Colorado’s new tax law raises questions for online retailers

Retailers say they haven’t been told how or when to report customers’ online sales purchases to Colorado tax officials. The law was upheld this week when the U.S. Supreme Court chose not to hear a challenge to it.

Online-only retailers that sell in Colorado have a new law to follow, one that requires them to turn over the names and online purchase information of state residents, but retailers don’t know how the law will be executed or enforced, and Colorado officials aren’t yet saying.

The Colorado Department of Revenue will have to implement the law and let companies know what to do, and it hasn’t done so, says Steve Kranz, a tax lawyer and partner with the law firm McDermott, Will & Emery.

The U.S. Supreme Court this week declined to hear an appeal from the Data & Marketing Association seeking to overturn the Colorado law, which was passed in 2010 but is not being enforced. The law requires online retailers, even those with no physical presence (or nexus) in Colorado, to send a notification to shoppers living in the state who spend more than $500 annually with them, and the law requires the retailers to file an annual report with the state’s Department of Revenue with customers’ names, purchase amounts and addresses so that the state knows the “use tax” owed by consumers. Use taxes are levied by states in lieu of sales taxes.

Representatives from the Colorado Department of Revenue did not return multiple requests for comment on when or how the department intends to enforce the law and what retailers will have to do to comply with it.

“The Colorado Department of Revenue has so far indicated only that it is evaluating the effect of the Supreme Court’s ruling; it has not indicated what approach it expects to take with respect to enforcement of the law.  We expect further developments in the coming days,” says Matthew Schaefer, a partner at law firm Brann & Isaacson who served as co-counsel for the DMA on this case. “We are disappointed, as are retailers potentially affected by the Colorado notice and reporting law, that the U.S. Supreme Court decided not to grant review the 10th Circuit’s decision upholding the Colorado law, which we believe, as did the federal district court, discriminates against interstate commerce by treating out-of-state retailers differently from their in-state competitors.”

A spokesman for the DMA, which in October changed its name from the Direct Marketing Association, says the association hasn’t given up its legal fight in Colorado just yet. “We will be consulting with our membership to determine the path forward on this challenge,” he says.
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