Simon sues state over sales-tax loophole for Amazon.com

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Simon Property Group Inc. has filed suit against the Indiana Department of Revenue in an attempt to force the state to collect sales taxes from Amazon.com Inc.

The Indianapolis-based mall powerhouse said it filed the suit Thursday not to collect "monetary damages" but to level the playing field for Indiana's brick-and-mortar retailers including the tenants at its 27 Indiana shopping centers.

The lawsuit, filed in Marion County Superior Court, claims the state's "illegal and unconstitutional" decision to exempt Amazon from sales-tax collection gives the giant online retailer "an unfair advantage in the market."

The suit cites a study by professors at the University of Tennessee that estimates Indiana will forego about $195 million in revenue in 2012 alone by failing to compel out-of-state retailers like Amazon to collect sales taxes.

Simon earlier had requested that the state begin collecting sales taxes on purchases made from within the state's boundaries on Amazon.com. Online retailers typically are required to collect sales taxes on purchases from within states where they have a physical presence, but Indiana has not forced the issue with Amazon.

The decision by Indiana officials to take a kid-glove approach was an important factor in Amazon's decision to open four local distribution centers that employ thousands of Hoosiers. Of course, traditional retailers employ many thousands more.

"Main Street retailers are being harmed by this unequal playing field in Indiana and their existence is being jeopardized," Simon said in a prepared statement. "As a proud Indiana company which employs thousands of Hoosiers, Simon Property Group believes we have a responsibility to ensure the laws are equally applied to everyone."

Amazon has faced pressure in most of the states where it operates to collect sales tax, particularly as state coffers dried up during the recession. The company has argued the sales-tax issue should be decided at the federal level, something state Sen. Luke Kenley of Noblesville is pursuing.

The office of Gov. Mitch Daniels had not yet seen a copy of the suit, said spokeswoman Jane Jankowski.

In an October letter to State Rep. Bill Crawford, D-Indianapolis, Indiana Office of Management and Budget Director Christopher A. Ruhl said a state analysis estimated Indiana at most loses out on $25 million annually by not collecting sales taxes directly from Amazon.

The letter acknowledged that Amazon is the state's largest "non-remitter" of sales taxes but suggested the federal government would have to weigh in.

"A national solution that simplifies for all businesses the varying, complicated and burdensome collection requirements imposed by thousands of independent tax collecting jurisdictions remains the optimal solution," Ruhl wrote. "Further, Congressional action may be the only mechanism to overturn U.S. Supreme Court precedent that has precluded states from mandating collection of sales tax from remote retailers."

Simon CEO David Simon has made no secret of his annoyance at the tax advantage Amazon enjoys, summing up his position at an address to the Economic Club of Indiana in 2010.

“[The] Internet has a distinct advantage, which in my opinion is unfair,” he said at the time. “And hopefully we’re looking for fairness in our tax system. If you sell it in the physical world versus the virtual world, it ought to be the same. We need to level the playing field tax-wise.”

Amazon in July announced plans to open a second warehouse in Plainfield, its fourth in central Indiana. In total, Amazon said it will occupy about 3 million square feet of space and employ "thousands" of Hoosiers.


  • what's fair?
    Simon gets tax breaks for building malls, which is ok in their eyes. I would be interested in seeing how much they don't pay each year. And Amazon pays none. I on the other had HAVE to pay taxes. I own a "mom & pop store" with my wife, and we pay every penny of our taxes. But everyone wants to compare our prices with the big boys. We can't compete, we can't afford to match prices with them. But the first time they need a donation who to they hit up??? Yep the local retailer. Now the next time you want to complain about schools, roads, etc. Think the next time you by-pass your local retailer to go to the big boys or online, because it's cheaper. There's a reason. They don't pay the taxes a local retailer does.
  • The point of the matter is where does it stop?
    Here we are again trying to blame a successful business for our taxing problems when we should be looking at how our tax dollars are being spent in the first place.

    Simon is just looking out for its own business interests which any good business would. The problem lies within our own government and the career politicians we seem to put back in office time and time again because they seem to say just the right thing around election time(because we don't take the time to check their voting record)and after being reelected they go right back to their own self serving interests.

    If the government were a business and treated as such do you really think it would have made it past the 5 year mark, the answer is no, it would have been forced to file for bankruptcy and been put to sleep but because there is a seemingly unlimited supply of money at its disposal it keeps sputtering along at our expense.

