Brian Dake

The United States Supreme Court recently ruled in South Dakota v. Wayfair, Inc., that a state can require out-of-state sellers without a physical presence in that state (i.e., remote sellers) to collect and remit sales or use tax on sales delivered into that state.

Beginning October 1, 2018, Wisconsin will require remote sellers to collect and remit sales or use tax on sales of taxable products and services in Wisconsin.  New standards for administering sales tax laws on remote sellers will be developed by rule.

The rule will be consistent with the Court’s decision in Wayfair, which approved a small seller exception for sellers who do not have annual sales of products and services into the state of (1) more than $100,000, or (2) 200 or more separate transactions. Any small seller exception adopted will not apply to sellers with a physical presence in Wisconsin.

Governor Scott Walker today announced that more than 555,000 families will be receiving $100-per-child before the start of next school year because of the Child Tax Rebate.

Parents who claimed their $100-Per-Child Tax Rebate will receive a check in the mail or a direct deposit before the start of next school year. Those eligible for the Child Tax Rebate needed to apply by July 2, 2018.

There will also be a Back-to-School Sales Tax Holiday for everyone from August 1 – 5, 2018. This means the state sales tax will not be charged for those days on school supplies where each item is $75 or less, clothing where each item is $75 or less, computers where each item is $750 or less, and computer supplies where each item is $250 or less.

Foxconn Technology Group (Foxconn) Founder and CEO Terry Gou formally broke ground for the Wisconn Valley Science and Technology Park in Racine County, Wisconsin. President Donald J. Trump, House Speaker Paul Ryan, and Wisconsin Governor Scott Walker joined Mr. Gou in marking the start of construction of the campus which will create 13,000 jobs in Wisconsin with $10 billion investment and thousands of more jobs through the extensive supply chain supporting this project.

“We are proud to mark this historic occasion and formally start construction of our state-of-the-art science and technology campus in America’s heartland,” said Foxconn Founder and CEO Terry Gou. “Over the past year, we have formed strong partnerships with communities across Wisconsin and we look forward to continuing to work with the talented, hard-working people here in the years ahead. We thank President Trump, Governor Walker, and Speaker Ryan for their commitment to this  project that will help reinvigorate high-tech manufacturing in the U.S. and the high-tech industry in the Midwest.”

As part of the company’s ‘Wisconsin First’ approach, Foxconn is actively working with local partners and tapping the talented and hardworking workforce in the state. It has started assembling a team of companies with strong track records in Wisconsin to support the development and construction of the Wisconn Valley Science and Technology Park.

The Wisconn Valley Science and Technology Park will also serve as a science and technology park to promote research and development in advanced technologies in areas such as cloud computing, mobile devices, Internet of Things, Big Data, artificial intelligence (AI), networks, and robotics and automation. It will lay the foundation for the AI 8K+5G ecosystem that Foxconn is creating in the United States, and provide a platform for the development of next-generation hardware and solutions as part of that ecosystem. In addition, it will serve as an industry internet platform to enable hundreds of thousands of small and medium size manufacturers to be part of the advanced manufacturing in the Midwest and in America.

The Wisconsin Supreme Court decision in Tetra Tech, Inc. v. Wisconsin Department of Revenue ends deference to agency conclusions of law in the state of Wisconsin.

WILL filed an amicus curiae brief with the Court arguing court deference to agency interpretations of state statutes is unconstitutional. The brief said, in part, “Collapsing the making of policy into its administration places that decision in the hands of an interested party and is inconsistent with the “auxiliary precautions” that underlie the separation of powers adopted by the framers of Wisconsin’s Constitution.”

WILL President and General Counsel Rick Esenberg said in response to the Court’s decision:

“Today’s decision limits the prerogatives of administrators and brings us a little closer to the system of government our founders envisioned. Basic American civics and the separation of powers require that each branch of government stay in its lane. Deferring to the legal conclusions of administrative agencies combined the executive and judicial powers in the hands of bureaucrats. The Court was correct to end it, as we argued in our amicus brief.”

Wisconsin courts for decades have chosen to defer to the interpretations of state statutes offered by administrative agencies, even when those agencies are enforcing those statutes against private citizens. They have often done so even when the agency interpretation was less reasonable than alternative readings of the law.  Although several of the Justices chose to avoid the constitutional issue and rule as a matter of judicial policy, the bottom line is that the Court acted today to ensure that the judicial power – including the power to have the final say on what a statute means – resides exclusively in the courts, not the executive branch.

Today’s decision is part of a broader reevaluation of agency deference occurring in both state and federal courts. For example, Mississippi’s high court recently ended agency deference. Federal courts are also beginning to grapple with the question.

This judicial reevaluation of agency authority is independent of, but consistent with, a more general re-examination of the administrative state, including legislative initiatives such as the REINS Act in Wisconsin. Both the federal and Wisconsin constitutions recognize that freedom is preserved not only by the delineation of individual rights but by structural limits on the power of government. The separation of powers – in which each branch “checks” and “balances” the others – is an important part of the way in which these limits act as, in James Madison’s words, “an auxiliary precaution” against the abuse of government power.

Harley-Davidson, up against spiraling costs from tariffs, will begin to shift its production of motorcycles that are bound for Europe from the U.S. to factories overseas.

The European Union began on Friday to roll out tariffs on American imports like bourbon, peanut butter and orange juice. The EU tariffs on $3.4 billion worth of U.S. products come in retaliation to the duties the Trump administration has imposed on European steel and aluminum.

