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@Sparkie82: Can you please explain what your concerns were regarding the edits I made to this page and why you reverted them? That way I can respond to your concerns and explain my reasoning. Erincg ( talk) 21:10, 12 October 2012 (UTC)
Thank you for your comments.
1. & 2. re: who pays sales tax -- Let me provide some more examples to help illustrate this because many people have this misunderstanding. When I ship a package using UPS, I pay them a certain amount to ship it. They collect this money, along with money from many other customers and they put my package on the jet and send it across the country. Some of the money they collect from their customers is used to pay for the fuel for the jet. Who paid for the fuel? Well, you could say, euphemistically, that UPS's customers pay their fuel bill, but actually UPS pays the fuel bill. Some time ago when fuel prices started to fluctuate too much, UPS began to itemize their fuel costs on their customer's bill, calling it a fuel surcharge. The itemization of that cost on their customer's bills did not change the fact that UPS, not their customers, paid their fuel bill.
In some jurisdictions, it is forbidden for sellers to itemize sales tax on their customer's receipts. The cost of the tax is part of the sellers selling expenses, but the customer never sees it itemized on their receipts. When the seller remits sales tax to the state (or city), they fill out a form that asks what their gross sales were for the period, then multiply that by the sales tax rate and remit that amount to the state. Who pays that tax? You could say, euphemistically, that their customers are paying the tax, and the customers are paying the seller's light bill and the customers are paying her lease and her employee's salaries, etc., but actually the sellers pays for all those things.
In jurisdictions that allow sellers to itemize the tax on customer receipts, everything is the same: the seller takes in money from customers and when they pay the sales tax to the state they must fill out a form that asks what their gross sales were for the period, then they multiply that by the sales tax rate and remit that amount to the state. If they didn't charge tax for something they should have, they still have to pay the tax.
Another completely different way of explaining it -- What is the definition of remit? It means to pay or send payment. When you get a bill from your utility company, it asks you to remit payment to some address. Now, reread your comments above, substituting the word pay in place of remit.
Regarding NY state sales tax law, you said:
the New York State Dept. of Taxation and Finance says this about sales and use tax: "Sales and use tax generally applies to products and services that you purchase within or outside New York that are delivered or used in the state and on which the seller does not collect sales tax.
It said, "sales and use tax", not "sales tax". Generally, state statutes are written so that when a resident brings something into the state to use, they must pay a use tax (set at the same rate as the sales tax). If the seller pays sales tax to the state, then the use tax is not charged. (I'm not sure exactly how NY's laws are worded without doing a bunch of research.) Use tax is paid by the user (the buyer), sales tax is paid by the seller, and the laws are written in such a way so that the two are mutually exclusive so that the seller doesn't have to pay sales tax on something that the buyer also pays use tax on. But they are two different animals.
The reason why states have use tax at all is because they are forbidden from imposing sales tax on sellers who are not in their state. (See Commerce Clause and Quill v. N. Dakota) That's why they have a use tax, so they can collect taxes when something is purchased via interstate commerce. (When the seller has a physical presence in the state, then the transaction is not interstate commerce, even if the product itself is shipped from another state. It's considered a sale from the seller in the state, to a customer in the state; not interstate.) The sources you cited are not authoritative on the subject, you need to read the U.S. Constitution, and court opinions addressing the Commerce Clause, and the state statutes.
Regarding new tax, you said:
The bill also says "(d) No New Taxes- Nothing in this Act shall be construed as encouraging a State to impose sales and use taxes on any goods or services not subject to taxation prior to the date of the enactment of this Act." [5] Given that language, can we agree that this isn't a new tax? (If interstate sales weren't already subject to sales tax, this bill wouldn't change that.)
Again, that quote refers to sales and use tax. The phrase "No New Taxes" is merely a subsection title, kind of like "Marketplace Fairness Act", or "Streamlined Sales and Use Tax Agreement". The titles used in these laws are generally sales gimmicks and often misleading. (E.g., the Streamlined Sales and Use Tax Agreement is 203-pages long!) Also, that subsection is referring to the scope of a state's sales tax, i.e., which goods are taxed. Some states exempt food or clothing or whatever from sales tax and they are trying to get states to standardize on the scope. Apparently, the language, "construed as encouraging a State to impose... not subject to taxation prior.." is in there for some political or legal reason so they can say that the law isn't forcing the states to change their tax laws. But that clause has nothing to do with the proposed interstate sales tax itself, which would be based on a state's tax rate.
