Leveling the Playing Field: A Business Perspective on Taxing E-Commerce

I. INTRODUCTION This Symposium reminds me of a comical baseball story. You may not believe this is true, but it really happened about ten years ago. It involved a rookie umpire in his first professional baseball game. It was in the minor leagues, I think Double A, and he was assigned as the second base umpire. In either the second or third inning with a man on second and one out, the batter hit a towering fly ball down the third base line. The runner assumed it was over the fence, going to hit the wall, or, at least, land in fair territory deep in the corner of left field and took off to score. He was almost to third base going fill speed when the left fielder made an incredible circus catch at the wall right on the foul line. The runner turned on a dime and headed back to second base to avoid a double play. The left fielder fired a perfect strike, and the runner and the ball arrived at second base at exactly the same time in a big cloud of dust. The umpire stood silently and made no gesture. Finally, the runner looked up at him with his hand still on the base and said, "Well, what is it?" The umpire said, "I don't know, I can't tell." The second baseman demanded, "What are you going to do?" By now the home plate umpire, who was really in charge, appeared on the scene and said, "Yeah, what are you going to do?" The rookie umpire responded sheepishly, "Well, I guess we're going to do it over." The second base umpire took the base runner back to third base, looked for his footprints, and had him stand right where he had been when the catch was made. He took the left fielder back to the wall, gave him the ball, and put him in exactly the spot where he made the catch. He then went back and took his position behind second base and yelled, "Now, when I say go, you throw the ball, and you start running." He gave a hand signal and a loud "Go!" The base runner took off, and the throw was made. There was another cloud of dust, another flurry of activity, and the umpire screamed as loud as he could, "You're out!" an inning-ending double play. Why does this Symposium remind me of that story? Because, as a company, we hate tax law "do-overs." We like uniformity, freedom from ambiguity, and certainty. Too frequently, governing authorities decide that they did not quite get things right and that it is time to do it over, try it again, make a new call. I believe one of the reasons Congress created the Advisory Commission on Electronic Commerce was to avoid a disruptive "do-over" situation, hopefully giving clear signals to companies and taxpayers involved in Internet commerce. II. INTERNET COMMERCE VIEWPOINTS A. Background 1. Franklin Covey Before discussing the various viewpoints relating to e-commerce taxation, it would be helpful to understand the business background that shapes my own view. Electronic commerce is a substantial part of the future of our company. We currently operate a hundred and thirty retail stores in almost all of the states. We have a healthy catalog mail order business, and we send out about ten million catalogs to our user database each year. We have a seminar training division. We conduct public and corporate seminars in all fifty states and twenty additional countries. We have headquarters in many of the countries in which we operate. We have licensees throughout the world. We train about forty thousand people per month in our public seminars in all of the major U.S. cities. We deliver fifteen million Franklin planners to students in school districts all over the United States and Canada. As we speak, we have developers working to prepare our training curricula to be delivered over the Internet as real time interactive training opportunities. As tax experts, you can draw two conclusions from all of these facts. First, the Internet is important to us, with e-commerce taxation becoming more important to us every day. Second, with our broad, national sales efforts, the states take the position that we have nexus everywhere. …