    Let me say I do not have a problem with Simon or Amazon. I do have a problem with our government seemingly to need more and more of our tax dollars to survive and no end in sight as to the creative ways it can come up with to get at said dollars.

    Take a look at some of these posts here we are blaming each other and the real culprit is setting back letting the people it’s suppose to be serving do its bidding so that it (the government) can legally take more of our money (and we feel good about giving it to them it because it’s going to level playing field) then decide where and who to dole it out to, are we nuts?

    We keep throwing good money after bad into the same system and expecting a different result; the system is broken and seriously needs to be fixed from the top down!
  • You're All Wrong
    All of these comments are baseless. It's humorous that some of these people think they have a clue. The entire situation is a Catch-22. Even if they find a "Fair" solution - someone will change it next election season. Just get over it
  • Responses
    First of all, calling people "morons" just because you disagree on the policy does nothing to advance your argument. In fact, it weakens it because it isn't based on substance.

    Second, local companies pay business taxes here because they benefit from things like police protection, streets leading to their businesses, fire protection, etc. Businesses that are out of state do not benefit from any of that. Tax incentives are frequently used by states and counties as a way to entice businesses in order to create jobs.

    Third, as far as all of the online companies that do not have distribution centers here, the U.S. Supreme Court has held that under the Commerce Clause a business must have a "nexus" in a state for that state to force the seller to collect taxes on the sales. Simply allowing people in a state to buy your products and then shipping the products to them from another state does NOT create a nexus. For Indiana to require out of state merchants to collect the taxes would violate the Constitution and open the state up to a federal lawsuit such as the one between North Dakota and Quill (which North Dakota lost).

    Lastly, if you look at the small number of states that have succeeded in passing a tax like this in the past you will see utter chaos. Illinois passed a tax recently and is already talking about repealing it because they lost revenue and jobs. The state is also now being sued in federal court. California passed a tax and the people immediately started pushing for a referendum to have it blocked. Two states that have passed similar laws in the past (Rhode Island and Colorado) are now looking at repealing the laws because no additional revenue was collected and small businesses were actually hurt.
  • Get a grip!!
    Get a grip people. If you are buying items on line and not paying use tax (an alternative tax on out of state purchases), you are committing tax fraud. This is not new with the internet. It has been an issue with mail order sales since the sales tax was first imposed. You cannot legally avoid sales tax or use tax simply by buying from out of state. Try buying a car from another state - the BMV will charge the sales tax when you apply for the title. The bottom line is the total tax should be the same (assuming taxpayers are honest - many are not) whether you purchase something in Indiana or from another state. The only difference is whether the seller collects the tax or the taxpayer pays the tax to the state. Since Amazon has physical assets (warehouses and shipping facilities) in Indiana, it should be required to collect the sales tax. In fact, I think Amazon is pretty short-sighted about this. If it does not collect the correct amount of tax from their customers, it is required to pay out of its own pocket. A pretty big risk on their part considering the dollars involved. The executives at Amazon must be buddies of Mitch, otherwise the Department of Revenue would have been all over this from the start.

    This is just stupidity on Amazon's part and a lack of backbone on Mitch Daniel's part.
  • Agree with Simon
    Those critical of Simon need to understand that the brick and mortar busineses (or landlords) pay Indiana property taxes - most of the internet companies don't. If you drive the brick-and-mortar stores out of business then that tax burden on consumers is increased.

    Not to mention state and local income taxes paid by the Indiana employees of these stores and all the spin-off that commercial development provides.

    This change is long overdue.
  • Can't have both ways
    It is clear from comments here that many have no idea of the actual issue.
    I hope that those who defend Amazon's right not to collect IN sales tax are not the same who complain about having to pay more for school buses, textbooks etc., because the state is taking in less money.
  • Unhappy Hoosiers
    The economy is bad and Hoosiers are suffering financially. So Simon decides that he will take more money out of our pockets to level his own playing field? Enough is enough! Clearly Simon is only interested in his own bank account and does not care if Hoosiers are already at the point of just trying to make needs meet. I say we start a campaign to boycott Simon malls this holiday season and shop online until they drop the law suit!! It would be the 99% against the 1% , It’s Hoosier protecting Hoosiers.
  • Money in his own pocket!
    Most large retail lease agreements include a percentage of sales as part of the compensation package to the landlord. The only thing Simon is doing here is screwing native Hoosiers and lining his own pocket! Come on Billionaire Simon... how much is enough? Simon wouldn't spend a dime of his own money if they didn't financially gain. How about putting quarter machines on the bathroom stalls and water fountains if you need a little extra cash? So much for the little working class guy :(
  • Not tax free
    Every one of Simon's tenants have an online store that you can purchase items tax free. So, is Simon going to file suit against them?

