Business Activity Tax Simplification Act of 2007

Mr. President, last month, the Government Accountability Office, GAO, released yet another report about the Trade Adjustment Assistance, TAA, health coverage tax credit, HCTC. The report confirms what many in Congress have been saying since the HCTC program began, the credit is not enough, the program has several barriers to enrollment, the premiums are prohibitively high for some workers because of medical underwriting, and the program is very confusing and expensive to administer. Although the GAO reported a $19 million decrease in costs of administration between 2003 and the end of fiscal year 2006, administrative costs still make up approximately 34 percent of the total spending for the HCTC.

The Trade Adjustment Assistance Act is up for reauthorization this year. It is long past time for Congress to focus on the problems with the TAA health coverage tax credit and reauthorization presents us with that opportunity. That is why I am introducing legislation today that will make much-needed improvements to the HCTC program. And, I am proud that the distinguished Senator from Ohio, Mr. Brown, is joining me in introducing this important bill. The TAA Health Coverage Improvement Act of 2007 offers solutions to many of the problems with the HCTC identified by the GAO. This legislation will go a long way to make the TAA health care tax credit a realistic option for displaced workers and their families.

When Congress passed the Trade Act of 2002, we made a promise to American workers that the potential loss of jobs will not equal the loss of health care coverage. Unfortunately, Congress has failed to make good on that promise. Since we passed this bill, I have heard from steel retirees and widows in my State about how unaffordable the TAA health care tax credit is. And I have been very frustrated, just as I was when this bill passed, that we were not able to make the credit more affordable and accessible for people who need it the most--laid- off workers and retirees with very limited income. We can fix these problems by including provisions from the TAA Health Coverage Improvement Act in the TAA reauthorization bill.

For a good number of supporters of the Trade Act of 2002, the health insurance tax credit was the single most important factor in overcoming their concerns about giving the President fast-track authority to move trade agreements through Congress. In my own judgment, the fast-track would not have passed Congress without the health care tax credit. The TAA health credit was the trade-off to balance the President's authority.

Yet, the success many of us envisioned for the health care tax credit has not been realized through implementation. The number of people who have been able to access the health care tax credit over the last 2 years is extremely disappointing. As of January 31, 2007, only 15,506 out of 252,280 who are eligible for the credit are enrolled

in the program. That is just over 6 percent, which means that almost 94 percent of those eligible are not participating.

In my home State of West Virginia, we have worked hard to promote the HCTC for trade-displaced workers. When Weirton Steel instituted significant layoffs, thousands of employees lost their jobs. In the aftermath, State and national officials, health plan staff, and representatives of the Independent Steelworkers Union and United Steel Workers worked collaboratively to provide continuous health care coverage for HCTC-eligible workers and retirees. The community really came together and worked around the clock to educate workers and retirees about their coverage options and to ensure they were enrolled in the HCTC.

Loss of employment is absolutely devastating to workers and their families. While health care coverage alone cannot replace job loss, it does help to ease the burden on displaced workers and their dependents. West Virginia is a model example of how HCTC can work. However, with only 6 percent of those eligible for HCTC enrolled across the country, there is still much more that needs to be done.

I must say to my colleagues that Congress has had a hand in these disappointing enrollment figures. We have ignored every opportunity to improve the health coverage tax credit and enhance the lives of workers displaced by trade. Members of this body have previously voted against TAA bills that would have extended Trade Adjustment Assistance to service workers and also addressed some of the problems the GAO has identified with the health coverage credit.

The TAA Health Coverage Improvement Act makes long overdue improvements to the TAA health care tax credit. First, this legislation addresses the issue of affordability. In addition to the GAO, several consumer advocacy groups and research organizations, including the Commonwealth Fund, the Center on Budget and Policy Priorities, and Families USA, have cited affordability of the credit as the primary reason for low participation in the HCTC program. The bottom line is that a 65 percent subsidy is not enough. With a 65 percent credit, an eligible individual still has to pay an average of $2,104 in annual premium costs for single coverage plus additional amounts for deductibles and co-payments. This figure is particularly astounding given the fact that the average worker, while actively employed and earning a paycheck, paid just $627 annually in 2006 for single employer-sponsored health insurance coverage. In other words, if you lose your job, you have to pay more than three times as much for health insurance, even if you get the HCTC. The TAA Health Coverage Improvement Act makes the credit more affordable by increasing the subsidy amount to 95 percent.

