BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                  AB 153
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          Date of Hearing:  March 7, 2011

                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
                                Henry T. Perea, Chair

                 AB 153 (Skinner) - As Introduced:  January 18, 2011

          Majority vote.  Fiscal committee.

           SUBJECT  :  State Board of Equalization:  administration:  
          retailer engaged in business in this state

           SUMMARY  :  Expands the statutory list of retailers that are 
          considered to be engaged in business in California and that, as 
          such, are required to collect use tax on sales of tangible 
          personal property (TPP) to California consumers.  Specifically, 
           this bill  :

          1)Imposes a use tax collection obligation on any retailer that 
            enters into an agreement under which one or more persons in 
            this state, for a commission or other consideration, directly 
            or indirectly refer potential customers to the retailer, 
            whether by an Internet-based link, a website, or otherwise, 
            provided the cumulative sales price from all of the retailer's 
            sales within the preceding 12 months to customers in 
            California who are referred exceeds $10,000.  

          2)Specifies that this provision shall not apply if the retailer 
            can demonstrate that the person with whom the retailer has an 
            agreement did not engage in referrals in the state on the 
            retailer's behalf that would satisfy the requirements of the 
            Commerce Clause of the United States (U.S.) Constitution.   

          3)Provides that an agreement under which a retailer purchases 
            advertisements from a person in this state, to be delivered on 
            television, radio, in print, on the Internet, or by any other 
            medium, is not an agreement described above, unless the 
            advertisement revenue paid consists of commissions or other 
            consideration that is based upon sales of TPP.  

           EXISTING FEDERAL LAW  :

          1)Authorizes Congress, under the Commerce Clause of the U.S. 
            Constitution, to regulate commerce with foreign nations, and 
            among the several states.  The U.S. Supreme Court has held 
            that the "negative" or "dormant" Commerce Clause also 








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            prohibits states from enacting laws that unduly burden or 
            discriminate against interstate commerce. 

          2)Provides per federal case law that, under the dormant Commerce 
            Clause, a retailer must have a "physical presence" in a state 
            before that state can require the retailer to collect its use 
            tax.

           EXISTING STATE LAW  :

          1)Imposes a sales tax on retailers for the privilege of selling 
            TPP, absent a specific exemption.  The tax is based upon the 
            retailer's gross receipts from TPP sales in this state.  

          2)Imposes a complementary use tax on the storage, use, or other 
            consumption in this state of TPP purchased from any retailer.  
            The use tax is imposed on the purchaser, and unless the 
            purchaser pays the use tax to a retailer registered to collect 
            the California use tax, the purchaser remains liable for the 
            tax, unless the use is exempted.  The use tax is set at the 
            same rate as the state's sales tax and must be remitted to the 
            State Board of Equalization (BOE).  

          3)Specifies those retailers that are considered to be engaged in 
            business in this state and that, as such, are required to 
            collect use tax on sales of TPP to California consumers.  
            Specifically, the term "retailer engaged in business in this 
            state" includes any retailer who:

             a)   Maintains, occupies, or uses, permanently or 
               temporarily, directly or indirectly, or through a 
               subsidiary, or agent, by whatever name called, an office, 
               place of distribution, sales or sample room or place, 
               warehouse or storage place, or other place of business;

             b)   Has any representative, agent, salesperson, canvasser, 
               independent contractor, or solicitor operating in this 
               state under the authority of the retailer or its subsidiary 
               for the purpose of selling, delivering, installing, 
               assembling, or the taking of orders for any TPP; or,

             c)   Derives rentals from a lease of TPP situated in this 
               state.