Harley-Davidson Inc. sold almost 40,000 motorcycles in the European Union last year. The revenue the company generated from those sales was second only to that generated in the United States, according to the Milwaukee company.

The motorcycle maker said in a regulatory filing on Monday that EU tariffs on motorcycles it exports from the U.S. have jumped by between 6 percent and 31 percent. That raises the cost of each motorcycle by $2,200 on average.

“Harley-Davidson maintains a strong commitment to U.S.-based manufacturing which is valued by riders globally,” the company said in prepared remarks. “Increasing international production to alleviate the EU tariff burden is not the company’s preference, but represents the only sustainable option to make its motorcycles accessible to customers in the EU and maintain a viable business in Europe. Europe is a critical market for Harley-Davidson.”

Harley-Davidson said it’s trying to avoid raising its prices to avert “an immediate and lasting detrimental impact” on sales in Europe. It will instead absorb much of the higher costs, at least in the short term. Company officials said they expect the cost for the rest of the year to run from $30 million to $45 million.

Harley-Davidson said it could take anywhere between nine and 18 months to complete its plan to move some of its production operations from the U.S. to factories overseas.

The company is already struggling with declining sales. In January, it said it would take its operation in Kansas City, Missouri, and move it to a plant in York, Pennsylvania. U.S. motorcycle sales peaked at more than 1.1 million in 2005 and dropped quickly during the recession.

Asked about Harley’s decision Monday, Gov. Scott Walker talked about tariffs in general but did not specifically discuss the company’s situation.

“The ultimate goal, if we could get there, is no tariffs or if anything few tariffs on anything,” said Walker, a Republican. “That’s what I’m going to push for, ways that we can get to a level playing field then we don’t have this tit for tat on any number of products out there.”

On Thursday the Supreme Court’s 5-4 ruling, which did not split along ideological lines, overturned the 1992 decision and said states can tax internet sales.

Yesterday, The U.S. Supreme Court handed down its anticipated decision in South Dakota v. Wayfair.

The case challenges South Dakota’s application of its sales tax to internet retailers who sell into South Dakota but have no property or employees in the state. At issue is the case Quill Corp. v. North Dakota from 1992, which set the property or employees standard for sales taxes using the Court’s (debated) dormant commerce clause power to restrict state taxation of interstate commerce.

Drumroll…South Dakota won. The Court laid out why South Dakota’s law is no burden to interstate commerce but made clear that more complex or overreaching laws would be. This was not too surprising, as during oral argument the justices expressed such frustration with the issue that it’s easy to see why they wouldn’t want this to be just the first of many cases. Better to articulate the rule well here.

As Justice Kennedy’s opinion states:

That said, South Dakota’s tax system includes several features that appear designed to prevent discrimination against or undue burdens upon interstate commerce. First, the Act applies a safe harbor to those who transact only limited business in South Dakota. Second, the Act ensures that no obligation to remit the sales tax may be applied retroactively. S. B. 106, §5. Third, South Dakota is one of more than 20 States that have adopted the Streamlined Sales and Use Tax Agreement. This system standardizes taxes to reduce administrative and compliance costs: It requires a single, state-level tax administration, uniform definitions of products and services, simplified tax rate structures, and other uniform rules. It also provides sellers access to sales tax administration software paid for by the State. Sellers who choose to use such software are immune from audit liability. See App. 26–27. Any remaining claims regarding the application of the Commerce Clause in the absence of Quill and Bellas Hess may be addressed in the first instance on remand.

The majority opinion, which twice cited the Tax Foundation’s brief, was authored by Justice Anthony Kennedy, joined by Justices Clarence Thomas, Samuel Alito, Ruth Bader Ginsburg, and Neil Gorsuch. Justice Thomas concurred to write that he should have joined the Quill dissent in 1992. Justice Gorsuch concurred, joining the majority in full and adding that he questions Commerce Clause doctrine. Four justices (Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan) dissented, agreeing that the Court got it wrong before but arguing that Congress should fix it.

President Trump’s plans to hit China with $200 billion more in tariffs is roiling global markets, angering business groups and putting lawmakers on edge in an important election year.

Trump doubled down on Tuesday, telling a group of business leaders it is time for the U.S. to get tough on China for its unwillingness to change aggressive and unfair trade policies.

“We’re going to get smart, and we’re going to do it right,” Trump told the National Federation of Independent Business in Washington.

Trump said China could still reach out to make a deal, but he saw no signs that would happen.

“We have no choice with China, it’s time folks, it’s time,” he insisted.

Trump’s comments come after he directed U.S. Trade Representative Robert Lighthizer on Monday to identify $200 billion worth of Chinese goods for a 10 percent import tax.

Business groups, which have expressed open frustration with Trump’s trade policies, called on lawmakers to quickly intervene and take more oversight on tariff decisions.

The National Foreign Trade Council (NFTC) was one of a wide range of business groups — from footwear to bankers, oil and automakers — blasting the threatened tariffs and calling for greater congressional control over Trump’s trade policies.

“We strongly believe that, in order to change the current path that the administration has chosen to take on trade, Congress must reassert itself and oversee our country’s trade policy, especially the use of unilateral tariffs,” said Rufus Yerxa, president of the NFTC, in a letter to trade lawmakers signed by more than 60 of the group’s members.

The National Retail Federation also urged lawmakers to act to prevent a trade war. President and CEO Matthew Shay said the tariffs “threaten to sap the energy out of the strong U.S. economy just as most Americans are starting to enjoy the benefits of historic tax reform.”