STATE of South Dakota, Plaintiff and Appellant, v. WAYFAIR INC., Overstock.com, Inc., and Newegg Inc., Defendants and Appellees.
28160
Supreme Court of South Dakota.
OPINION FILED 09/13/2017
2017 S.D. 56; ARGUED AUGUST 29, 2017
[¶21.] Under the adopted rule, the Secretary (Knutson) could not record “YES” votes unless the vote was made by a reply email. The “reply email rule” was clear and unambiguous, and it did not permit alternative methods of voting. Thus, it is immaterial that Roth, the Billings family, and Knutson were in favor of the amendment. Roth did not reply via his own email, and neither the Billings nor Knutson voted in the manner required under the rules adopted with respect to this election. Therefore, the HOA was required to consider their votes as “NO” votes, the circuit court erred as a matter of law in counting votes cast by methods not agreed to by the members, and in determining that 90% of the members voted to amend the term of the covenant. We reverse as to this issue.
Conclusion
[¶22.] Nothing within the Declaration of Covenants of the HOA or within its bylaws requires that аn election to amend the Declaration of Covenants’ term be conducted at an annual or special meeting of the members. However, the court did err when it determined that 90% of the members of the HOA voted to amend the term of the covenant. We affirm as to Issues 1 and 2, and reverse as to Issue 3, and remand to the circuit court to address the amendment filed with the Lawrence County Register of Deeds.
[¶23.] GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and WILBUR, Retired Justice, concur.
GEORGE S. ISAACSON, MARTIN I. EISENSTEIN, MATTHEW P. SCHAEFER of Brann & Isaacson, Lewiston, Maine, JEFF BRATKIEWICZ, KATHRYN J. HOSKINS of Bangs, McCullen, Butler, Foye & Simmons, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
SEVERSON, Justice
[¶1.] South Dakota has no state income tax and relies on retail sales and use taxes for much of its revenue. Pursuant to state statute, sales tax is generally collected by sellers selling merchandise in this state at the point of sale and is remitted to the state by those sellers.
[¶2.] Generally, sellers selling merchandise in South Dakota have an obligation to collect and remit sales tax on each transaction to the Deрartment of Revenue.
[¶4.] In 2015, the Supreme Court reviewed a Colorado law that instead of imposing the obligation to collect and remit use tax on sellers with no physical presence in that state, imposed the obligation “to notify ... customers of their use-tax liability and to report” sales information back to the state. Direct Marketing, — U.S. —, 135 S.Ct. at 1127. The issue before the Supreme Court was whether the United States District Court had jurisdiction under the Tax Injunction Act (
[¶5.] With this legal backdrop, the South Dakota Legislature began its 2016 session concerned with its ability to maintain state revenue in the face of increasing Internet sales and their effect on sales tax collections.8 Senate Bill 106 was introduced during the session as: “An Act to provide for the collection оf sales taxes from certain remote sellers, to establish certain Legislative findings, and to declare an emergency.” S.B. 106, 2016 Legis. Assemb., 91st Sess. (S.D. 2016). The Act provided that any sellers of “tangible personal property” in South Dakota without a “physical presence in the state ... shall remit” sales tax according to the same procedures as sellers with “a physical presence[.]” Id. § 1. However, the Act limited this obligation to sellers with “gross revenue” from sales in South Dakota of over $100,000 per calendar year or with 200 or more “separate transactions” in the state within the same time frame. Id. §§ 1-2. The Act authorized the State tо bring a declaratory judgment action in circuit court against any person believed to meet the Act‘s criteria “to establish that the obligation to remit sales tax is applicable and valid under state and federal law.” Id. § 2. The Act further authorized a motion to dismiss or a motion for summary judgment in the action. Id. It also provided that the filing of the action “operates as an injunction during the pendency of the” suit prohibiting the State from enforcing the Act‘s obligations. Id. § 3. Other sections of the Act prohibited retroactive application of the obligation to remit sales tax and made the obligation prospective оnly from the date of dissolution or lifting of an injunction provided for by the Act. Id. §§ 5-6.
[¶6.] In addition to these provisions, the Act contained an emergency clause declaring it “necessary for the support of the state government” and making it effective “on the first day of the first month” falling at least fifteen days after signing by the Governor. Id. § 9.9 The Act‘s emergency clause made a two-thirds majority vote in both houses of the Legislature necessary for it to pass.
