Harvard Journal of Law & Technology, Vol. 13, No. 3 (Summer 2000), pp. 549-565


Elsewhere on these pages, the distinguished economist Charles McLure begins his contribution to the debate over taxation of electronic commerce by observing that “America is focusing on the wrong issues in debating the taxation of electronic commerce ....” He proceeds to provide a fundamental critique of the states' existing sales tax regimes and he lays out a roadmap for radical reform of the system that would, in the course of curing the basic defects in the existing state sales tax structure, incidentally resolve many of the issues that currently dominate the debate over taxing electronic commerce. I do not disagree with McLure — over the years I have learned better. Radical reform of the sales tax would clearly provide an antidote for many of the ills that plague it, including those reflected in the debate over taxation of electronic commerce. Nevertheless, by reason of training — we lawyers are weaned on the concept of stare decisis — and, perhaps, of temperament, my observations will focus on the issues that are fueling the current debate over taxation of electronic commerce, and on the efforts to resolve them, with the recognition that, at a more profound level of analysis, they may be dismissed as merely “tinkering with the existing system.”