One last way of looking at this new tax issue: Currently, there is no interstate sales tax imposed by federal law. Period. If the law is enacted, there will be a federally imposed interstate sales tax.
3. As I've explained above, there is currently no sales tax on interstate sales (outside of a compact) so it is incorrect to say, "Voters who illegally avoid paying sales tax on interstate sales are generally opposed to the bill." It's not illegal to avoid sales tax in that case.
How about: "People who avoid paying sales tax on interstate sales are generally opposed to the new sales tax. (Even though they are usually required to pay a use tax on such purchases.)"
4. I'm not sure what the issue is. Go ahead edit that paragraph in the article and we'll work it from there.
5. Proposed language: “Small local retailers without online stores largely support the bill.”
I think it needs a little more specificity, and a reason why they support it. And it's not just small retailers, it's retailers of any size fitting that criteria, so just "Local retailers" or similar would be more accurate and concise. Also, I think we should mention that they would alternatively support elimination of sales taxes in their states as a remedy. Sparkie82 ( t• c) 03:03, 8 November 2012 (UTC)
References
I would like to clarify some misconceptions in this talk page. The following assertions appear to incorrect based on statutory law.
1 & 2. Sales tax is always paid by the seller, not the buyer. That is why it is called a sales tax. When a buyer pays a tax based on a percentage of a transaction, it is called an expenditure tax (which is very rare). Most states provide for the seller to itemize the sales tax but some states don't.
Here is a passage from New Jersey's Sales Tax Statute (N.J.S.A. 54-32B-12a)
Every person required to collect the tax shall collect the tax from the customer when collecting the price, service charge, amusement charge or rent to which it applies. If the customer is given any sales slip, invoice, receipt or other statement or memorandum of the price, service charge, amusement charge or rent paid or payable, the tax shall be stated, charged and shown separately on the first of such documents given to him. The tax shall be paid to the person required to collect it as trustee for and on account of the state.
Under New Jersey Law, the legal incidence of the tax is upon the purchaser. To say that the seller pays the tax is misleading because the seller does not incur the cost or expense of the tax. The term remit is used frequently by jurisdictions and by industry professionals and removes the implication that a seller incurs the tax expense. As for the states that don't allow sales tax itemization on the receipt or invoice, please provide examples. Stating the sales tax on an invoice is usually a requirement of collection and is also the first line of defense during an audit.
Some tax structures, similar to sales tax, place the legal incidence of tax directly on the seller. Arizon'a Business Privilege Tax is a tax imposed on the privilege of doing business in the state of Arizona. The seller is obligated to bear the cost of tax based on their gross receipts and any reimbursement provided by the buyer is a private matter between the seller and buyer. Although sales tax and business privilege tax are similar, they do have their differences. In a practical sense, Arizona can use the legal incidence on sellers to shield itself from Commerce Clause violations ( Saban Rent-a-Car v. Arizona Department of Revenue and Arizona Sports and Tourism Authority
I also have a disagreement with the claims that The Marketplace Fairness Act is a new tax. After reading the bill, the intent is very clear.
The Statement of Purpose reads:
To restore States' sovereign rights to enforce State and local sales and use tax laws, and for other purposes
SECTION 2. SENSE OF CONGRESS. It is the sense of Congress that States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted, and the right to collect - or decide not to collect - taxes that are already owed under State law.
Judges must interpret laws based on the letter of the law and the spirit of the law. If the federal government was imposing a new tax, one would have to argue that it was congress's intent to create a new tax. There is absolutely no indication or intention of a new tax in the present form of S. 1832. Besides, for the bill to become a new tax, it would require some basic elements such as a tax rate, tax base, and imposition statute. None of these things are present in the bills current form.
Regarding the assertion that S. 1832 is a sales tax on interstate commerce, this talk page differentiates sales tax from use tax. It is true that states do not have the right to tax interstate commerce. That's congress's job, and they make it clear that they want to keep it that way. The Marketplace Fairness Act does not permit states from exercising any authority over interstate commerce (§5(c)(4).