           FISCAL EFFECT  :  The BOE notes that its revenue estimate for this 
          bill is subject to "considerable uncertainty."  Moreover, there 








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          could be a delay in collections due to potential litigation 
          challenging this measure.  In a purely static world with full 
          retailer compliance, BOE estimates increased state and local 
          revenues of $152 million in fiscal year (FY) 2011-12 and $317 
          million in FY 2012-13.  These estimates are based on the 
          combination of (1) the amount of revenues currently being 
          collected in New York, adjusted for California's larger economy, 
          and (2) increased revenues associated with out-of-state 
          retailers that sell to California consumers on eBay that would 
          have a use tax collection obligation under this bill.   

           COMMENTS  :   

          1)The author has provided the following statement in support of 
            this bill:

               AB 153 would clarify state laws to require internet based 
               non-California merchants with a network in the state to 
               collect sales tax on purchases shipped into California. 
               This bill would play a significant role in leveling the 
               playing field for California businesses and would help 
               secure needed revenue to support essential local services. 

               AB 153 will provide a much needed boost to hundreds of 
               brick and mortar businesses in the state.  For several 
               years, local businesses have been calling for an equitable 
               resolution to this issue.  While they collect and pay the 
               sales taxes their communities rely on, out-of-state, online 
               retailers do not, and their avoidance has cost the state 
               billions of dollars a year.  While these out-of-state 
               online retailers entice shoppers with so-called "tax-free 
               shopping," local retailers pay their fair share of taxes 
               and do hundreds of other things - some financial, some 
               non-financial - to support local activities. 

               California businesses are the backbone of our economy and 
               we cannot continue to put them at a disadvantage to mega 
               online retailers who use loopholes from our outdated laws 
               to reap the benefits of our large consumer base.  It's 
               estimated that retail businesses physically based in the 
               state - and employing California workers - are losing $4.1 
               billion in sales in 2010 to online-only retailers.  The 
               state needs to end this loophole and give all businesses 
               the chance to compete in California on an even playing 
               field.   









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          2)Proponents state, "For too many years, out-of-state retailers 
            have exploited the ability to avoid collecting sales tax even 
            when companies like Amazon have substantial presence in the 
            state of California.  ƯAB 153] will be an unusual win-win:  
            good for revenue for the state and for the many businesses in 
            California which are at a disadvantage from this tax avoidance 
            strategy.  The fact is, Amazon has thousands of affiliates and 
            direct properties in the state, and in our view should already 
            be collecting tax.  ƯAB 153] will clarify that such a presence 
            establishes sales tax nexus, as is appropriate."

          3)Opponents state, "If AB 153 were to pass and create nexus for 
            non-California retailers using click-throughs, a principal 
            source of revenue for California-based companies and 
            organizations would end as out-of-state retailers severed 
            their California ties.  Non-California website companies and 
            organizations would become the ultimate beneficiaries of AB 
            153 because the out-of-state retailers would simply switch to 
            using their websites to access the California market and avoid 
            the state's use tax laws."  

          4)BOE has provided the following comments in its staff analysis 
            of this bill:

              a)   Is this form of affiliate nexus constitutional?  :  
               "Nineteen years have passed since the court rendered its 
               decision in Quill.  However, the manner in which business 
               is done now has changed dramatically compared with the 
               commercial landscape at the time that case was decided.  
               The New York Appellate court has determined that these 
               provisions are not unconstitutional on their face.  
               However, there is still some question with respect to New 
               York's provisions (after which this bill is modeled) 
               whether they are constitutional as they are applied.  Until 
               the court ultimately decides that the physical presence 
               requirement affirmed in Quill is outdated, and renders a 
               new decision to reflect today's marketplace, there is at 
               least some question whether this form of affiliate nexus 
               will be ultimately found to be in conformance with the 
               dormant commerce clause."  

              b)   In addition to firms like Amazon, provisions could 
               impact many other out-of-state retailers who sell tangible 
               items on eBay or other similar online marketplaces 
               domiciled in California  .  "As currently worded, the 
               provisions would apply to those out-of-state retailers that 