This legislation also addresses the issue of affordability by placing limits on the use of the individual market, as Congress intended under the original law. The Trade Act of 2002 specified that the health insurance credit could not be used for the purchase of health insurance coverage in the individual market except for HCTC-eligible workers who previously had a private, non-group coverage policy 30 days prior to separation from employment. However, States have been allowed by this Administration to create State-based coverage options in the individual market for any HCTC beneficiaries, including those who did not have individual market coverage one month prior to separation from employment.

Because of the Administration's interpretation of the law, there are people who had employer-based coverage prior to separation from employment who are now being covered in the individual market. This was not the intent of the law. To make matters worse, this interpretation undermines the consumer protections set forth in the law because individual market plans are allowed to vary premiums based on age and medical status. In one state that GAG reviewed for a previous report, because of medical underwriting, HCTC recipients in less-than-perfect health were charged almost 6 times the premiums charged to recipients rated in the healthiest category. The legislation I am introducing today addresses this problem by clarifying that States can only designate individual market coverage within guidelines of 30-day restriction and by requiring individual market plans to be community- rated.

Second, this legislation guarantees that eligible workers will have access to comprehensive group health coverage. Group coverage is what people know. The vast majority of laid-off workers and PBGC retirees had employer-sponsored group coverage prior to losing their jobs or pension benefits. The TAA Health Coverage Improvement Act designates the Federal Employees Health Benefit Plan, FEHBP, as a qualified group option in every State, so that displaced workers Nationwide will have access to the same type of affordable, comprehensive coverage they were used to when they were employed.

Third, the TAA Health Coverage Act clarifies the 3 month continuous coverage requirement. Under the original TAA statute, displaced workers are required to maintain 3 months of continuous health insurance coverage in order to qualify for certain consumer protections. Those protections are guaranteed issue, no preexisting condition exclusion, comparable premiums, and comparable benefits. Congress intended this 3 month period to be counted as the 3 months prior to separation from employment. However, the administration has interpreted the 3 month requirement as 3 months of health insurance coverage prior to enrollment in the new health plan, which usually is after separation from employment and after certification of TAA eligibility. Many laid- off workers and PBGC recipients cannot afford to maintain health coverage in the months between losing their jobs and TAA certification and, therefore, lose eligibility for the statutorily-provided consumer protections. This legislation corrects this problem by clarifying that three months of continuous coverage means 3 months prior to separation from employment.

Fourth, this bill allows spouses and dependents to receive the health coverage tax credit. Over the last 2 years, younger spouses and dependents of Medicare-eligible individuals have not been able to receive the subsidy because eligibility runs through the worker or retiree. This technicality is unfair to individuals who rely on health coverage through their spouses or parents. The TAA Health Coverage Improvement Act allows younger spouses and dependent children to retain eligibility for the health coverage tax credit in the event the qualified beneficiary becomes eligible for Medicare.

Finally, this legislation streamlines the HCTC enrollment process and makes it easier for trade-displaced workers to access health insurance coverage. According to GAO, two of the factors contributing to low participation include the complex nature of the HCTC program and the inability of workers to pay 100 percent of the premium during the up to 3 months before they begin to receive advance payments. The TAA Health Coverage Improvement Act improves consumer information about the HCTC by requiring that the Treasury Secretary's eligibility notice include a description of the HCTC program; specific contact information for state offices responsible for determining eligibility and providing enrollment assistance; a list of the HCTC coverage options in the sate; and a statement informing eligible individuals of the deadline to enroll in HCTC in order to avoid lapses in coverage. Additionally, our legislation includes a presumptive eligibility provision that allows displaced workers to enroll in a qualified health plan and receive the HCTC immediately upon application to the Department of Labor for certification. There is also a provision which directs the Treasury Secretary to pay 100 percent of the cost of premiums directly to the health plans during the months TAA-eligible workers are waiting for advance payment to begin.