[¶7.] Senate Bill 106 was introduced in the South Dakota Senate and referred for a hearing by the Senate State Affairs Committee. S. Journal, 91st Sess., 150 (S.D. 2016). The hearing was held on February 17, 2016. Id. at 316. Several witnesses testified in open committee in support of the bill, including a representative of the Governor‘s Office.10 There was no
[¶8.] The bill had its first reading in the South Dakota House of Representatives on February 22, 2016, and was referred for a hearing by the House State Affairs Committee. H. Journal, 91st Sess., 621 (S.D. 2016). The hearing was held on February 29, 2016. Id. at 710. Once again, several witnesses testified in open committeе in support of the bill.11 Again, there was no opposition. Hearing II, supra note 10. The bill passed out of the House committee with a do pass recommendation. H. Journal at 710. It was debated and considered on the House floor on March 1, 2016. Id. at 740. The bill passed by a vote of sixty-four yeas and two nays. Id. The Governor signed the bill on March 22, 2016. S. Journal at 619. It fulfilled the two-thirds vote requirement for the emergency clause and took effect on May 1, 2016. Id.; S.B. 106, § 9.
[¶9.] Shortly after the Governor signed Senate Bill 106 into law, the South Dakota Department of Revenue began issuing written notices to sellers it believed met the requirements of Senate Bill 106. The notices: informed the sellers of the passage of the lаw; explained its requirements; advised the sellers to register for South Dakota sales tax licenses by a date certain; and warned that the failure to register could result in a declaratory judgment action as authorized by the law. Although the three sellers in this appeal, as well as a fourth seller, Systemax Inc., received notices, they did not register for sales tax licenses. The State filed a declaratory judgment action against Sellers in circuit court on April 28, 2016. The State sought a judicial declaration that the requirements of Senate Bill 106 were valid and applicable to Sellers, an order enjoining enforcemеnt of the law during the pendency of the action, and an injunction requiring Sellers to register for licenses to collect and remit sales tax.12
[¶10.] Following service of the State‘s complaint, Systemax Inc. voluntarily registered for a sales tax license and immediately began collecting taxes under the law. Therefore, the State dismissed Systemax from its lawsuit on May 19, 2016. The remaining sellers then sought to remove the State‘s action to the United States District Court for South Dakota on the basis of federal question jurisdiction. The District Court rejected removal and remanded the case to the South Dakota circuit court in January 2017.
[¶11.] After the Distriсt Court‘s remand, Sellers filed a joint answer, motion for summary judgment, and statement of material facts admitting: each lacked a physical presence in South Dakota; each met the sales and transaction requirements for
[¶12.] The circuit court did not hold a hearing. It entered its decision based on undisputed statements of material fact and the parties’ briefs. As part of its decision, the court noted that the parties agreed that no hearing was necessary. The court found no material issue of fact in dispute over Sellers’ lack of a physical presence in South Dakota. Observing its obligation to adhere to Supreme Court precedent prohibiting the imposition of an obligation to collect and remit sales tax on sellers with no physical presеnce in the State, the court granted Sellers’ motion for summary judgment. It enjoined the State from enforcing the obligation to collect and remit sales tax against Sellers. The State filed a timely notice of appeal of the court‘s order granting summary judgment.
Issue
Whether the circuit court erred in granting summary judgment to Sellers.
Standard of Review
[¶13.] We review a summary judgment de novo. Heitmann v. Am. Fam. Mut. Ins. Co., 2016 S.D. 51, ¶ 8, 883 N.W.2d 506, 508 (citing Ass Kickin Ranch, LLC v. N. Star Mut. Ins. Co., 2012 S.D. 73, ¶ 7, 822 N.W.2d 724, 726). We determine whether there are any “genuine issues of material fact” in the case and “whether the law was correctly applied.” Id. (quoting Ass Kickin Ranch, 2012 S.D. 73, ¶ 6, 822 N.W.2d at 726). If there are no genuine issues of material fact, “our review is limited to determining whether the [circuit] court correctly applied the law.” Id.