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               are not otherwise engaged in business in California but 
               that sell goods to California consumers through online 
               sites maintained by California residents when all of the 
               conditions in the bill are met.  An out-of-state retailer's 
               sales through eBay, for example, where eBay refers 
               potential purchasers for a commission or other 
               consideration to the retailer by a link or otherwise, could 
               fit within the provisions of this bill (eBay is a 
               California "resident").  If those sales exceeded $10,000 
               within the previous 12 months, that out-of-state retailer 
               would be considered "engaged in business" in this state 
               under this bill.  As a retailer engaged in business in 
               California, the retailer would be required to register with 
               the BOE and would have the duty to collect the use tax on 
               all of his or her sales to California consumers - whether 
               through eBay or otherwise."  

              c)   Affiliates' concerns  .  "According to information 
               obtained from Performance Marketing Association, California 
               has about 25,000 affiliates who derive income from 
               agreements with out-of-state retailers that potentially 
               could be negatively impacted by this bill.  Their concern 
               relates to the fact that many out-of-state retailers with 
               affiliate programs will terminate their agreements with 
               them should California enact this provision.  Overstock.com 
               did, in fact, terminate its affiliate program in New York - 
               the first state that enacted this "click through nexus" 
               provision, and Amazon terminated its affiliate programs in 
               Rhode Island and North Carolina when those states enacted 
               provisions similar to this bill.  Amazon even terminated 
               their relationship with Colorado's affiliates when the 
               Colorado Legislature enacted provisions to impose an 
               information reporting requirement on remote retailers that 
               do not have nexus in Colorado.  And, a "click through 
               nexus" bill is currently awaiting the Governor's signature 
               in Illinois, and Amazon has informed its affiliates there 
               that Amazon's affiliate program with them will terminate 
               should the bill become law.  And, more importantly, we have 
               also obtained written confirmation directly from Amazon 
               that confirms that it will terminate its relationship with 
               its California affiliates should California enact this 
               provision." 

              d)   What are other states doing  ?  "In addition to pending 
               legislation in Illinois on this "click through nexus" 
               provision, several other states are considering adding a 








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               similar provision:  Arizona, Hawaii, Minnesota, 
               Mississippi, New Mexico, Connecticut, Texas and Vermont.  
               Also, a bill to repeal its "click through nexus" provision 
               has been introduced in Rhode Island."   

          5)Committee Staff Comments:

              a)   California's Use Tax  :  Since 1933, the state has imposed 
               a sales tax on California retailers for the privilege of 
               selling TPP, absent a specific exemption.  The tax is based 
               upon the retailer's gross receipts from TPP sales in this 
               state.  In 1935, California adopted a complementary "use 
               tax" on the storage, use, or other consumption of TPP 
               purchased out-of-state and brought into California.  The 
               use tax was designed to protect California merchants who 
               would otherwise be at a competitive disadvantage when 
               out-of-state retailers sell to 10,000 California customers 
               without charging tax.

               Unlike the sales tax, the use tax is imposed on the 
               purchaser and not the retailer.  Unless the purchaser pays 
               the use tax to an out-of-state retailer registered to 
               collect California's use tax, the purchaser remains liable 
               for the tax.  The use tax is set at the same rate as the 
               state's sales tax and must be remitted to the BOE.

              b)   Impediments to Collection  :  The most practical way for a 
               state to enforce its use tax is to have retailers collect 
               the tax at the time of sale.  However, there is 
               considerable ambiguity regarding the circumstances under 
               which a state may legally compel an out-of-state retailer 
               to collect use tax on its behalf.  This ambiguity has its 
               origins in the Commerce Clause of the U.S. Constitution, 
               which charges Congress with regulating commerce among the 
               several states.  The U.S. Supreme Court has held that, by 
               implication, the Commerce Clause also prohibits states from 
               enacting laws that unduly burden interstate commerce.    