As a former Governor, I know how important Trade Adjustment Assistance is to individuals who have lost their jobs due to trade. In West Virginia, thousands of workers have lost their jobs as a result of trade policy. While adjusting to the loss of employment, these individuals still have to pay mortgages, put food on the table, and care for their families. Finding affordable health care adds a significant burden to their worries. The TAA health coverage tax credit is designed

to help American workers retain health insurance coverage during this very difficult transition.

Unfortunately, the HCTC program is not living up to its potential. The Government Accountability Office has given us a very specific diagnosis of the problems. Now, it is up to us to fix them. I look forward to working with my colleagues to pass this important legislation in conjunction with reauthorization of the Trade Adjustment Assistance program.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I want to speak about the bill I am introducing today with Senator Crapo, the Business Activity Tax Simplification Act of 2007. Our bill tries to address a very important question: How should States tax businesses that locate their operations in a few States, but have customers and earn income in many States? This issue has grown in importance in recent years, and the Supreme Court's decision last week not to get involved in the issue raises the stakes even further.

The crux of the issue is this: A majority of States impose corporate income and other so-called ``business activity taxes'' only when companies have ``physical presence,'' such as employees or property, in their States. However, some States contend that the mere presence of a business's customers, or an ``economic presence,'' is all that is necessary to impose a business activity tax. These companies are facing a confusing and costly assortment of State and local tax rules, some enacted by legislatures and others imposed upon them by State revenue authorities and upheld by State courts.

Senator Crapo and I introduced similar legislation in the 109th Congress to try to address this problem of double taxation and tax practices that vary from State to State. That bill came close to passing the House, but some last-minute objections were raised. Now, the need for legislation and congressional action has taken on new urgency, and we have revised the bill to address many of the concerns expressed last year.

Just last week, the U.S. Supreme Court denied certiorari in two cases that challenged the constitutionality of State taxation of out-of-State companies with no physical presence in a State. The States involved in these cases, West Virginia and New Jersey, asserted theories of economic nexus to tax out-of-State corporations. They claimed that because some customers of such corporations reside in the State, even though the corporation is not physically present, they are subject to business activity taxes.

The first case involves a credit card company headquartered in Delaware. The bank issued credit cards nationwide, including credit cards issued to West Virginia customers. The bank had no property or employees, no office or any other physical presence, in the State. The second case involves a Delaware holding company that licensed intellectual property trademarks and trade names to a customer that does business in New Jersey. The holding company itself had no offices, employees, or property in New Jersey, and did not otherwise have a physical presence in the State. In both cases, the State courts ruled that the out-of-State corporation was taxable.

What is so disappointing about the Supreme Court's silence on this issue is the fact that these State court decisions conflict with an earlier Supreme Court ruling. In 1992, in Quill Corp. v. North Dakota, the Supreme Court prohibited States from forcing out-of-State corporations from collecting sales and use tax, unless the corporation has a physical presence in the taxing State. However, some State courts have held that the physical presence test established by Quill creates no such limitations on the imposition of business activity taxes.

Currently, 19 States take the position that a State has the right to tax a business merely because it has a customer within the State, even if the business has no physical presence in the State whatsoever.

These States' actions in pursuing these taxes have caused uncertainty and widespread litigation, so much so that it has created a chilling effect on foreign and interstate commerce. I have spoken out against double taxation on many issues in the past, and the double tax in these cases, while not as large, is just as wrong.

Let me be clear about this: I know that several Governors and State revenue commissioners have spoken out against the legislation because they don't like the Federal Government telling them what they can and cannot tax. They are also concerned about any revenue they might lose as a result. But if the States are collecting a tax they shouldn't be collecting in the first place, the fact that they might lose a small amount of revenue is not the most persuasive argument, in my view.