Analysis and Decision
[¶14.] Sellers argue that there is аn inadequate record for this Court‘s review in this matter. But Sellers moved for summary judgment and by doing so, limited the record available for review. See
[¶15.] In view of these undisputed facts and the Supreme Court‘s holdings in Bellas Hess and Quill, Senate Bill 106 could not impose a valid obligation on Sellers to collect and remit sales tax to this State because none of them had a physical presence in the state. See Bellas Hess, 386 U.S. at 758-60, 87 S.Ct. at 1392-93 (rejecting
[¶16.] Nonetheless, the State argues that the Supreme Court should reconsider Bellas Hess and Quill. It claims that in bringing this suit, the State has accepted Justice Kennedy‘s invitation in Direct Marketing fоr “[t]he legal system [to] find an appropriate case for [the Supreme] Court to reexamine” those decisions. — U.S. —, 135 S.Ct. at 1135 (Kennedy, J., concurring). According to the State, circumstances have changed since Bellas Hess and Quill, making Bellas Hess and Quill outdated. The State emphasizes that computer technology and software have advanced, South Dakota has streamlined its revenue laws, and the retail industry has evolved. The State also claims that the Supreme Court‘s application of the physical presence requirement to the collection of sales tax differs from its application of other Commerce Clause requirеments to similar collection obligations. This has led to inconsistent results.
[¶17.] In his concurrence in Direct Marketing, Justice Kennedy recognized many of the State‘s arguments supporting reconsideration of Bellas Hess and Quill. See — U.S. —, 135 S.Ct. at 1134 (Kennedy, J., concurring). Some of them go as far back as Justice Fortas‘s original dissent in Bellas Hess and Justice White‘s concurrence and dissent in Quill. See 386 U.S. at 760, 87 S.Ct. at 1393 (Fortas, J., dissenting); 504 U.S. at 321, 112 S.Ct. at 1916 (White, J., concurring in part and dissenting in part). Before joining the Supreme Court, Justice Gorsuch, while acknowledging Supreme Court precedent binding on lower courts, also raised similar concerns with Bellas Hess and Quill. See Direct Mktg. Ass‘n v. Brohl, 814 F.3d 1129, 1147 (10th Cir. 2016) (Gorsuch, Circuit Judge, concurring).
[¶18.] However persuasive the State‘s arguments on the merits of revisiting the issue, Quill has not been overruled. Quill remains the controlling precedent on the issue of Commerce Clause limitations on interstate collеction of sales and use taxes. We are mindful of the Supreme Court‘s directive to follow its precedent when it “has direct application in a case” and to leave to that Court “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed. 2d 526 (1989). Therefore, we affirm.
[¶19.] GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and WILBUR, Retired Justice, concur.
APPENDIX 1
AN ACT ENTITLED, An Act to provide for the collection of sales taxes from certain remote sellers, to establish certain Legislative findings, and to declare an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That the code be amended by adding a NEW SECTION to read:
Notwithstanding any other provision of law, any seller selling tangible personal property, products transferred electronically, or services for delivery into South Dakota, who does not have a physical presence in the state, is subject to chapters
- (1) The seller‘s gross revenue from the sale of tangible personal property, any product transferred electronically, or services delivered into South Dakota exceeds one hundred thousand dollars; or
- (2) The seller sold tangible personal property, any product transferred electronically, or services for delivery into South Dakota in two hundred or more separate transactions.
Section 2. That the code be amended by adding a NEW SECTION to read:
Notwithstanding any other provision of law, and whether or not the state initiates an audit or other tax collection procedure, the state may bring a declaratory judgment action under chapter
In this action, the court shall presume that the matter may be fully resolved through a motion to dismiss or a motion for summary judgment. However, if these motions do not resolve the action, any discovery allowed by the court may not exceed the provisions of subdivisions
The provisions of
Section 3. That the code be amended by adding a NEW SECTION to read:
The filing of the declaratory judgment action established in this Act by the state operates as an injunction during the pendency of the action, applicable to each state entity, prohibiting any state entity from enforcing the obligation in section 1 of this Act against any taxpayer who does not affirmatively consent or otherwise remit the sales tax on a voluntary basis. The injunction does not apply if there is a previous judgment from a court establishing the validity of the obligation in section 1 of this Act with respect to the particular taxpayer.
Section 4. That the code be amended by adding a NEW SECTION to read:
Any appeal from the decision with respect to the cause of action established by this Act may only be made to the state Supreme Court. The appeal shall be heard as expeditiously as possible.
Section 5. That the code be amended by adding a NEW SECTION to read:
No obligation to remit the sales tax required by this Act may be applied retroactively.
Section 6. That the code be аmended by adding a NEW SECTION to read:
If an injunction provided by this Act is lifted or dissolved, in general or with respect to a specific taxpayer, the state shall assess and apply the obligation established in section 1 of this Act from that date forward with respect to any taxpayer covered by the injunction.