               In  Quill Corp. v. North Dakota  (1992), 504 U.S. 298, the 
               U.S. Supreme Court was asked to decide the 
               constitutionality of a North Dakota law that imposed a use 
               tax collection obligation on out-of-state retailers that 
               advertised in the state three or more times in a single 
               year.  The Court invalidated the law, holding that, under 
               the negative Commerce Clause, a retailer must have a 
               "physical presence" in a state before that state can 








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               require the retailer to collect its use tax.  

               The "physical presence" test affirmed in  Quill  has 
               complicated California's efforts to collect its use tax.  
               For example, when a California consumer purchases a coat 
               from an out-of-state retailer through its catalog or online 
               store, the consumer's use of the coat in California 
               triggers a use tax liability.  If the out-of-state retailer 
               lacks a "physical presence" in California, however, 
               California is constitutionally prohibited from requiring 
               the retailer to collect the tax.  If the consumer fails to 
               remit the tax, the purchase completely escapes taxation.  
               It is estimated that this gap in California's sales and use 
               tax (SUT) system costs the state over $1.145 billion in 
               revenues each year.<1>    

             c)   What Would this Bill Do?  :  As noted above, Revenue and 
               Taxation Code (R&TC) Section 6203 specifies those retailers 
               considered to be engaged in business in this state - in 
               other words, it lists those retailers that are considered 
               to have a "physical presence" sufficient to impose a use 
               tax collection obligation.  This bill would add to this 
               statutory list certain "out-of-state" retailers that use 
               California residents, often referred to as "affiliates," to 
               promote business.  This bill is modeled after the so-called 
               "Amazon" legislation passed in New York.  New York, and 
               other states that have enacted similar bills, argue that if 
               a remote vendor (like Amazon) uses an affiliate marketing 
               program, the vendor's in-state activities satisfy  Quill's  
               physical presence requirements and thus create SUT nexus 
               for the vendor.  Specifically, this argument is based on 
               the theory of "attributional" nexus, as established in 
                Scripto, Inc. v. Carson  (1960) 362 U.S. 207 and  Tyler Pipe 
               Indus. v. Washington State Dep't of Revenue  (1987) 483 U.S. 
               232, which hold that if a retailer has in-state agents that 
               sell on the retailer's behalf, the in-state agents may 
               establish nexus on behalf of the out-of-state retailer.

              d)   Arguments in Support  :  Proponents of the Amazon approach 
               note that many out-of-state retailers use California 
               residents to drive business, and take full advantage of 
               California's consumer base, but refuse to collect 

             --------------------------
             --------------------------
          <1> This total represents $795 million in use taxes uncollected 
          from California consumers and $350 million in use taxes 
          uncollected from businesses.  







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               California's use tax. <2>   This, in turn, places these 
               companies at a competitive advantage vis-à-vis 
               California-based businesses, which must collect and remit 
               sales tax.

              e)   Arguments in Opposition  :  Opponents of the Amazon 
               approach argue that such legislation would cause 
               out-of-state retailers to terminate their affiliate 
               relationships with California residents.  This, they argue, 
               would place the jobs of California affiliates at risk in an 
               already troubled economic climate.  In addition, critics 
               argue that affiliates operate far differently from the 
               sales force "actively engaged" on behalf of Scripto, Inc.  
               Specifically, they note that the work of most affiliates is 
               passive and that affiliates do not call on customers or 
               directly solicit orders.

