By Paul Williams

Law360 (March 27, 2020, 8:33 PM EDT) -- As state legislatures have gone dark amid the novel coronavirus pandemic, officials in several states with pending Wayfair-related legislation told Law360 on Friday that they were still hopeful of pushing the bills across the finish line this year.

Mississippi and Louisiana have outstanding bills that would require marketplace facilitators such as Amazon.com to collect and remit sales and use tax, and Missouri and Kansas have pending bills addressing both remote sellers and marketplaces.

Key lawmakers in Mississippi and Louisiana told Law360 that passing a marketplace bill remains a top priority, despite legislative sessions being shortened to curb the transmission of the new coronavirus. But officials in Kansas and Missouri have a dimmer outlook on their bills' prospects of passage, despite being atop their personal wish lists.

Louisiana isn't expected to debate bills until at least mid-April, and Mississippi's session has been suspended indefinitely.

Louisiana state Sen. Bret Allain II, R-Franklin, sponsor of a marketplace facilitator bill, told Law360 on Friday that while lawmakers will mainly focus on a budget when they return, ensuring that the state has a method to require marketplaces to collect and remit taxes will also be critical.

"It's high on my list." Allain said. "I'm going to try my best to get that pushed through this year. These taxes are due anyway. We just don't have a method to collect them."

Louisiana has a July 1 deadline for remote sellers to begin collecting and remitting tax but lacks a requirement for marketplaces. Allain's bill, S.B. 138, would impose the requirement on marketplace facilitators that exceed economic nexus thresholds of $100,000 in sales or 200 transactions into the state in the current or previous calendar year. His bill would take effect next Jan. 1.

Allain said that if Louisiana doesn't enact a marketplace bill before the Legislature's June 1 adjournment deadline, he expects either the governor or lawmakers to call a special session to address the bill, along with other priorities. Any sales and use tax revenue generated from marketplace sales, he said, could help Louisiana make up for funds the state is sure to lose while businesses are closed to limit the spread of COVID-19, the respiratory ailment caused by the virus.

"I'm not planning anything for the early summer," Allain said, adding that a special session is under discussion.

Meanwhile, Mississippi state Sen. Josh Harkins, R- Flowood, told Law360 on Friday that he doesn't expect the pandemic to stop the marketplace bill, H.B. 379, that the state House of Representatives has already passed.

Harkins, chairman of the state Senate Finance Committee, said he expects his committee to hear the bill within a couple weeks of the Legislature's reconvening. He said lawmakers will make sure to adopt a budget before the end of the fiscal year, June 30, but their priorities won't necessarily end there.

Mississippi requires remote sellers with more than $250,000 in sales during the prior 12 months to collect and remit tax, and H.B. 379 would impose the same requirement for marketplace facilitators. Harkins said it is important to treat marketplaces and remote sellers equally after the U.S. Supreme Court's 2018 South Dakota v. Wayfair decision, which did away with the physical presence requirement for sales and use taxes.

However, the future of pending remote seller and marketplace bills in Kansas and Missouri appear more complicated.

Kansas is the only state with a remote seller requirement that lacks a safe harbor for small sellers. Tax practitioners have cautioned that the policy would likely be struck down in court for running counter to the Wayfair ruling. Several bills in the state House and Senate would establish a small-seller exception for remote sellers and require marketplaces to collect and remit tax, but none has cleared a committee yet.

The Kansas Legislature is adjourned until at least April 27. Once it returns, Rep. Steven Johnson, R-Assaria, chairman of the House Committee on Taxation, told Law360 on Thursday, passing out a marketplace and a remote seller threshold bill to the full House will be "the first thing" on his committee's agenda.

But from there, the bill's future would be murky, as some lawmakers on both sides of the aisle have said a threshold would discriminate against in-state businesses. And while Democratic Gov. Laura Kelly has not explicitly denounced a safe harbor, she has defended the state's current remote seller policy.

Ryan Maness, senior policy analyst and tax counsel at the government affairs firm MultiState Associates, told Law360 on Friday that legislators will still have to navigate their states' respective political climates when they attempt to pass bills after the pandemic passes.

"While it's true that lawmakers will be looking for ways to raise revenue, and the pressure to do that could be significant, the same rules of politics will still apply," he said.

There's also no guarantee that Kansas will consider a remote seller or marketplace bill when lawmakers reconvene, Laura McCabe, a spokeswoman for Sen. President Susan Wagle, R-Wichita, told Law360 on Friday.

"It's unclear, when and if the Legislature returns, what the agenda will look like," McCabe said.

One of Kansas' neighbors, Missouri, is one of two states, along with Florida, that have a statewide sales tax but no tax requirement for remote sellers or marketplaces. Several Wayfair bills there have passed committees, but none have received a floor vote.

Missouri state Rep. J. Eggleston, R-Maysville, the assistant House majority floor leader and sponsor of a remote seller and marketplace bill, H.B. 1957, told Law360 after the House took a break on March 19 that the chamber would likely have a bare-bones agenda once it reconvenes Monday. A remote seller bill is important, he said, but he added that he wasn't optimistic that it would move to the top of the docket.

The Missouri General Assembly is currently meeting sporadically to hammer out a state budget. Republican Gov. Mike Parson made a Wayfair bill one of his top priorities in his January State of the State speech. But Parson has since shifted focus onto the spending plan to ensure the pandemic doesn't disrupt state services, his spokeswoman, Kelli Jones, told Law360 on Friday.

"Other legislative matters can be discussed once this crisis is behind us," Jones said.

--Editing by Neil Cohen.

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