Were the supporters of the Marketplace Fairness Act (MFA) looking the “other way” when it came to upholding the “due process” rights of remote sellers.
The MFA has made me reflect on my former career as a federal agent. After I arrested someone for a suspected crime I had to make sure I followed the “rules” when I interviewed the person. I was required to notify the defendant of their Miranda rights. Most people have heard these rights spoken on television shows.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
The U.S. Supreme Court decided that a person that has been arrested must informed of their constitutional rights before they can be questioned by law enforcement. According to Steven Titch, “Miranda sharpened and affirmed the right of due process already present” in the U.S. Constitution. Just like Quill sharpened and affirmed the due process rights for interstate commerce on remote sales. The legal free dictionary shows, “The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.”
According to SalesTaxSupport.com, “The Due Process Clause states that no state shall “deprive any person of life, liberty, or property, without due process of law.” With respect to state taxation, the Supreme Court has interpreted this to prohibit a state from taxing a corporation unless there is a “minimal connection” between the company and the state in which it operates.”
If the MFA had passed in its current form it would have obliterated the “due process” clause as it relates to state taxation. A “remote seller” (not a criminal an honest business owner) would have been denied their due process rights.
Lets hope that the supporters of #eFairness try to stay within the confines of the U.S. constitution this year when they try to create new legislation.