H. R. 2887
IN THE HOUSE OF REPRESENTATIVES
June 12, 2017
Mr. Sensenbrenner (for himself, Mr. Goodlatte, Mr. DesJarlais, Mr. McClintock, Mr. Grothman, Mr. Meadows, Mr. Conaway, and Mr. Trott) introduced the following bill; which was referred to the Committee on the Judiciary
To regulate certain State impositions on interstate commerce.
This Act may be cited as the
No Regulation Without Representation Act of 2017.
Minimum jurisdictional standards for State and local taxation and regulation of items in interstate commerce
To the extent otherwise permissible under Federal law, a State may tax or regulate a person’s activity in interstate commerce only when such person is physically present in the State during the period in which the tax or regulation is imposed.
Requirements for physical presence
For purposes of subsection (a), a person has a physical presence in a State only if such person’s business activities in the State include any of the following during the calendar year—
maintaining its commercial or legal domicile in the State;
owning, holding a leasehold interest in, or maintaining real property such as an office, retail store, warehouse, distribution center, manufacturing operation, or assembly facility in the State;
leasing or owning tangible personal property (other than computer software) of more than de minimis value in the State;
having one or more employees, agents, or independent contractors present in the State who provide on-site design, installation, or repair services on behalf of the remote seller;
having one or more employees, exclusive agents or exclusive independent contractors present in the State who engage in activities that substantially assist the person to establish or maintain a market in the State; or
regularly employing in the State three or more employees for any purpose.
De minimis physical presence
For purposes of this section, the term physical presence shall not include—
entering into an agreement under which a person, for a commission or other consideration, directly or indirectly refers potential purchasers to a person outside the State, whether by an Internet-based link or platform, Internet Web site or otherwise;
any presence in a State, as described in section 2(b)(1), for less than 15 days in a taxable year (or a greater number of days if provided by State law);
product placement, setup, or other services offered in connection with delivery of products by an interstate or in-State carrier or other service provider;
Internet advertising services provided by in-State residents which are not exclusively directed towards, or do not solicit exclusively, in-State customers;
ownership by a person outside the State of an interest in a limited liability company or similar entity organized or with a physical presence in the State;
the furnishing of information to customers or affiliates in such State, or the coverage of events or other gathering of information in such State by such person, or his representative, which information is used or disseminated from a point outside the State; or
business activities directly relating to such person's potential or actual purchase of goods or services within the State if the final decision to purchase is made outside the State.
Protection of non-Sellers
A State may not impose or assess a sales, use, or similar tax on a person or impose an obligation to collect or report any information with respect thereto, unless such person is either a purchaser or a seller having a physical presence in the State.
The district courts of the United States shall have original jurisdiction over civil actions to enforce the provisions of this Act, including authority to issue declaratory judgments pursuant to section 2201 of title 28, United States Code, and, notwithstanding the provisions of section 1341 of such title, injunctive relief, as necessary to carry out any provision of this Act.
Definitions and effective date
For purposes of this Act:
The term marketplace provider includes any person, other than a seller, who facilitates a sale. For purposes of this subsection, a person facilitates a sale when the person both—
lists or advertises products for sale in any forum, including a catalog or Internet Web site; and
either directly or indirectly through agreements or arrangements with third parties, collects gross receipts from the customer and transmits those receipts to the marketplace seller, whether or not such person deducts any fees or other amounts from those receipts prior to transferring them to the marketplace seller.
The term marketplace seller means a person that has any sales facilitated by a marketplace provider.
The term person has the meaning given such term by section 1 of title 1, United States Code. Each corporation that is a member of a group of affiliated corporations, whether unitary or not, is itself a separate person.
The term product includes any good or service, tangible or intangible.
The term referrer shall mean every person who—
contracts or otherwise agrees with a seller to list multiple products for sale and the sales prices thereof in any forum, including a catalog or Internet Web site;
receives a fee, commission, or other consideration from a seller for the listing;
transfers, via telephone, Internet link, or otherwise, a customer to the seller or the seller’s Web site to complete a purchase; and
does not collect receipts from the customer for the transaction.
The term regulate means to impose a standard or requirement on the production, manufacture or post-sale disposal of any product sold or offered for sale in interstate commerce as a condition of sale in a State when—
such production or manufacture occurs in another State;
such requirement is in addition to the requirements applicable to such production or manufacture pursuant to Federal law and the laws of the State and locality in which such production or manufacture occurs;
such imposition is not otherwise expressly permitted by Federal law; and
such requirement is enforced by a State’s executive branch or its agents or contractors.
The term seller does not include—
any marketplace provider (except with respect to the sale through the marketplace of products owned by the marketplace provider);
any carrier, in which the seller does not have an ownership interest, providing transportation or delivery services with respect to tangible personal property; and
any credit card issuer, transaction or billing processor, or other financial intermediary.
The term similar tax means a tax that is imposed with respect to the sale or use of a product, regardless of whether the tax is imposed on the person making the sale or the purchaser, with the right or obligation of the person making the sale to obtain reimbursement for the amount of the tax from the purchaser at the time of the transaction.
The term State means the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States and includes any political subdivision thereof.
The term tax means to—
impose an obligation on a person for—
the collection of a sales, use, or similar tax; or
the reporting of any information with respect thereto;
assess a sales, use or similar tax on a person;
treat a person as doing business in a State for purposes of such a tax; or
impose on a business or its non-resident owners, directly or indirectly through mechanisms such as combined reporting or consolidated returns, a net income tax or any other business activity tax measured by the amount of, or economic results of, business or related activity conducted in or derived from sources in the State.
This Act shall apply with respect to calendar quarters beginning on or after January 1, 2018.