State or any local taxing jurisdiction to exempt, or to impose a tax on any product, or to adopt any particular type of tax, or to impose the same rate of tax as any other taxing jurisdiction.CommentsClose CommentsPermalink
SEC. 8. LIMITATION.
(1) IN GENERAL- No obligation imposed by virtue of the authority granted by section 4 shall be considered in determining whether a seller has a nexus with any Member State for any other tax purpose.CommentsClose CommentsPermalink
SEC. 9. EXPEDITED JUDICIAL REVIEW.
(a) Three-Judge District Court Hearing- Notwithstanding any other provision of law, any civil action challenging the constitutionality of this Act, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of
(1) IN GENERAL- Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding this Act, or any provision thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the United States Supreme Court.CommentsClose CommentsPermalink
SEC. 10. DEFINITIONS.
(3) NONDISCRETIONARY DUTY OF THE GOVERNING BOARD- The term ‘nondiscretionary duty of the Governing Board’ means any duty of the Governing Board specified in the Agreement as a requirement for action by use of the term ‘shall’, ‘will’, or ‘is required to’.CommentsClose CommentsPermalink
(4) PERSON- The term ‘person’ means an individual, trust, estate, fiduciary, partnership, corporation, limited liability company, or any other legal entity, and includes a State or local government.CommentsClose CommentsPermalink
(5) REMOTE SALE- The term ‘remote sale’ refers to a sale of goods or services attributed to a particular Member State with respect to which a seller does not have adequate physical presence to establish nexus under the law existing on the day before the date of the enactment of this Act so as to allow such Member State to require, without regard to the authority granted by this Act, the seller to collect and remit taxes covered by this Act with respect to such sale.CommentsClose CommentsPermalink
(7) STATE- The term ‘State’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States.CommentsClose CommentsPermalink
(8) STREAMLINED SALES AND USE TAX AGREEMENT- The term ‘Streamlined Sales and Use Tax Agreement’ (or ‘the Agreement’) means the multistate agreement with that title adopted on November 12, 2002, as in effect on the date of the enactment of this Act and unless the context otherwise indicates as further amended from time to time.CommentsClose CommentsPermalink
SEC. 11. SENSE OF CONGRESS ON DIGITAL GOODS AND SERVICES.
It is the sense of Congress that each Member State that is a party to the Agreement should work with other Member States that are also parties to the Agreement to prevent double taxation in situations where a foreign country has imposed a transaction tax on a digital good or service.CommentsClose CommentsPermalink