              f)   What Type of Affiliate Behavior Creates Nexus under this 
               Bill?  :  As noted above, this bill imposes a use tax 
               collection obligation on any retailer that enters into an 
               agreement under which a California affiliate, for a 
               commission or other consideration, directly or indirectly 
               refers potential customers to the retailer, whether by an 
               Internet-based link, a website, or otherwise.  This 
               language would seem to cover a broad range of potential 
               affiliate arrangements.  On one end of the continuum, this 
               language would seem to cover rather passive 
               commission-based link referrals, where the affiliate does 
               no more than refer potential consumers via a link on their 
               Internet website.  On the other end of the continuum, this 
               language would also cover affiliates who engage in active 
               solicitations (whether by e-mail or otherwise).  It is 
               unclear whether a reviewing court would find all of these 
               affiliate activities sufficient to establish nexus for 
               remote vendors.  Efforts could be taken to more 
               specifically describe the types of affiliate activities 
               that would establish nexus in California.  However, 
               providing such statutory clarity might have the unintended 
               consequence of prompting remote vendors to simply 
               restructure their affiliate agreements to fall outside the 
               law's ambit.  That is to say, out-of-state companies would 
               effectively be given a roadmap for restructuring their 
               affiliate agreements.   
             --------------------------
          <2> Amazon, Inc. collects tax in only five states: Washington, 
          North Dakota, Kentucky, Kansas, and New York.  Indeed, it would 
          seem that tax avoidance has been a longstanding priority for 
          Amazon, Inc. founder Jeff Bezos, who originally considered 
          citing his company on an Indian reservation near San Francisco 
          for tax avoidance purposes.  ("Sorry, Shoppers, but Why Can't 
          Amazon Collect More Tax?," Randall Stross, New York Times, 
          December 26, 2009).      







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             g)   Would Remote Vendors Really Terminate their California 
               Affiliates?  :  It should be noted that out-of-state 
               retailers have followed through on their threats to 
               terminate affiliate contracts in states that have adopted 
               Amazon legislation.  After New York's enactment of its 
               "Amazon" law, both North Carolina and Rhode Island followed 
               suit.  As a result, online giant Overstock.com cancelled 
               its affiliate program in all three states, while Amazon.com 
               cancelled its affiliate programs in both North Carolina and 
               Rhode Island.  
              
             h)   How Reliable are the Revenue Estimates for this Bill?  :  
               The state's likelihood of actually collecting BOE's 
               "static" revenue estimate depends entirely on (1) Internet 
               retailers' willingness to continue their in-state affiliate 
               programs, and (2) out-of-state retailers' continued 
               willingness to sell their products on platforms like eBay 
               with the attendant responsibility for collecting use tax on 
               all sales to California consumers.  The BOE has received 
               direct confirmation from Amazon that it will terminate its 
               relationship with its 10,000 California affiliates if this 
               bill is enacted.  BOE estimates that Amazon currently 
               comprises roughly 50% of the Internet sales of large firms 
               that currently do not have nexus in California.  
               Consequently, the static revenue estimates cited above, 
               adjusted for Amazon's anticipated response, would drop to 
               $114 million in FY 2011-12 and $234 million in FY 2012-13.  
               If other firms were also to terminate their affiliate 
                                             programs in response to this bill, the potential revenue 
               gains would be further diminished.  Additionally, the 
               termination of affiliate programs would have an adverse 
               impact on state employment, which would lead to lower 
               income tax revenues.  The amount of these potential 
               reductions is unknown.   

             i)   Legal Challenges Remain Unresolved  :  In November 2010, a 
               New York appellate court ruled for the state on certain 
               challenges to that state's Amazon law under the Commerce 
               Clause and the Due Process Clause.  The court noted, 
               however, that additional discovery was required at the 
               trial court level to determine whether there was sufficient 
               in-state activity to establish nexus under the Commerce 
               Clause.   

             j)   Recent Legislative Efforts Focused on Increasing Use Tax 








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               Collections  : In recent years, California has taken other 
               steps to increase use tax compliance.  Chief among these 
               efforts are the mandatory use tax registration program and 
               the permanent inclusion of a use tax line on the state's 
               income tax returns.  Each is discussed briefly below:
              
               i)     Mandatory Use Tax Registration for Service 
                 Enterprises  :  In 2009, California enacted R&TC Section 
                 6225 seeking to increase use tax compliance among 
                 California businesses that purchase TPP from 
                 out-of-state.  Specifically, Section 6225 requires 
                 "qualified purchasers" to register with BOE for annual 
                 use tax reporting.  A qualified purchaser is defined as a 
                 person that:
                
                   (1)       Receives at least $100,000 in gross receipts 
                    from business operations per calendar year;
                   
                   (2)       Is not required to hold a seller's permit or 
                    certificate of registration for use tax;
                   
                   (3)       Does not hold a use tax direct payment permit; 
                    and,
                   
                   (4)       Is not otherwise registered with BOE to report 
                    use tax.  

