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Sales Tax Simplification Implementing States

Minutes from Oklahoma City Meeting

May 17-18, 2002

The fifth meeting of the Implementing States was held on May 17-18, 2002 in Oklahoma City, Oklahoma. Votes of the Implementing States, reported in these minutes, were by unanimous voice vote unless otherwise indicated.

Delegates

Participants

Transcript


Delegates

The following State delegates participated in the meeting.

Alabama

Robert Brasfield, Association of County Commissions
Bettye Griggs, City of Birmingham
Michael Mason, Department of Revenue
Charles McDonald, Alabama Retail Association

Arkansas
Mary Cameron, Department of Finance and Administration

District of Columbia
William Bowie, Office of Tax and Revenue
Stephen P.B. Kranz, Council on State Taxation

Florida
Marshall Stranburg, Department of Revenue

Indiana
James Turner, Department of Revenue

Kentucky
Charlotte Quarles, Revenue Cabinet

Louisiana
Cynthia Bridges, Secretary, Department of Revenue
Raymond Tangney, Department of Revenue

Maine
Steve Murray, Maine Revenue Services

Maryland
Delegate Sheila Hixson
Senator Patrick Hogan
Kevin Hughes, Governor's Office
Stephen M. Cordi, Deputy Comptroller, Comptroller of Treasury

Michigan
Senator Joanne Emmons
Donna Donovan, Department of Treasury
Douglas Roberts, State Treasurer
Lucille Taylor, Governor's Office
Nancy M. Taylor, Department of Treasury

Minnesota
Jenny Engh, Department of Revenue

Nebraska
Mary Jane Egr, State Tax Commissioner, Department of Revenue

Nevada
Dino Di Cianno, Department of Taxation

New Jersey
Harold Fox, Division of Taxation

North Carolina
Charles Collins, Department of Revenue
Sabra Faires, Department of Revenue

North Dakota
Senator Dwight Cook
Representative David Drovdal
Senator Herb Urlacher

Ohio
Representative Sally Conway Kilbane
William Riesenberger, Department of Taxation

Oklahoma
Senator Angela Monson
Jerry Johnson, Vice Chairman, Tax Commission
Thomas Kemp, Jr., Chairman, Tax Commission
Tony Mastin, Tax Commission

Rhode Island
Robert Geruso, Division of Taxation

South Dakota
Senator H. Paul Dennert
Senator Royal McCracken
Representative Orville Smidt
Gary Viken, Secretary, Department of Revenue

Tennessee
Senator William Clabough
Representative Matthew Kisber
Jack Kopald, Assistant Attorney General
Loren Chumley, Department of Revenue

Texas
John Keel, Director, Legislative Budget Board
Billy Hamilton, Deputy Comptroller of Public Accounts

Utah
Senator Lyle W. Hillyard
Representative Wayne A. Harper
R. Bruce Johnson, Commissioner, State Tax Commission
James Olsen, Utah Retail Merchants Association

Washington
Will Rice, Acting Director, Department of Revenue

West Virginia
Thomas Obrokta, Jr., Department of Tax and Revenue
Dale Steager, General Counsel, Department of Tax and Revenue

Wisconsin
Diane L. Hardt, Department of Revenue

Wyoming
Representative Patricia Nagel
Daniel Noble, Department of Revenue

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Participants

The following additional individuals attended the meeting.

