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ACMA, TruST Partner NetChoice Sue South Dakota Over Unconstitutional Internet Sales Tax Law

Pierre, South Dakota (April 29, 2016) – The state of South Dakota’s new Internet sales tax mandate — to force out-of-state sellers to collect South Dakota sales tax — is an unconstitutional expansion of state tax powers and directly conflicts with precedent set by the Supreme Court of the United States.  That’s according to a suit filed today by the American Catalog Mailers Association (ACMA) and NetChoice in South Dakota’s Sixth Judicial Circuit Court. Andy Gerlach, Secretary of the South Dakota Department of Revenue, is the named defendant.

In 1992, the Supreme Court of the United States upheld in Quill Corp. v. North Dakota that, under the Commerce Clause of the Constitution, states do not have the power to require sales tax collection by out-of-state sellers having no physical presence in that state.  Under Quill, a company whose only contact with the state is communicating with customers via remote means — such as mail, common carrier, or the Internet — lacks a “physical presence” in the state.

In direct contravention of the Supreme Court’s Quill decision, South Dakota has approved a statute (SB 106) that creates new sales and use tax collection obligations on remote sellers. This novel “economic presence” classification defines retailers as having nexus within the state if they exceed $100,000 in annual sales or 200 remote sales transactions with South Dakota customers. Moreover, this applies not only to physical sales, but also sales of digital goods and online services.

The new law takes effect May 1 and the State began circulating demand notices in March.

“South Dakota is showing wanton disregard for established Supreme Court precedent,” said Hamilton Davison, president and executive director of the ACMA.  “This statute is blatantly unconstitutional and flies in the face of law that has been settled for decades.  States simply don’t have the authority to pick and choose the Supreme Court decisions they will follow.”

“South Dakota has imposed unconstitutional and unworkable burdens on remote sellers,” said Steve DelBianco, executive director of NetChoice.  “Left unchecked, this misguided tax law could set the course for enormous tax and administrative burdens on businesses across the country.  Irresponsible state laws are not the way to make new national policies for interstate commerce.”

The plaintiff trade associations seek a declaratory judgment against the South Dakota Department of Revenue.  If granted, this would mean that the statute is unconstitutional and therefore unenforceable.

If not addressed, this new law will impose significant upfront costs on retailers. Research by the TruST coalition estimates that a mid-market retailer collecting taxes for states with multiple taxing jurisdictions and definitions would spend $80,000 – $290,000 in setup and integration costs and $57,500 to $260,000 in ongoing maintenance, updates, audits and service fees charged by “free” software providers.

ACMA and NetChoice represent eCommerce businesses, catalog and remote sellers who will be directly and adversely affected by South Dakota’s new sales tax law. They are also co-founders of the TruST coalition, which represents American businesses in the fight to keep interstate commerce and competition free from unfair tax burdens imposed by states where businesses have no operations or representation.

South Dakota is not the only state considering such unconstitutional sales tax laws.  Other states have passed or are considering similar legislation to define economic presence and undermine Quill, including Alabama, Utah, and Colorado.

“This is equivalent to malpractice,” said Davison. “It represents exactly the type of bad governance that makes Americans cynical of big government. While US Supreme Court precedent gives Congress the right to make new rules for interstate commerce in this area, State legislatures do not have this right.”

Congress is currently working to create a federal solution to Internet and remote sales tax. The ACMA and NetChoice support a legislative approach laid out by the Chairman of the House Judiciary Committee, Bob Goodlatte (R-VA-6th), which would administer sales taxes based on the location of the seller, not the buyer. This is the system already in place for brick and mortar retailers, who collect only where they are physically located, and would put Internet sellers, catalog sellers, and big-box retailers on a level playing field.

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Lynn Noble

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Lynn Noble is ACMA’s Vice President, Industry Relations, having joined the ACMA in May 2015, following an extensive direct marketing career in private industry as well as the US Postal Service. He is responsible for leading the membership development efforts for the ACMA through new member acquisitions and providing enhanced member value.

