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The Marketplace Fairness Act’s audit risk

Photo of Kevin Hickey
Kevin Hickey
CEO, Online Stores Inc.
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      Kevin Hickey

      Kevin Hickey is CEO of Online Stores Inc., a top 500 Online Retailer he founded with his wife Lisa in 2002. A 16 year veteran of web sites and ecommerce, Kevin Hickey is knowledgeable in all aspects of website development, online marketing, merchandising, product sourcing, and order fulfillment. He manages and directs the company’s marketing, financing, purchasing and website development activities. He has spoken at a number of Internet Retailer conferences on sourcing and marketing subject matter. Kevin Hickey is a leading opponent of the inappropriately named Marketplace Fairness Act. He is a founding member of the eMainStreet Alliance, a group of over 100 retailers including both online and bricks and mortar companies opposed to the Act.

Recently the Marketplace Fairness Act (MFA) passed the US Senate. The bill is currently being considered by the House Judiciary Committee chaired by Bob Goodlatte. If it passes, the MFA will require small businesses like mine to become tax collectors for over 10,000 taxing jurisdictions and it would subject us to audits from 46 states, 6 territories, and over 500 Native American tribal nations. I’ve been through a sales tax audit in my home state of Pennsylvania and it was one of the most unpleasant experiences of my life. My audit experience is the foremost reason why I helped found the eMainStreet Alliance – a coalition of over 650 small businesses who have joined forces to expose the harm of the MFA.

People who have never been through a sales tax audit — including many members of Congress — simply don’t understand what a nightmare it is. But I know the burdens and costs first hand.

My company, Online Stores, Inc., has always collected Pennsylvania sales taxes and has never skirted the law. But when we were audited, the auditor was determined to find every possible way to extract money from us. She spent 160 hours sitting in our offices scouring over invoices in an effort to find errors and levy penalties on us.

She cited obscure, confusing, and often contradictory case law to try and prove we had skirted the law. We sell American flags and U.S. military flags online and through a catalog. Even though the Pennsylvania law clearly states that these items are tax exempt, the auditor insisted that historical U.S. flags and official U.S. military flags are not exempt. She also asserted that all shipping charges were taxable, even when orders included products that were tax exempt. But the case law was unclear on this issue – and still is! It didn’t matter. She fined us for nonpayment and noncompliance.

When she was done, she handed us a bill for over $25,000 dollars for uncollected sales taxes, penalties, and interest. The entire $25,000 was due immediately and she told us that if we disagreed with her findings, we had to file an appeal with the state Department of Revenue. We did appeal the ruling and that appeals process was frustrating, time-consuming, and costly.

If the MFA passes, this experience would be multiplied exponentially for thousands of small businesses like mine. We’ll be vulnerable to auditors in states where we have no presence, no voting rights and no representation. To make matters worse, if we make mistakes, many remote states can “pierce the corporate veil” and confiscate our personal possessions in order to satisfy their demands. In other words, we are personally responsible for the taxes whether or not we collect them from our customers. This is taxation without representation.