Jon W. Abolins, Vice President, Tax & Government Affairs, Taxware
Ken Beier, Project Manager, Multistate Tax Commission
Katherine M. Breaks, Manager, KPMG LLP
Dennis Brown, VP, State Government Relations, Equipment Leasing Association
Dan Bucks, Executive Director, Multistate Tax Commission
Jean Cantrell, Manager Government Affairs, Circuit City
Terry Charlton, Staff Attorney, Illinois Department of Revenue
Robert Cox, Deputy Executive Director, Kentucky Governor's Office for Economic Analysis
Joseph R. Crosby, Legislative Director, Committee on State Taxation
Jeff Dale, Policy Specialist, National Conference of State Legislatures
Cheryl Dorrance, Director of Research, Oklahoma Municipal League
Harley Duncan, Executive Director, Federation of Tax Administrators
Carolyn Elerson, Manager, Property/Sales&Use Taxes, FedEx Express Corporation
Joshua Ellis, Manager of Government Affairs, Sears
Dick Eppleman, Director- Government Markets, Vertex
Tripp Funderburk, Vice President, e-Fairness Coalition/The Washington Group
Kristin Goodin, Tax Counsel, Verizon
Dan John, Tax Policy Manager, Idaho State Tax Commission
Eleanor Kim, Assistant Director of Tax Administration, Texas Comptroller of Public Accounts
Dan Kostenbauder, General Tax Counsel, Hewlett-Packard Company
Steve Lankford, Manager, EDS Corporation
Stephen Lodge, Vice President Legislative Affairs, National Confectioners Association
Ellen Marshall, Vice President, Patuxent Consulting Group, Inc.
Stephen Olivier, Manager, Excise Tax Advice, Chevron Texaco Company
Neal Osten, Senior Committee Director, National Conference of State Legislatures
Juan Otero, Senior Legislative Counsel, National League of Cities
Scott Peterson, Director, Business Tax Division, South Dakota Department of Revenue
Greg Potegal, Counsel, Washington Department of Revenue
Rich Prem, Director, Worldwide Indirect Taxes, Amazon.com
Maureen Riehl, Vice President, National Retail Association
Bernard Rothman, Senior Vice President, First Data Corporation
Daniel Schibley, Senior Writer/Analyst, CCH Incorporated
Doug Sheppard, Reporter, State Tax Notes
William Smith, President, Morrison & Smith, LLP
Jan Teague, President, Washington Retail Association
Warren Townsend, Director, Sales, Use, and Product Taxes, Wal-Mart Stores, Inc.
Miles Vosberg, North Dakota Office of State Tax Commissioner
Graham Williams, Policy Specialist, National Conference of State Legislatures
Wayne Zakrzewski, Assistant General Counsel - Tax, J. C. Penney Company, Inc.

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I. Welcome

Co-Chair Bruce Johnson opened the meeting at 8:40 AM and welcomed the delegates, newcomers, and the Alabama representatives, some of whom were participating for the first time. He mentioned that it would be helpful to have motions in written form, so that they can be distributed to the group.

  1. Old Business
  2. Bruce Johnson indicated that votes would not be held that morning, since some attendees would be arriving later in the day. He noted that the Streamlined Sales Tax Project (SSTP) is holding discussions with food industry representative on minor changes to food definitions. Dianne Hardt of Wisconsin indicated that these changes would be discussed at the June SSTP meeting.

    Bruce Johnson then addressed the allowance of a second State rate, which was approved at the previous meeting. He indicated that concerns have been expressed that the provision is too broad, and that, perhaps, it should be limited to food and utilities. He invited the group to discuss this issue, but not to vote on it, since Illinois was not present at this meeting.

    Jerry Johnson of Oklahoma presented a proposed definition of utilities, which could be excluded from the provisions of the Agreement. Jenny Engh of Minnesota indicated that the group should seek more input on this before making a decision in June. Dianne Hardt suggested getting Senator Rauchenberger of Illinois, Mr. Julian of the Direct Marketers Association, the SSTP Co-Chairs, Representative Kisber, and Warren Townsend of Wal-Mart together to discuss the second rate issue. Steve Kranz of Washington, DC indicated his interest in being involved with this group. Jerry Johnson then explained the intent of the utility language, which is to capture those items that are not sold at retail stores and not transported by customers. A Michigan delegate indicated that it has a second rate for fuel that is picked up at the retail location, e.g., firewood. Doug Roberts of Michigan indicated that his State is comfortable with the utility language and could deal with its special treatment of fuel purchased at a retail store. Steve Cordi of Maryland asked if the proposal would allow for a rate for delivered propane and a different rate for propane purchased at a retail store. This was confirmed by Jerry Johnson. Bruce Johnson indicated that Utah has a separate rate for residential use of electricity. Dwight Cook of North Dakota indicated the importance of a second rate for farm machinery for his State's participation in the Agreement. Charles Collins noted North Carolina also has special treatment for farm machinery. Royal McCracken of South Dakota indicated that provisions for water and farm machinery deserve more work. Jerry Johnson indicated that the utility definition could be dealt with separately from the second rate issue.