    Actually this is not the case. If you purchase something from Macy's on-line, you will pay Indiana sales tax as Macy's has stores in Indiana. Below is from Macys web site:

    Macys.com charges sales tax based on the State where the recipient is located, or if that particular state has a Macy's Department Store location. The sales tax charged is based on the current tax rate for the state where the shipping address resides. The sales tax will be calculated accurately once your order has been submitted and processed in our system. If your state is a non-tax state, your taxes will be removed once your order has been submitted and processed in our system
    Have you worked a retail job recently? Sure they can come in and touch it, then spill their drink on it or possibly steal it. If they have any genuine interest in purchasing it, they'll ask all of their questions, then turn around and buy it online to save the sales tax, EVEN if it's the same price at the brick and mortar store. I really like Amazon. I can buy all kinds of items that I am not able to find locally, but they should play by the same rules that local retailers must abide by. Every time I hear about libraries being forced to cut hours or schools not having money to pay teachers because of a lack of tax funds, it drives me crazy thinking of the MILLIONS of dollars of tax revenues Indiana misses out on because of online businesses. I also agree that tax incentives for these huge business is unfair. I bet that when I decide to open up a small business the government is not going to be knocking down my door showering me with all kinds of tax perks.
  • Bye Bye Simon
    Simons, you can't accept tax incentives, etc. for many, many years and then bring in the lawyers and sue the pants off someone else who received tax incentives. Why don't you go ahead and pay all the taxesb right now, current and back taxes, you would have paid if not for those incentives and square this thing up? Huh? You are just a pot calling the kettle black. Amazon, you just earned yourself another shopper. So long, Simon malls.
  • Favoritism
    Didn't check spelling. FAVORITISM.
  • Favortism
    Every one of Simon's tenants have an online store that you can purchase items tax free. So, is Simon going to file suit against them?
    • does not help mom and pop
      Nothing that big business does will help mom and pop stores. Simon is looking for the advantage.
      Think about it you build a widget in your garage and start selling it via internet. NOt only do you adhere to local laws of sales tax (as you should), but lets add a sales tax rate for each state that you are selling to. So now the love of widget making has become, tax collector for california and other socialist states. Why stop there if you sold it to someone in that state, well you are benifiting from this state, county, town, where you make the widgets and since it was sold here to someone there, maybe the state, and county and town should get a little too because of all the services that we provide you here. Simon dont make things more difficult, your lots are still packed.
    • Simon Ghetto
      Last time I went to a Simon Mall, I was afraid to go in unarmed.
    • Disingenuous
      Where were the Simons when online retailers forced Border's to close? Since when are they concerned about your jobs? This has only to do with the avarice that is the Simon family.
    • Good
      For once I agree with Simon...
    • Tricia Meyer is right
      Boo-hoo, Simons! If you win this stupid battle you picked to fight, a lot of Hoosiers will be losing their jobs. Awww, you feel for the mom & pop businesses in your malls? I can't think of one store in any Simon mall I've been to that isn't a chain. I do a lot of shopping at Amazon and I'm also a proud member of Amazon Vine, and it will tick me off if Simon follows through with this. The State of Indiana has enough money to run on, and if they can't maybe they should trim the fat there. I don't claim my Amazon purchases on the Use Tax when I fill out my state taxes either, they got enough of my money when I bought a new car last summer. Boohoo, Simon...does Bren need another facelift?
    • Stupidity

      If you push this issue I'm going to stop shopping at your malls. You can't honestly compare Amazon to the local shopping mall; they barely compete at all. You still have the upper hand anyway.

      Buy at the mall:
      - Get it today
      - Extra 7.5% in tax

      Buy it online:
      - Wait 5 days
      - Pay shipping costs

      Simon still has the advantage.
    • Let's all play
      OK, if it's OK for Amazon to not collect tax, then ALL retail stores that have store fronts should be able to exclude sales tax on ANY in-store purchase that is 'shipped' from any area distributuin center. Right?
    • Simon Says
      Simon Mall tenants have a big advantage over Internet competitors, in that local shoppers can actually touch goods before buying and catch a bite to eat while trolling the mall. This is an unfair advantage! Simon needs to shut up. Amazon was given incentives to move its business here. I'm sure Simon has received incentives from local governments.
      • Perspective
        The government is like a spoiled kid, who always has it's had out for this and that, but who has no real sense of how to make, budget, or spend that money.

