TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Friday, June 28, 2013

Leveling the International Playing Field with the Marketplace Fairness Act

Richard Thompson Ainsworth (Boston University) & Boryana Madzharova (University of Erlangen-Nuremberg, Department of Economics), Leveling the International Playing Field with the Marketplace Fairness Act;

Quill v. North Dakota unbalanced the American retail market with its preference for out-of-state over in-state sellers. The preference under Quill is that sellers without physical presence in a state cannot be compelled to collect the sales tax. If the buyer does not voluntarily remit the complementary use tax, the purchase is effectively tax-free. As a result, Quill is seen as facilitating tax avoidance and driving business to sellers who have no in-state nexus, notably e-businesses. Revenue losses are estimated in excess of $10 billion per year. The reach of the Quill decision is international.

Preferred sellers can reside just as easily in another country as they can in another State. The international dimension of the Quill decision means that legislative efforts to correct Quill’s preference for out-of-state sellers, like the Marketplace Fairness Act (MFA), also have international implications. This paper provides a rough analytical and quantitative measure of the impact of the MFA on the largest block of foreign businesses selling into the US, businesses selling from the EU.

Analytically, the MFA offers a compliance regime similar to that advanced by the EU Commission for collecting VAT on difficult cross-border transactions. This administrative replication allows outcomes to be compared. Quantitative measures can be extrapolated from trade statistics, and will allow some rough estimate of where the MFA will have its greatest international impact.

The EU’s preference for a government-centric OSS and the US preference for OSSs that involve third-parties and certified software may have very different success profiles. This is an important assessment that is yet to come, but it suggests that the US may want to borrow a solution from the EU, or the EU may want to borrow a solution from the US States. Both sides need to be open to the possibility.

The transatlantic economy is the largest and wealthiest market in the world, accounting for over 54% of world GDP in terms of value and 40% in terms of purchasing power. See: Daniel S. Hamilton & Joseph P. Quinlan, The Transatlantic Economy 2011 – Annual Survey of Jobs, Trade and Investment between the United States and Europe, Center for Transatlantic Relations, Johns Hopkins University, Paul H. Nitz School of Advanced International Studies.

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