    The group then discussed rounding. Charles Collins noted the close vote on rounding at the previous meeting, and reported that some business participants are concerned about the decision of the group to use more than one rounding rule. Steve Kranz indicated that Dean Andal identified rounding as one of the failures of the project at a recent California tax policy conference. Charles Collins added that if the group adopts more than one rule, it should have a very good explanation of why it is allowing this. Delegate Sheila Hixson of Maryland stated that Mr. Andal would oppose the recommendations of the group, regardless of the rounding situation. Steve Kranz suggested the members of the U.S. Congress could be persuaded by Mr. Andal's argument. Delegate Hixson indicated that "two rates" could also be an issue that is cited in arguments against the group's proposals. Bruce Johnson noted that this topic will be on the agenda for June and suggested that the group move on to discussion of the preamble. A "Definition Issue Paper" and a list of "Definition Principles" were distributed to the group.

    The group then discussed proxy voting, including a recommendation from Rhode Island that allows for voting in absentia under certain conditions.

  3. Carry Over Issues
  4. Bruce Johnson invited Charles Collins and Diane Hardt to start with items that were not addressed at the previous meeting. Ms. Hardt introduced the proposed definitions of drug, prescription, and over-the-counter drug. Subsequent discussion by the group included the exemption for "prescription drugs," "exemptions" for hospital purchases (from a state sales tax exemption for purchase of prescription drugs), and the merits of the "grooming and hygiene products" definition, which would allow an option for States to exempt prescription drugs, but tax personal grooming items. Diane Hardt explained that the "grooming and hygiene products" definition serves as a compromise for the 11 States that tax over the counter drugs, and retailers were involved with development of this definition. Wayne Zakrzewski of JC Penny did not oppose this definition, but noted the complexity that this introduces and suggested that participants should be ready for criticism of including the definition for "grooming and hygiene products."

    Diane Hardt then introduced the proposed definitions of medical equipment, including prosthetic device, durable medical equipment, and mobility enhancing equipment. There was discussion of use-based exemptions, which are frequently used in this area, for example, medical equipment for home use. In response to a question on payer-based exemptions, Charlotte Quarles noted that Medicaid payments come directly from the State, but that Medicare payments come from third parties. Ms. Hardt noted that APRIA Healthcare could not attend the meeting, but supports the proposed definitions.

    Diane Hardt then explained the proposed definitions of tangible personal property and software. She noted that some States do not see an advantage to defining tangible personal property and also noted a letter from Mark Nebergall that suggests all States have a common definition of prewritten computer software. In the ensuing discussion, several States questioned the need for a definition of tangible personal property. Others noted court precedents on defining particular items, such as the definition of broadcast signals as tangible in Tennessee. Bruce Johnson stated that "we recognize that case law varies across the States." He also noted that those who sell in 50 States need clarity, and that uniform definitions will help in convincing Congress that this is a simplified system. Charles Collins stated that a definition of tangible personal property is the core of the system and that it is difficult to move forward without it. In response to a question about services, Diane Hardt noted that the SSTP is not trying to define services. Bruce Johnson then opened the discussion to public comment.

    Steve Olivier of Chevron-Texaco cited the potential for definitions to become revenue targets and suggested dropping the second sentence of the proposed definition of tangible personal property-"Tangible personal property includes electricity, water, gas, steam, and prewritten computer software." In response to a question from Jerry Johnson, Mr. Olivier stated that the tangible personal property definition does not make it easier for his organization to administer the sales tax.

