By the Associated Press:
Kansas Attorney General Derek Schmidt has issued a legal opinion declaring that a new and aggressive state policy for taxing online sales is invalid.
Top Republicans in the GOP-controlled Legislature immediately demanded Monday that Democratic governor Laura Kelly require the Department of Revenue to rescind the policy.
The department issued a notice in August saying any “remote seller” doing business with Kansas residents must collect state and local sales taxes and forward the revenues to the state, starting Tuesday. It cited a U.S. Supreme Court decision last year allowing states to collect such taxes.
The GOP attorney general said the department didn’t have the authority to impose such a policy through a notice.
Legislators included provisions on taxing internet sales in two tax-cutting bills this year, but Kelly vetoed both.
Revenue Secretary Mark Burghart issued a statement in response to the attorney general’s ruling:
“For the past 29 years, there has been overwhelming legislative support for re-establishing fairness in the obligation to collect and remit Kansas taxes between out-of-state retailers and Kansas retailers. Notice 19-04 simply informs out-of-state retailers of the law that overwhelmingly passed the Legislature in 2003 that ensures the obligation of out-of-state retailers to collect and remit the taxes that are due and owing. The Notice does not reflect a change in policy, but only restates long-established statutory provisions regarding the duty to collect and remit Kansas taxes.
Prior to the Wayfair decision, Kansas retailers were at a competitive disadvantage with out-of-state retailers. This Notice informs out-of-state retailers of the Wayfair result, which merely removed the constitutional physical presence requirement for such out-of-state retailers and thus leveled the playing field between in-state and out-of-state retailers.
Since the Wayfair decision, more than 3,200 out-of-state businesses have registered with the state to collect and pay taxes to Kansas. Almost 600 of those have registered since August 1, 2019 when the Notice was published.
The Department of Revenue cannot select which laws it enforces. Kansas statutes are presumed to be constitutional, and unless deemed otherwise by a court of competent jurisdiction, the Department is obligated to enforce the statutes enacted by the Legislature.”