(c) LICENSING AND REGULATORY REQUIREMENTS.— Other than the limitation set forth in subsection (a), and section 3, nothing in this Act shall be construed as permitting or prohibiting a State from— (4) exercising authority over matters of interstate commerce.
This limitation precludes states from collecting sales tax on interstate commerce because a state must have the authority to tax interstate commerce. Therefore, S. 1832 has little to do with a sales tax. This leaves the use tax, which is fundamentally what The Marketplace Fairness Act is upholding. Now there is an interstate component to collecting out-of-state use tax, but use tax is imposed on the use, consumption, or storage of tangible personal property in a given state and that is not commerce. Plus, focusing on use tax is more in line with the Quill v. North Dakota decision, where North Dakota attempted to impose use tax.
In order to more accurately reflect the nature and intent of The Marketplace Fairness Act, I suggest changing the introduction to the following:
The Marketplace Fairness Act, S.1832, is a bill introduced in the United States Senate on November 9, 2011, that would provide states with the authority to require out-of-state retailers to collect and remit use tax on purchases shipped into the state. In return, states would be required to either join the Streamlined Sales and Use Tax Agreement or simplify their sales and use tax laws to comply with The Marketplace Fairness Act.
The bill would require any seller who sells a product or service to a consumer in a participating state to calculate, collect, and remit the consumer's use tax based on the tax rates of that other state. The purpose of the proposed law is to allow states to enforce use taxes that consumers often evade paying their home state when making interstate purchases.
Statement of purpose:
To restore States' sovereign rights to enforce State and local sales and use tax laws, and for other purposes. . . .
SECTION 2. SENSE OF CONGRESS. It is the sense of Congress that States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted, and the right to collect - or decide not to collect - taxes that are already owed under state law.
Opponents are concerned that the bill would impose an unrealistic burden on sellers and consumers, while proponents say that it would help retailers with a physical presence in sales-tax states to compete with online retailers.
````Tonys667
Why is it necessary to list the people running for office against the supporters of this bill? That seems superfluous. — Preceding unsigned comment added by 66.51.182.41 ( talk) 22:27, 4 April 2013 (UTC)
Hi All! I just finished creating a disambiguation page for this article to separate it from the new "Marketplace Fairness Act of 2013" article that is about a newer version of this bill in the 113th Congress. This bill (S.1832) died in the last Congress (112th) and never became law. The new bill, with its new cosponsors, new congresspeople in office, and a brand new fight over passage should be distinguished from the old dead one. Based on the comparative page statistics, it seemed like most people looking for information about that bill (which is in a the news a lot now - there is a vote scheduled in the Senate for later today) were getting this old bill rather than that article about the new one. I created the disambiguation page to help people get up to date information and try to clarify things. If anyone wants to comment on this decision, I'd love to hear it. If you want to make the disambiguation page look nicer, that'd be great too - it's my first one. Thanks! HistoricMN44 ( talk) 18:20, 23 April 2013 (UTC)
There are 2 paragraphs (181 words) describing support for the MFA and 10 paragraphs (886 words) describing opposition to it. I find it hard to believe that our treatment isn't giving WP:UNDUE weight to MFA opponents. RJaguar3 | u | t 04:13, 23 November 2013 (UTC)
I'm wondering if there would be any consensus for a fairly drastic reduction of the both the 'supporters' and 'opponents' sections. First, both sections have NPOV problems, and seem to have to been edited by users who seem to be here to promote their respective POVs. Secondly, for an article that is supposed to be about proposed legislation, the rather large lists of supporters and opponents kind of overwhelm the content that is actually about said legislation, potentially in violation of WP:UNDUE. I mean, not every person or group that has ever been quoted about the legislation needs to have their own paragraph here, right? I'm very tempted to BOLDLY remove both sections and work on shrinking them down. Good idea? Bad idea? Couldn't care less? Please let me know. Cheers, Dawn Bard ( talk) 00:04, 7 October 2014 (UTC)
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@Sparkie82: Can you please explain what your concerns were regarding the edits I made to this page and why you reverted them? That way I can respond to your concerns and explain my reasoning. Erincg ( talk) 21:10, 12 October 2012 (UTC)
Thank you for your comments.