    Wayne Zakrzewski of JC Penney stated that definitions are a vital part of the project, and support the goals of certainty for retailers and broader support among the States for the project. Representative Sally Conway Kilbane of Ohio asked about splitting the tangible personal property definition into two sections where a State could use either or both sections. Mr. Zakrzewski responded that "we never thought that the project was about a uniform tax base." Bruce Johnson added that the project could define tangible personal property, the States could provide specific guidance on the taxability of electricity, and hold retailers harmless. Mr. Zakrzewksi responded that the "hold harmless" is important.

    The group recessed for lunch and reconvened at 1:25 PM. Bruce Johnson reminded delegates of the next meeting on June 14-15, 2002 in Baltimore, Maryland, and invited comments on the minutes from the April 12-13 meeting in Dearborn, Michigan. Following a question about discussion of the soft drink definition from Jenny Engh of Minnesota, she moved for acceptance of the minutes. This was seconded by UT and passed.

    The group then took up discussion of the "preamble" from the Uniform Definitions of the Streamlined Sales and Use Tax Agreement and general issues related to use of definitions. Sabra Faires noted the Definition Issue Paper (May 16, 2002) which was developed by Scott Peterson of South Dakota, Bruce Johnson, and others. She explained that revisions to the preamble on definitions are expected. She added that inclusions of definitions in state statutes would be required where these terms are used in the statutes. Thus, if a State does not exempt a particular product, then a definition does not need to be included in the statute. In response to a question from Donna Donovan of Michigan, Ms. Faires indicated that the group needs to identify which definitions are core. Bruce Johnson added that the clear intention is that a State has to use the defined terms for exemptions. He added an example-that Utah cannot exempt medicine, rather than the officially defined "drugs." In response to a question, Ms. Faires stated that exemptions would be allowed for products that are not defined, e.g., ostrich food in Florida. However, she emphasized that variations from official definitions, e.g., an alternative definition for "prepared food," would not be allowed. It was noted that use-based exemptions would be allowed with an exemption certificate or direct pay permit. Stephen Cordi of Maryland asked about entity-based exemptions. The response was that these will be allowed. The discussion of definitions was then opened for public comment.

    Dennis Brown of the Equipment Leasing Association expressed his support for the leasing definition developed by the project and expressed the hope that all States would adopt this definition. He cautioned that legislatures often alter recommendations, and provided the example of the Uniform Commercial Code. Bernard Rothman of First Data Corp cited the dangers of expanding the tax base and stated that placement of definitions in a separate document gives the impression of simplicity and uniformity.

    Sabra Faires then explained that the project expects to have a revised document on definitions for the Baltimore meeting and asked for any additional comments. Donna Donovan asked if placement of definitions in an appendix would make them a target. Bruce Johnson responded that he would rather see the appendix be a target, than the remainder of the Agreement. This was followed with discussion of definitions and the Letter of Intent as appendixes to the Agreement. Steve Kranz asked for an straw vote that definitions be included in a separate appendix, to be called a "Library of Definitions." In response to a question, he clarified that this could include administrative definitions. This was supported by a voice vote with several "No" votes.

    The group then proceeded to discuss the Definition Principles (dated May 17, 2002). Charles Collins asked for a straw vote on acceptance of the principles. This was seconded by Steve Kranz. Mary Cameron of Arkansas asked about the situation of taxable purchase of prescriptions by hospitals. Sabra Faires indicated that the drafting committee would prepare a proposal to accommodate this situation. Bruce Johnson emphasized three critical elements of the definitions: 1) product-based exemptions, e.g., American flags, 2) use-based exemptions, and 3) entity-based definitions. The motion to approve the Definition Principles was then passed. (This applies to Principles 1-9. Principle 10 was addressed in the previous vote on placement of definitions.)