        Our government needs to quit draining our pocketbooks, and learn how to get along with less. Good Lord! We're taxed when we make it, taxed when we spend it, taxed when we use the things we bought, and taxed when we give it away.

        How about we do away with the IRS, and limit the government to one flat income tax (with no exemptions for corporations or individuals) and make the federal government share that tax with the each state based upon population distribution? NO MORE STATE TAXES! Forget 999, the problem is solved! You now have an efficient and transparent tax system.

        As for how the government spend it, well that's another topic.

      • Time to take business elsewhere
        Time to take business elsewhere. Maybe Simon should give back all they Taxbreaks they get from states and communities when they build a new mall. I don't remember them complaining about those tax breaks.
      • Laughable contentions
        It is pathetic that a company like SImon, that has enjoyed millions in government largesse, now whines about how unfair the system is. Wrong. The problem is that Simon is in a sunset industry and shoppers have determined that they would rather shop online than in a mall. Tough beans. Change your business model, boys, instead of pretending that you're the champion of Main Street. You couldn't care less about Main Street.

        Those who argue for Herman Cain's "federalization" of state taxes best think carefully about their argument. The last thing in the world I want is more federal government involvement in my life. Sales taxes are levied by the state and local governments, not the feds. It is a state issue, and Simon is way off base here.
        • Never
          Chuck asks: "When will the Simons have enough?"

          Answer: Never

          I'm sure that Simon will, as a company devoted to fairness and the principles of fair play and competition, henceforth renounce all subsidies offered by, or received from, various governments, and get to work refunding those they have enjoyed.

        • Crossing State Lines
          [[ I will just cross state lines, make my online purchase, and then come back. ]]

          Just have someone outside of the state put a proxy on their line. You can do the ordering without a lot of driving.
        • Unfair Advantage?
          @Reality >

          Netflix had an obvious competitive advantage over Blockbuster, but I don't remember hearing BB whine about it.

          Yes, they took one in the 'nads, but no one has a right to stay in business. Isn't that part of free enterprise?
        • 9-9-9
          Precisely what Herman Cain is trying to get people to understand about the mess of a tax system we have now. His proposal doesn't solve these states issues but it's part of the "embedded" taxes that are not always equitable.
          • Indiana Will Lose Money if Simon Wins
            We have two issues here. The first are the incentives given to Amazon to build their fulfillment centers here. Those included not collecting sales tax on the purchases made online. If we had not agreed to those incentives, the plants would not have been built here and we would not have gotten the jobs. It's not illegal. It's business. If the state all of a sudden decides to start collecting the taxes, Amazon will 1) pull the centers and take away the jobs, and 2) sue the state for breach of contract. At that point, we will lose the jobs and have to pay to defend the suit and STILL not be able to collect the sales taxes because there will be no local distribution centers to trigger the tax law. How does anyone in our state win in that situation? Sounds like we will only LOSE money.

            The second issue is the fact that Indiana does not force the merchant to collect taxes for online sales when the company is out of state. This is consistent with a Supreme Court decision that held that a state CANNOT tax an out-of-state merchant for in-state purchases unless that merchant has some kind of agent selling for them in that state. Simon wants to argue that because we have people in Indiana who own internet sites that post advertisements for those merchants that those sites become agents, establishing a "nexus" so that the state can tax those purchases. However, a few other states have tried it and it is failing miserably. The end result is always that those merchants just cut their ties with the internet advertisers. What does that mean? There is no longer a nexus and they don't have to collect the taxes. Then add to that the fact that all of the internet companies have lost their contracts and you now have a lot more unemployed Hoosiers--something we definitely do not need. We actually saw other companies move from Illinois to Indiana (bringing more jobs here) in the last few months because Illinois passed an internet tax. Do we want to now lose those jobs, too?

            Simon claims to want to help mom and pop shops just like Walmart made the same claims in Illinois and California. Do you really think that Walmart and Simon are looking out for SMALL BUSINESSES? No way. It's just a way to create a good sound bite for the news.
          • War against the internet
            Simon really wants to tax and sue the entire internet. But why should we tie a 25 lbs brick to the other "marathon runners" just because Simon is the only fat kid in the race?

            As suggestions, Simon should lobby (instead of sue) the State for lower, more competitive sales taxes. Maybe Simon (and Co.) should conduct online activities of their own. Or maybe Simon should provide distinct advantages to consumers that the internet cannot.