Throughout his career, Lynn has held key marketing & sales positions with several leading direct marketers, as well as several high-level management positions with the US Postal Service.

In 2009, at the request of the ACMA, the US Postal Service initiated a new position of Catalog Manager to lead the Service’s efforts to stabilize and grow the catalog industry. Lynn returned to the USPS to lead those efforts and was instrumental to developing a stronger industry partnership between the Postal Service and the catalog industry. Serving as the product manager for catalogs, Lynn helped to raise the awareness of catalog-specific business challenges within the executive ranks of the USPS. During his tenure, the ACMA and catalog companies enjoyed a collaborative and progressive environment that produced more stabilized rates and inclusion in key USPS promotional opportunities.

Just prior to joining the ACMA Lynn was the USPS’s Manager, Strategic Account Operations, leading a team of senior sales professionals who focused exclusively in the Catalog, Mail Order, and E-commerce arena. In addition to his Postal positions, Lynn previously held key positions with leading direct marketing companies, including Cox Target Media, Market Logic, Catalina Marketing, Freesamples.com, and Advantage Direct.

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Named Vice President & Deputy Director in January 2010, Miller came to the ACMA following a lengthy career of more than two decades following the catalog/multichannel/e-commerce/retail businesses. Reporting to ACMA president & executive director Hamilton Davison, Miller oversees marketing and communications, membership development, and organizes and oversees ACMA’s National Catalog Forum, while working with Davison on most of ACMA’s postal-related efforts.

Miller started his career as a reporter with Catalog Showroom Business, following a form of retailing that was led by the likes of the Service Merchandise and Best Products retail chains.

After several years of editor/reporter roles with business magazines that followed the toy and gift industries, Miller was named associate editor of Catalog Age magazine (now Multichannel Merchant) in 1986. He rose up the ranks at Catalog Age over the next 18 years to be the magazine’s senior news editor.

Beginning in the late ’80s, Miller became Catalog Age’s postal beat reporter, where he’d follow key postal events and pull out the key catalog mail-related issues for readers. During that time, he attended many Mailers Technical Advisory Committee (MTAC) meetings and National Postal forums.

After leaving Catalog Age in 2004, Miller consulted with several catalogers and multichannel suppliers for a time, he was named news/website editor at Commercial Property News. Less than a year later, he was asked to take the reigns at Catalog Success (now All About ROI) where he served as editor-in- chief from 2006 till the end of 2009.

 

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ACMA appointed Michael K. Plunkett as its President and Executive Director in January 2024, succeeding founder Hamilton Davison. Mr. Davison moved on to own and run a company. Mr. Plunkett brings years of executive leadership experience having been the President and CEO of the Association for Postal Commerce (PostCom) since 2017.  In the newly-formed dual role, he will continue his current role with PostCom and the two organizations will operate separately.

During his tenure, PostCom has continued to lead the mailing and shipping industry on policy and regulatory matters and to work with Government agency partners to advance issues of importance to members. Mr. Plunkett is also President of the Delivery Technology Advocacy Council, a nonprofit launched in 2020 to concentrate on delivery and logistics technologies.

Prior to PostCom, Mr. Plunkett accumulated more than 25 years Postal experience with the United States Postal Service in numerous executive roles in operations, marketing, product development and pricing.  As a leader within the Postal Service’s management team, Mr. Plunkett developed a well-earned reputation for innovation by leading efforts to develop pricing agreements for domestic services and in the development of the forever stamp and the priority mail flat rate box.

Mr. Plunkett has testified on pricing and policy issues before the Postal Regulatory Commission and Congressional subcommittees.  He has authored and presented papers on postal policies, economics, and operations for National and International conferences.

Mr. Plunkett holds Masters Degrees in Business from the Wharton School at the University of Pennsylvania and the Massachusetts Institute of Technology, where he was a Sloan Fellow. He earned a Bachelor Degrees in Economics and Finance from the Pennsylvania State University.