    The group then took up the definition of "drug, prescription, and over-the -counter drug." WI moved and NJ seconded a motion to approve the proposed definition. Sabra Faires introduced an amendment to add the definition of "prescription drug." Florida and other States expressed concerns that changes should not be introduced without the benefit of industry input. After additional discussion, the amendment was withdrawn. Bruce Johnson spoke in favor of the original motion, nothing that it may be appropriate to deal with contraband products and grooming aids in the future. The following changes to the definition were proposed: 1) prior to line 1, delete "in the following manner" and replace with "for purpose of exemption" and 2) in line 46, replace "Until" with "Unless" and insert "otherwise" before "defined." These changes were passed. A motion to approve the drug definitions was then made by Washington and seconded by North Carolina. This was passed.

    The group then discussed amendments to the medical equipment definition. It was proposed that "durable medical equipment" be amended to include ", but does not include mobility enhancing equipment," between "same" and "which" at the beginning of the definition. Commas were also proposed between "same" and "but" and "equipment" and "which" at the beginning of the definition of "mobility enhancing equipment." Acceptance of these changes was moved by WI and passed. Acceptance of the amended definition was then moved by WI, seconded by DC, and passed.

    The group then took up discussion of the definition of tangible personal property. Dianne Hardt moved acceptance of the proposed definition. SD then moved to amend the definition of "prewritten computer software" by adding the following to the end of that definition: "States may exempt prewritten computer software delivered electronically by using the following definition in an exemption provision." (This immediately precedes the definition of "delivered electronically.") This was seconded by DC and passed. Wisconsin then moved for acceptance of lines 95-132 of the definition of tangible personal property with the amended definition of "prewritten computer software." This was passed. Extensive discussion of lines 90-94 followed. Sabra Faires noted that with the proposed definitions in place, States could still exclude utilities from the sales tax. Following withdrawal of amendments to lines 90-94, the proposed language from the SSTP was passed on a voice vote with some "No" votes.

    The meeting was recessed on Friday afternoon and reconvened at 8:10 AM on May 18. Bruce Johnson summarized a letter from Governors Engler and Patton that encourages the group to complete its work prior to the National Governors Association (NGA) and National Conference of State Legislatures (NCSL) meetings this summer. He added that the group might need to have another meeting in late June or early July--in order to complete its work prior to the NGA and NCSL meetings. He added that the group should organize a drafting committee to work on the preamble, governance provisions, and in absentia voting. He invited the group to identify any definitions, e.g., digital property, that are absolutely critical. The following were identified: bundled products (WA), the second rate issue (UT), licensed trucks (MI), refund remedies (WI), identification of the scope of taxes covered by the project (tourist taxes, general sales taxes, and so forth), direct pay permits (WI), and farm machinery (ND). Senator Emmons asked if it were possible to have, for the Baltimore meeting, one document that has everything that the group has done, including actions taken at the current meeting. Bruce Johnson replied that this would be provided.

  5. Governance

William Riesenberger of Ohio then provided the SSTP suggestions on governance. Discussion by the delegates of the governance provisions of the Streamlined Sales and Use Tax Agreement (Articles VII, VIII, XI and XII), that was included in the delegate notebooks is summarized here.

Section 706 Requirements for Membership

Jerry Johnson asked about the automatic revocation language. Bruce Johnson explained that this would apply only prior to formal admittance of a State to the Agreement.

Section 707 Conditional Membership until July 1, 2003

Jerry Johnson asked if the June 30, 2003 date for implementation is feasible. It was explained that this date is taken from the initial NCSL recommendations. Bruce Johnson indicated that he would be comfortable with extending this date to December 2003 or July 2004. He added that it is important for the States around the table to have input into the terms of the Agreement until it is implemented. Jenny Engh noted that Minnesota has a sunset date of 2005 for implementation of the Agreement in its statutes.

Section 708 Agreement Administration

There was discussion of the benefits of having both legislative and administrative representation in state delegations.