            In any event, imposing internet taxes for mom and pop internet start-ups are no way for Indiana to stimulate economic growth! ...and neither is complaining.

          • Interesting
            I didn't know that sales tax was something you could pick or choose who paid.

            If that's the case, I don't want to pay it anymore either.
          • Fair is Fair
            Amazon is a big money maker that cares only about it's self, they treat the entry level staff like a deposable daper, they have so many employees, with a hand full of managers to give direction in a fair way, there is only a few smiles, everyone walking around like zombies, employees know that every week they are interviewing 10 or 20 more employees to replace you if you show any fellow fellings toward your co-workers, I would much rather work for the Simons, at least I could act the way my mother taught me to be, treat others how you would like to be treated.
          • It's Time
            If Simon farts in the wind, they would get a methane rebate. They are still right about Amazon. It's time for Amazon to pay. They are no longer a cute start up struggling to survive. California took them to court and they quickly settled, and Californians got a pile of cash. Why not?
          • sheesh
            Simon sucks - they don't care anything about Indiana or its residents... Their only concern is money and profit...
            The city "gave them" Circle Center and then they still threatened to abandon downtown if they couldn't put their new office buidling in a park. THere were plenty of place they could have located their office building downtown but they had to exercise the clout and show they could ruin a park. They make me sick.
            • Ironic
              Funny how Simon likes to play the role of the disadvantaged. Maybe the IBJ should do a story on how Simon treats their tenants. That would certainly show Simon in the light it deserves.
            • I agree
              I will never set foot in another Simon mall again since they have done this. I do most of my shopping on Amazon, I agree, screw the Simons and mom and pop businesses. I only care about saving money.
            • Well that does it for me!
              I refuse to set foot in any Simon property since they have done this. Indiana lawmakers better watch it - Amazon will pull up and leave like they did in other states if they are forced to collect sales tax.
            • Simon inadvertantly fights for main street
              It is so obvious that retailers such as Amazon have a competitive advantage against traditional brick and mortor stores. What is most sad about this, is our smaller retailers (mom and pop type sales) suffer as a result as well as bigger retail investors such as Simon, Best Buy, HH Gregg, etc. Despite the motivations of Simon alone, winning this lawsuit helps our local entreprenuers. I am totally with you on this one Simons!
              • enough
                When will the Simons have enough? I will continue my efforts to avoid the Pacers & their malls.
                • Legal Opinion
                  Is there a lawyer out there that can tell us if this is the correct way to go about this? I just don't believe that people make the choice on where to purchase relatively low-ticket items based on sales tax. However if the law is that Amazon should collect sales tax on those purchases ship to Indiana addresses - then this law should be enforced. Sure the Simon's benefit, but most importantly their less-affluent customers - the store owners - need the level playing field to ensure their longevity.
                • Tell the Simons to move!
                  Screw the Simons, they have raped this state, city and country with their greedy tactics.
                  If they want to force the Amazon issue and make residents pay taxes when they make purchases from within Indiana, well then, I will just cross state lines, make my online purchase, and then come back. Now, if we really want to teach the Simons a lesson, everyone should stop shopping at a Simon mall for just one day. Go to Target of other independent retailers and watch how quickly Simon backtracks. Time to take back this country from the greedy like Simon and Company.
                  • This pushes me to on-line retailing
                    I have shifted nearly all my purchases to on-line retailers, and Amazon is one of my merchants of choice. I am not opposed to paying sales tax on my purchases because, frankly, if you don't pay the sales tax you are required to pay a use tax. However, this attitude on the part of Simon Properties just girds my loins against "going to the mall" to buy anything. Lobbying to bring legislative reform, yes, but filing suit is not necessary. Give me a break.
                  • captialism
                    seems strange to me that Simon crys foul about "unfair advantages" in a free market economy. doesn't Simon have an unfair advantage with all of the physical real estate they charge too much rent for? yes, they're both selling stuff, but in totally different ways, offering totally different shopping experiences. its like selling apples and oranges to someone looking to buy fruit.
                  • advantage
                    If the internet has an advantage then why do you have record profits? Did we just read in IBJ last month about how well Simon was performing?
                    All Simon is doing is trying to force the public to try to enter their malls. Ever try to exit one? Darn near impossible and that is how it is designed easy in -impossible out.
                    Look Hoosiers love your malls - we shop there every day all day. Ever see an empty mall parking lot - not even on a rainy tuesday morning - the lot is always full.
                    There are just some things that i can not find at the mall - leave the net alone. Stop encouraging taxes.

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