1. & 2. re: who pays sales tax -- Let me provide some more examples to help illustrate this because many people have this misunderstanding. When I ship a package using UPS, I pay them a certain amount to ship it. They collect this money, along with money from many other customers and they put my package on the jet and send it across the country. Some of the money they collect from their customers is used to pay for the fuel for the jet. Who paid for the fuel? Well, you could say, euphemistically, that UPS's customers pay their fuel bill, but actually UPS pays the fuel bill. Some time ago when fuel prices started to fluctuate too much, UPS began to itemize their fuel costs on their customer's bill, calling it a fuel surcharge. The itemization of that cost on their customer's bills did not change the fact that UPS, not their customers, paid their fuel bill.
In some jurisdictions, it is forbidden for sellers to itemize sales tax on their customer's receipts. The cost of the tax is part of the sellers selling expenses, but the customer never sees it itemized on their receipts. When the seller remits sales tax to the state (or city), they fill out a form that asks what their gross sales were for the period, then multiply that by the sales tax rate and remit that amount to the state. Who pays that tax? You could say, euphemistically, that their customers are paying the tax, and the customers are paying the seller's light bill and the customers are paying her lease and her employee's salaries, etc., but actually the sellers pays for all those things.
In jurisdictions that allow sellers to itemize the tax on customer receipts, everything is the same: the seller takes in money from customers and when they pay the sales tax to the state they must fill out a form that asks what their gross sales were for the period, then they multiply that by the sales tax rate and remit that amount to the state. If they didn't charge tax for something they should have, they still have to pay the tax.
Another completely different way of explaining it -- What is the definition of remit? It means to pay or send payment. When you get a bill from your utility company, it asks you to remit payment to some address. Now, reread your comments above, substituting the word pay in place of remit.
Regarding NY state sales tax law, you said:
the New York State Dept. of Taxation and Finance says this about sales and use tax: "Sales and use tax generally applies to products and services that you purchase within or outside New York that are delivered or used in the state and on which the seller does not collect sales tax.
It said, "sales and use tax", not "sales tax". Generally, state statutes are written so that when a resident brings something into the state to use, they must pay a use tax (set at the same rate as the sales tax). If the seller pays sales tax to the state, then the use tax is not charged. (I'm not sure exactly how NY's laws are worded without doing a bunch of research.) Use tax is paid by the user (the buyer), sales tax is paid by the seller, and the laws are written in such a way so that the two are mutually exclusive so that the seller doesn't have to pay sales tax on something that the buyer also pays use tax on. But they are two different animals.
The reason why states have use tax at all is because they are forbidden from imposing sales tax on sellers who are not in their state. (See Commerce Clause and Quill v. N. Dakota) That's why they have a use tax, so they can collect taxes when something is purchased via interstate commerce. (When the seller has a physical presence in the state, then the transaction is not interstate commerce, even if the product itself is shipped from another state. It's considered a sale from the seller in the state, to a customer in the state; not interstate.) The sources you cited are not authoritative on the subject, you need to read the U.S. Constitution, and court opinions addressing the Commerce Clause, and the state statutes.
Regarding new tax, you said:
The bill also says "(d) No New Taxes- Nothing in this Act shall be construed as encouraging a State to impose sales and use taxes on any goods or services not subject to taxation prior to the date of the enactment of this Act." [5] Given that language, can we agree that this isn't a new tax? (If interstate sales weren't already subject to sales tax, this bill wouldn't change that.)
Again, that quote refers to sales and use tax. The phrase "No New Taxes" is merely a subsection title, kind of like "Marketplace Fairness Act", or "Streamlined Sales and Use Tax Agreement". The titles used in these laws are generally sales gimmicks and often misleading. (E.g., the Streamlined Sales and Use Tax Agreement is 203-pages long!) Also, that subsection is referring to the scope of a state's sales tax, i.e., which goods are taxed. Some states exempt food or clothing or whatever from sales tax and they are trying to get states to standardize on the scope. Apparently, the language, "construed as encouraging a State to impose... not subject to taxation prior.." is in there for some political or legal reason so they can say that the law isn't forcing the states to change their tax laws. But that clause has nothing to do with the proposed interstate sales tax itself, which would be based on a state's tax rate.