Section 712 Sanction of Member States

Steve Kranz suggested that, to allow for public input, any person, including the Business Advisory Council, be allowed to offer a resolution to sanction a member State. Lucille Taylor of Michigan stated that this would invite problems. Joanne Emmons suggested that formal input should be restricted to the States and the Business Advisory Council. A Utah delegate indicated that there are tax protestors who would use the approach suggested by Mr. Kranz to stonewall the group.

Regarding sanctions, beyond expulsion, Jerry Johnson recommended that they either be "fleshed out" or deleted. Senator Emmons asked how monetary sanctions could be enforced. Senator Monson asked whether monetary damages would be for damages or punishment. Will Rice suggested that damages could be related to costs imposed by withdrawal of a State. Senator Emmons suggested that language for this type of situation be placed in vendor contracts.

Section 716 Business Advisory Council

John Keel of Texas suggested that "The member States must" be replaced with "The member States may."

Section 720 Necessary and Proper Authority

Dan Bucks explained that this is standard language and comes from the recognition that all requirements cannot be anticipated in advance.

Section 802

Steve Kranz stated that business needs a timely response to issues of interpretation.

Article XII (proposed)

Steve Kranz explained that this article is a placeholder and could be used for some type of appeals process. He added that having an appeals process in the Agreement would be advantageous when it comes before Congress. He noted that Congress could come up with less desirable procedures, such as review by federal courts or agencies. A delegate from Maryland asked Dan Bucks of the Multistate Tax Commission if there were any other groups that have business advisory councils. Mr. Bucks responded that with an advisory council, authority always rests with state officials. He further explained that assigning rights beyond an advisory role could raise questions about unlawful delegation of authority. He noted an arbitration provision of the Multistate Tax Compact that has not been implemented. When California entered the compact, it stated that its membership would be null and void if this provision were implemented. Mr. Bucks emphasized that the Agreement is among sovereign States and that there are limits to delegation of authority under the Agreement. He added that there are ways of achieving public and business input without impinging on state authority, and, in turn, discouraging participation by the States. Will Rice asked for some written input on the limits to delegation of authority under a multistate agreement. The group then proceeded with general discussion of governance.

Harry Fox of New Jersey cited the need for a quick answer on some issues, such as "gray" products, which may need a response in 48 hours. Steve Kranz responded that the group (created by the Agreement) will need a staff and an administrative officer to accommodate these requirements. Mr. Kranz stated that there are significant differences between the Agreement under discussion, and the Multistate Tax Compact. He added that arbitration of a tax assessment is different from the types of issues that will be dealt with in the Agreement.

Jenny Engh stated that the definition of noncompliance and sanctions under the Agreement needs to be more specific. She also stated that there needs to be an appeal process, or interpretation body, and that appeals processes in state tax agencies provide a model for this. She added that the governing board is a policy body and should not be hearing appeals. In addition, she stated that as the group's thinking on issues changes, it should not penalize States that have adopted earlier proposals.

Dwight Cook mentioned the importance of having time frames for a State to get into compliance. Will Rice indicated that States would have an opportunity to make corrections, but that this is not spelled out in the Agreement. Bruce Johnson added that these time frames also have to consider legislative calendars.

Following further discussion of the potential for a multistate agreement or a congressionally sanctioned compact, Bruce Johnson emphasized that the group is seeking a voluntary agreement among the States. He added that Congress could grant collection authority to this Agreement. He also cited the International Fuel Tax Agreement (IFTA) as an example of a multistate agreement.

Following a break, William Bowie of the District of Columbia stated that comments made by Steve Kranz earlier in the morning were solely on behalf of the Council on State Taxation (COST). He explained that Mr. Kranz has two roles at the meeting-as a representative of the District of Columbia and as a representative of COST. He added that he was making this statement since Mr. Kranz had not clarified his role prior to leave the meeting.