                  The BOE estimates that this mandatory registration 
                 program will generate roughly $58.5 million in FY 2010-11 
                 from a total of 556,012 registered accounts.

                ii)    Permanent Inclusion of a Use Tax Line on Income Tax 
                 Returns  :  In 2010, Governor Schwarzenegger signed SB 858 
                 (Committee on Budget and Fiscal Review) into law as part 
                 of the FY 2010-11 Budget Agreement.  Among other things, 
                 SB 858 provided for the permanent inclusion of a use tax 
                 line on the state's income tax returns, thereby allowing 
                 income tax filers to fill-in the amount of use tax due on 
                 their returns.  BOE staff estimated that this provision 
                 would increase General Fund collections by roughly $9.2 
                 million annually.
                
             aa)  What Does the Legislative Analyst's Office (LAO) 
               Recommend?  :  At this Committee's September 28, 2011 
               oversight hearing on the issue, the LAO noted, "Given the 
               significant interstate commerce issues arising from use tax 








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               compliance, Congress is the most likely - and probably the 
               most appropriate - venue for seeking a solution on the 
               issue of use tax compliance."  

             bb)  What is the Cost of Maintaining the Status Quo?  :  In 
               August 2010, Prof. Richard A. Parker of San Diego State 
               University issued a report reviewing the impact of 
               California's current use tax collection laws on economic 
               activity, commercial real estate values, jobs and payroll 
               in California.  Among other things, Prof. Parker noted the 
               following findings:
              
                i)     California-based retail businesses are losing $4.1 
                 billion annually in sales to exclusively online 
                 retailers.  These losses are projected to grow to $7.7 
                 billion in 2015 and $14.3 billion in 2020;
                
                ii)    Goldman Sachs estimates that online shopping will 
                 increase from 4.4% of all retail sales to 17.1% of all 
                 retail sales and that since 2000, internet sales have 
                 more than tripled; and, 
                
                iii)   18,300 full-time equivalent jobs are currently lost 
                 as a result of out-of-state online sales.  This number is 
                 projected to grow to 34,100 in 2015 and 63,400 in 2020;
                

          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Art Allis Supply Company
          B. Alive Vitamins and Natural Foods
          Barns & Noble  
          Betlach Desert Jewels 
          Book Tree
          Bowlers Corner
          California Democratic Party Region 8 Director Candice Easter 
          California Federation of Teachers
          California Labor Federation
          California Nurses Association
          California Professional Firefighters
          California Teachers Association
          City of Berkeley
          Copenhagen Interiors
          Cuffs Boutique








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          Diesel, A Bookstore 
          Fig Garden Bookstore
          Harley-Davidson of Fresno
          Heroes Comics
          Janna's Needle Art
          Kaleidoscope, The Parent Teacher Store
          Meridian Computer
          Midtown Business Association
          Morgan's Village Flooring
          Mrs. Dalloway's 
          Phono Select Records
          Placer County Deputy Sheriff's Association
          Sacramento County Probation Association
          Slack Shoppe
          Sport Chalet
          Styleyes 
          Swanbergs on J 
          The Home Depot
          The Reading Bug
          Unitedstate - Clothing and Music Store
          Vonda's at Villaggio
          1 individual

           Opposition 
           
          California Taxpayers Association 
          Direct Marketers Association 
          Performance Marketing Association 
          Tech America
           
          Analysis Prepared by  :  M. David Ruff  / REV. & TAX. / (916) 
          319-2098