One last way of looking at this new tax issue: Currently, there is no interstate sales tax imposed by federal law. Period. If the law is enacted, there will be a federally imposed interstate sales tax.
3. As I've explained above, there is currently no sales tax on interstate sales (outside of a compact) so it is incorrect to say, "Voters who illegally avoid paying sales tax on interstate sales are generally opposed to the bill." It's not illegal to avoid sales tax in that case.
How about: "People who avoid paying sales tax on interstate sales are generally opposed to the new sales tax. (Even though they are usually required to pay a use tax on such purchases.)"
4. I'm not sure what the issue is. Go ahead edit that paragraph in the article and we'll work it from there.
5. Proposed language: “Small local retailers without online stores largely support the bill.”
I think it needs a little more specificity, and a reason why they support it. And it's not just small retailers, it's retailers of any size fitting that criteria, so just "Local retailers" or similar would be more accurate and concise. Also, I think we should mention that they would alternatively support elimination of sales taxes in their states as a remedy. Sparkie82 ( t• c) 03:03, 8 November 2012 (UTC)
References
I would like to clarify some misconceptions in this talk page. The following assertions appear to incorrect based on statutory law.
1 & 2. Sales tax is always paid by the seller, not the buyer. That is why it is called a sales tax. When a buyer pays a tax based on a percentage of a transaction, it is called an expenditure tax (which is very rare). Most states provide for the seller to itemize the sales tax but some states don't.
Here is a passage from New Jersey's Sales Tax Statute (N.J.S.A. 54-32B-12a)
Every person required to collect the tax shall collect the tax from the customer when collecting the price, service charge, amusement charge or rent to which it applies. If the customer is given any sales slip, invoice, receipt or other statement or memorandum of the price, service charge, amusement charge or rent paid or payable, the tax shall be stated, charged and shown separately on the first of such documents given to him. The tax shall be paid to the person required to collect it as trustee for and on account of the state.
Under New Jersey Law, the legal incidence of the tax is upon the purchaser. To say that the seller pays the tax is misleading because the seller does not incur the cost or expense of the tax. The term remit is used frequently by jurisdictions and by industry professionals and removes the implication that a seller incurs the tax expense. As for the states that don't allow sales tax itemization on the receipt or invoice, please provide examples. Stating the sales tax on an invoice is usually a requirement of collection and is also the first line of defense during an audit.
Some tax structures, similar to sales tax, place the legal incidence of tax directly on the seller. Arizon'a Business Privilege Tax is a tax imposed on the privilege of doing business in the state of Arizona. The seller is obligated to bear the cost of tax based on their gross receipts and any reimbursement provided by the buyer is a private matter between the seller and buyer. Although sales tax and business privilege tax are similar, they do have their differences. In a practical sense, Arizona can use the legal incidence on sellers to shield itself from Commerce Clause violations ( Saban Rent-a-Car v. Arizona Department of Revenue and Arizona Sports and Tourism Authority
I also have a disagreement with the claims that The Marketplace Fairness Act is a new tax. After reading the bill, the intent is very clear.
The Statement of Purpose reads:
To restore States' sovereign rights to enforce State and local sales and use tax laws, and for other purposes
SECTION 2. SENSE OF CONGRESS. It is the sense of Congress that States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted, and the right to collect - or decide not to collect - taxes that are already owed under State law.
Judges must interpret laws based on the letter of the law and the spirit of the law. If the federal government was imposing a new tax, one would have to argue that it was congress's intent to create a new tax. There is absolutely no indication or intention of a new tax in the present form of S. 1832. Besides, for the bill to become a new tax, it would require some basic elements such as a tax rate, tax base, and imposition statute. None of these things are present in the bills current form.
Regarding the assertion that S. 1832 is a sales tax on interstate commerce, this talk page differentiates sales tax from use tax. It is true that states do not have the right to tax interstate commerce. That's congress's job, and they make it clear that they want to keep it that way. The Marketplace Fairness Act does not permit states from exercising any authority over interstate commerce (§5(c)(4).