Juan Otero of the National League of Cities (NLC) noted the support of his organization for the streamlined project and urged the group to establish a local government advisory body. In response to Mr. Otero's comments, Betty Griggs of Alabama emphasized the recent discussions of local government representatives from four States that formed a study group in April 2002. She urged local government representatives to bring concerns to this group and remarked that this group will be providing written comments to the SSTIS. Ms. Griggs also offered the support of the Alliance of Local Tax Collectors for this effort. Jack Kopald noted that one of the principles of the SSTIS Agreement is state-level administration. He added that it is appropriate for local government representatives to work with their States. Raymond Tangney commented that Louisiana local government representatives are in communication with the Louisiana delegates to the SSTIS.

Maureen Riehl of the National Retail Federation noted that she was seeing the governance provisions for the first time today and that the National Retail Federation thought deliberations on governance were going to occur via the NCSL Executive Committee Task Force on State and Local Taxation of Telecommunications and Electronic Commerce. (Ms. Riehl's written comments from the May 3, 2002 NCSL meeting are contained in the delegate notebooks.) She suggested a unified approach by NCSL and the SSTIS. She also emphasized her concerns about the number of States required, in Article XI, to establish an agreement-that five is not enough. In addition, she stated that it should be difficult for States to withdraw from the Agreement. Ms. Riehl added that a multistate agreement is a two-star victory, but that congressional authority for a multistate agreement would be a five-star victory. In addition, she stated that the IFTA Agreement is a good model for the Implementing States.

Wayne Zakrzewski concurred with Ms. Riehl's remarks and emphasized the need for provisions to resolve conflicts and complaints. Representative Kisber commented that it is important for the NCSL and SSTIS groups to meet prior to the next Implementing States meeting in Baltimore. He added that self-governance is not going to "pass muster" with critics of the streamlined project or Congress. In response to a question from Senator Monson, Ms. Riehl stated that appeals and judicial review should take place at the state level-she did not envision federal administrative or judicial oversight. In response to comments on the makeup of the business advisory group, Ms. Riehl recommended a balance by size and type of business, including representation from "main street" retailers and remote sellers. Bruce Johnson added that the business advisory group should act as a filter rather than a funnel, that is, all complaints should not automatically be forwarded to the governing body. In addition, he stated that the threshold number of States is something that will solve itself as a matter of practicality. He added that "it could be two States, and I couldn't stop that." Ms. Riehl concluded that she does not want a small number of States deciding who else can join-this could limit participation in and success of the effort.

Carolyn Elerson of Federal Express Corporation expressed her appreciation of the diligent work of the project. She noted that her organization is not a large collector of sales and use taxes, but is a large use taxpayer, and files hundreds of returns per month in 45 States. She explained that with a mandatory system, the appeals process would be very important to Federal Express. She added that Federal Express prefers that the appeals process remain with the Implementing States. In response to a question about the nature of their current sales and use tax appeals, Ms. Elerson stated that most of their current problems are with local governments, and that Federal Express sometimes has to pay taxes twice to local governments. She added that conflicting claims sometimes result in litigation. In addition she anticipates that there may be other issues that arise under the Agreement. Jerry Johnson questioned what issues would be appealed in the streamlined system. Bruce Johnson responded that he thought that that sourcing disputes between the States could be subject to appeal.

Dan Kostenbauder of Hewlett-Packard cited the opportunity for the proposed system to reduce the resources applied to sales tax administration. He cited his comments to the recent NCSL meeting where he emphasized the need for uniformity-that it will be very helpful to have one set of rules for sales and use taxes. In addition, he stated that the main issue for the States is the base and rates. He views definitions as a menu from which the States can choose, and that the system should provide sufficient definitions that will allow a large number of States to migrate to the streamlined system. He commented that if Maine needs special treatment of lobster pots, then the group should provide a definition. Mr. Kostenbauder added that congressional involvement with the system is probably a necessity.