Section 7. That the code be amended by adding a NEW SECTION to read:
A taxpayer complying with this Act, voluntarily or otherwise, may only seek a recovery of taxes, penalties, or interest by following the recovery procedures established pursuant to chapter
Nothing in this Act limits the ability of any taxpayer to obtain a refund for any other reason, including a mistake of fact or mathematical miscalculation of the applicable tax.
No seller who remits sales tax voluntarily or otherwise under this Act is liable to a purchaser who claims that the sales tax has been over-collected because a provision of this Act is later deemed unlawful.
Nothing in this Act affects the obligation of any purchaser from this state to rеmit use tax as to any applicable transaction in which the seller does not collect and remit or remit an offsetting sales tax.
Section 8. That the code be amended by adding a NEW SECTION to read:
The Legislature finds that:
- (1) The inability to effectively collect the sales or use tax from remote sellers who deliver tangible personal property, products transferred electronically, or services directly into South Dakota is seriously eroding the sales tax base of this state, causing revenue losses and imminent harm to this state through the loss of critical funding for state and local services;
- (2) The harm from the loss of revenue is especially serious in South Dakota because the state has no income tax, and sales and use tax revenues are essential in funding state and local services;
- (3) Despite the fact that a use tax is owed on tangible personal property, any product transferred electronically, or services delivered for use in this state, many remote sellers actively market sales as tax free or no sales tax transactions;
- (4) The structural advantages of remote sellers, including the absence of point-of-sale tax collection, along with the general growth of online retail, make clear that further erosion of this state‘s sales tax base is likely in the near future;
- (5) Remote sellers who make a substantial number of deliveries into or have large gross revenues from South Dakota benefit extensively from this state‘s market, including the economy generally, as well as state infrastructure;
- (6) In contrast with the expanding harms caused to the state from this exemption of sales tax collection duties for remote sellers, the costs of that collection have fallen. Given modern computing and software options, it is neither unusually difficult nor burdensome for remote sellers to collect and remit sales taxes associated with sales intо South Dakota;
- (7) As Justice Kennedy recently recognized in his concurrence in Direct Marketing Association v. Brohl, the Supreme Court of the United States should reconsider its doctrine that prevents states from requiring remote sellers to collect sales tax, and as the foregoing findings make clear, this argument has grown stronger, and the cause more urgent, with time;
- (8) Given the urgent need for the Supreme Court of the United States to reconsider this doctrine, it is necessary for this state to pass this law clarifying its immediate intent to require collection of sales taxes by remote sellers, and permitting the
- (9) Exрeditious review is necessary and appropriate because, while it may be reasonable notwithstanding this law for remote sellers to continue to refuse to collect the sales tax in light of existing federal constitutional doctrine, any such refusal causes imminent harm to this state;
- (10) At the same time, the Legislature recognizes that the enactment of this law places remote sellers in a complicated position, precisely because existing constitutional doctrine calls this law into question. Accordingly, the Legislature intends to clarify that the obligations created by this law would be appropriately stayed by the courts until the constitutionality of this law has been clearly established by a binding judgment, including, for example, a decision from the Supreme Court of the United States abrogating its existing doctrine, or a final judgment applicable to a particular taxpayer; and
- (11) It is the intent of the Legislature to apply South Dakota‘s sales and use tax obligations to the limit of federal and state constitutional doctrines, and to thereby clarify that South Dakota law permits the state to immediately argue in any litigation that such constitutional doctrine should be changed to permit the collection obligations of this Act.
Sectiоn 9. Whereas, this Act is necessary for the support of the state government and its existing public institutions, an emergency is hereby declared to exist. This Act shall be in full force and effect on the first day of the first month that is at least fifteen calendar days from the date this Act is signed by the Governor.
I certify that the attached Act originated in the SENATE as Bill No. 106
Kay Johnson
Secretary of the Senate
Matt Michels
President of the Senate
Attest:
Kay Johnson
Secretary of the Senate
Dean Wink
Speaker of the House
Attest:
Arlene Kvislen
Chief Clerk
Received at this Executive Office this 8th day of March 2016 at 9:20 AM.
Judy Swartz
for the Governor
The attached Act is hereby approved this 22nd day of March, A.D., 2016
Dennis Daugaard
Governor
STATE OF SOUTH DAKOTA, ss. Office of the Secretary of State
Filed March 22, 2016 at 11:26 o‘clock AM.
Shantel Krebs
Secretary of State
By ______ Asst. Secretary of State
Senate Bill No. 106
File No. ______
Chapter No. ______