(c) LICENSING AND REGULATORY REQUIREMENTS.— Other than the limitation set forth in subsection (a), and section 3, nothing in this Act shall be construed as permitting or prohibiting a State from— (4) exercising authority over matters of interstate commerce.
This limitation precludes states from collecting sales tax on interstate commerce because a state must have the authority to tax interstate commerce. Therefore, S. 1832 has little to do with a sales tax. This leaves the use tax, which is fundamentally what The Marketplace Fairness Act is upholding. Now there is an interstate component to collecting out-of-state use tax, but use tax is imposed on the use, consumption, or storage of tangible personal property in a given state and that is not commerce. Plus, focusing on use tax is more in line with the Quill v. North Dakota decision, where North Dakota attempted to impose use tax.
In order to more accurately reflect the nature and intent of The Marketplace Fairness Act, I suggest changing the introduction to the following:
The Marketplace Fairness Act, S.1832, is a bill introduced in the United States Senate on November 9, 2011, that would provide states with the authority to require out-of-state retailers to collect and remit use tax on purchases shipped into the state. In return, states would be required to either join the Streamlined Sales and Use Tax Agreement or simplify their sales and use tax laws to comply with The Marketplace Fairness Act.
The bill would require any seller who sells a product or service to a consumer in a participating state to calculate, collect, and remit the consumer's use tax based on the tax rates of that other state. The purpose of the proposed law is to allow states to enforce use taxes that consumers often evade paying their home state when making interstate purchases.
Statement of purpose:
To restore States' sovereign rights to enforce State and local sales and use tax laws, and for other purposes. . . .
SECTION 2. SENSE OF CONGRESS. It is the sense of Congress that States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted, and the right to collect - or decide not to collect - taxes that are already owed under state law.
Opponents are concerned that the bill would impose an unrealistic burden on sellers and consumers, while proponents say that it would help retailers with a physical presence in sales-tax states to compete with online retailers.
````Tonys667
Why is it necessary to list the people running for office against the supporters of this bill? That seems superfluous. — Preceding unsigned comment added by 66.51.182.41 ( talk) 22:27, 4 April 2013 (UTC)
Hi All! I just finished creating a disambiguation page for this article to separate it from the new "Marketplace Fairness Act of 2013" article that is about a newer version of this bill in the 113th Congress. This bill (S.1832) died in the last Congress (112th) and never became law. The new bill, with its new cosponsors, new congresspeople in office, and a brand new fight over passage should be distinguished from the old dead one. Based on the comparative page statistics, it seemed like most people looking for information about that bill (which is in a the news a lot now - there is a vote scheduled in the Senate for later today) were getting this old bill rather than that article about the new one. I created the disambiguation page to help people get up to date information and try to clarify things. If anyone wants to comment on this decision, I'd love to hear it. If you want to make the disambiguation page look nicer, that'd be great too - it's my first one. Thanks! HistoricMN44 ( talk) 18:20, 23 April 2013 (UTC)
There are 2 paragraphs (181 words) describing support for the MFA and 10 paragraphs (886 words) describing opposition to it. I find it hard to believe that our treatment isn't giving WP:UNDUE weight to MFA opponents. RJaguar3 | u | t 04:13, 23 November 2013 (UTC)
I'm wondering if there would be any consensus for a fairly drastic reduction of the both the 'supporters' and 'opponents' sections. First, both sections have NPOV problems, and seem to have to been edited by users who seem to be here to promote their respective POVs. Secondly, for an article that is supposed to be about proposed legislation, the rather large lists of supporters and opponents kind of overwhelm the content that is actually about said legislation, potentially in violation of WP:UNDUE. I mean, not every person or group that has ever been quoted about the legislation needs to have their own paragraph here, right? I'm very tempted to BOLDLY remove both sections and work on shrinking them down. Good idea? Bad idea? Couldn't care less? Please let me know. Cheers, Dawn Bard ( talk) 00:04, 7 October 2014 (UTC)
-- John Broughton (♫♫) 00:08, 26 May 2016 (UTC)
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(last update: 18 January 2022).
Cheers.— InternetArchiveBot ( Report bug) 16:38, 18 January 2018 (UTC)
This bill for this article is from a decade ago and motivated by two court cases that are now overruled by the 2018 South Dakota v. Wayfair decision.