Dan Bucks of the Multistate Tax Commission (MTC) noted that he had previously made comments on governance at the previous SSTIS meeting in Dearborn and at the recent NCSL meeting in Florida. He emphasized that his comments were primarily informational, rather than recommendations of the MTC. Mr. Bucks recalled the earlier discussion of dispute resolution among the States, and emphasized that there is already an Alternative Dispute Resolution Program that was established by the MTC and COST. Mr. Bucks emphasized that States cannot give up authority over their laws in multistate agreements. He added that no one can make decisions about the compliance of the States, except for the States themselves. In response to earlier discussion in the meeting, he argued that rulings by a judicial panel would be contrary to the nature of a multistate agreement. He then reviewed three approaches to encouraging State participation and compliance: 1) mutual understanding and goodwill, 2) mutual understanding with sanctions, and 3) regulation (at the federal level). He noted that support of the business community is critical to this effort. He strongly emphasized that introducing federal authority over an interstate agreement weakens the goodwill and understanding of the group. Returning to the second approach, he emphasized the importance of sanctions. He cited changes in vendor discounts and registration requirements as examples of sanctions that could be applied to States that are out of compliance with an agreement. He added that sanctions could still apply in the presence of federal authority. Mr. Bucks stated that the MTC does oppose federal court jurisdiction over state tax issues.

Doug Roberts of Michigan asked if the MTC is approved by Congress. Mr. Bucks responded that, in the U.S. Steel case, the U.S. Supreme Court ruled that the Multistate Tax Compact is a voluntary agreement among States that does not need congressional approval. He added that NCSL had a good presentation on this at its recent meeting-which emphasized that compacts are required where they take away from federal authority. Those that do not take away federal authority do not require congressional approval. Mr. Roberts then asked to what extent the MTC could be used to accomplish the goals of the streamlined system. Mr. Bucks indicated that there are some overlaps between the mission of the MTC and the mission of the proposed streamlined system. He added that uniformity for sales and use taxes is expressed in the Multistate Tax Compact and that this compact could be used for much of what the group hopes to accomplish. In addition, he explained that he would have to do an analysis of the Multistate Tax Compact to see what would need to be changed to accommodate the needs of the streamlined system. Senator Emmons asked if all 45 sales tax States are involved with the MTC. Mr. Bucks responded that there are 21 MTC members and the use of the MTC for this effort would require more States to join. Mr. Bucks emphasized that this project was approached outside of the MTC since the participants thought that it was important to have broader participation among the States.

Mr. Bucks commented on the threshold number of States required for an agreement-he believes that this is not an important issue. Any number of States can proceed with an agreement and add more States at a later time. He added that more attention needs to be given to the inclusion of business input without compromising state authority.

Bruce Johnson reiterated that the final authority for the group has to be with the group. He added that he foresaw the need for non-binding arbitration, which would serve as a recommendation to the States. In regard to the date for conditional memberships, Bruce Johnson stated that there is interest in moving the July 1, 2003 date to July 1, 2004. Senator Emmons commented that this could be changed at any time, but that she prefers a date of December 2003 or March 2004. Betty Griggs commented that an extension of the date, from July 1, 2003, would help gain legislative approval in Alabama. Bruce Johnson stated that there seems to be a consensus to extend the date-at least until December 2003. Senator Monson asked, "if we have five member States, do they control the process?" Bruce Johnson replied that extending the deadline should allow for participation of more States on a conditional basis. He asked if there were any objections to changing the Agreement to ten States. He added that this does not seem to be onerous, given the number of States that are involved.

Bruce Johnson, with comments from the delegates, listed topics for the next meeting. These are: the preamble, specific governance provisions, definitions (digital property), treatment of bundled goods, two rates per State, fine tuning the food definition, licensed drugs, farm equipment definition, a "matrix" for determining taxability of a particular product, revisiting the utility definition, rounding rules, the scope of taxes covered by the Agreement, and direct pay permits. Bruce Johnson indicated that he hopes to get most of the drafting done by the June meeting, so that the Agreement can go to NCSL and NGA for their annual meetings. He also requested the staff to look at arrangements for a meeting during the week preceding July 13.

The meeting was adjourned at 12:20 PM.

Respectfully Submitted
Ken Beier
Multistate Tax Commission

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