I believe Congress has a responsibility to create a uniform nexus standard for tax purposes so that goods and services can flow freely between the States. Firm guidance on what activities can be conducted within a State will provide certainty to tax administrators and businesses, reduce multiple taxation or the same income, and will reduce compliance and enforcement costs for States and businesses alike.

The last time Congress acted on this issue was in 1959, when Public Law 86-272 was enacted to prohibit States from imposing ``income taxes'' on sales of ``tangible personal property'' by a business whose sole activity within a State

was soliciting sales. No one can deny that in the almost 50 years since, interstate commerce has taken on a whole new character. New technologies allow companies headquartered in one State to provide services to consumers across the country. The Internet is replacing bricks-and-mortar stores. Companies and consumers are increasingly linked across State lines.

The Business Activity Tax Simplification Act of 2007 addresses these changes over the last 48 years both modernizing Public Law 86-272 and codifying the physical presence standard. Our bill extends the protections of the 1959 law to include solicitation activities performed in connection with all sales and transactions, not just sales of tangible personal property. The bill protects the free flow of information, including broadcast signals from outside the State, from becoming the basis for taxation of out-of-State businesses.

BATSA also protects activities where the business is a consumer in the State. It makes little sense to impose tax on out-of-State businesses that purchases goods or services from an in-State company. Obviously, in this very common scenario, the out-of-State business is not using these goods or services to generate any revenue in the State. Why should they be subject to tax?

Most importantly, BATSA codifies the physical presence standard. States and localities can only impose business activity taxes on businesses within their jurisdiction that have employees in the State, or real or tangible personal property that is either leased or owned. It is consistent with current law and sound tax policy, which holds that a tax should not be imposed by a State unless that State provides benefits or protections to the taxpayer. Further, the physical presence standard is the basis for each and every one of our treaties with foreign nations--adoption of a more nebulous standard by the States undermines these international treaties.

We need to act now. Already, State legislatures are interpreting the court's denial of cert as an affirmation of their position that they are free to enact whatever policies affecting interstate commerce that are beneficial to their particular State revenue needs, regardless of the national impact. Because the court will not review their nexus standard and Congress has not acted, States now have an ideal opportunity to raise revenues from out-of-State corporations regardless of the national impact.

Only 3 days after the Supreme Court denied cert, the New Hampshire Assembly added an amendment to the State budget at 3:40 a.m. to allow the State to collect revenue from out-of-State businesses. The denial of cert thereby resulted almost immediately in a $10 million to $100 million windfall for New Hampshire. No one can deny that this was an extremely aggressive action; why else would the legislature have taken such drastic measures to tack on this amendment it? the wee hours of the morning?

States are clearly overreaching in their efforts to collect these taxes, and it creates a difficult situation for businesses. It is laughable to think that a company would decide to cut off all transactions with individuals within a certain State to avoid similar laws. And so they will have to start paying taxes to States where they start generating no revenue, hiring no employees, and contributing nothing to the State's economy from their phantom presence aside from these taxes. But these companies are not going to stand idly by and be double-taxed; they will simply declare less income in their home States as a result.

I know that my legislation with Senator Crapo has raised concerns in the past. The States have argued that BAT legislation represents an intrusion into their authority to govern. But I believe the contrary: A fundamental aspect of American federalism is that Congress has the authority and responsibility under the commerce clause to ensure that interstate commerce is not burdened by State actions.

In fact, the exercise of such congressional power is necessary in order to prevent excessive burdens from being placed on businesses engaged on interstate activity by virtue of their customer's residing in a particular State. Congress must act to ensure certainty, predictability, and fairness of taxation of multistate corporations. The lack of a bright-line physical presence standard encourages each State to act in its own self interest by taking action to maximize its revenues, regardless of the potential double taxation that results.

Let me address a few concerns that have been raised about the bill. Opponents claim that BATSA includes so many exceptions to the physical presence standard that large, multistate companies will utilize the legislation to ensure they pay minimum State tax nationwide. But our bill explicitly States that it preserves States' authority to adopt or continue to use their own tax compliance tools.

In response to those who say that this legislation will be a huge hit to State budgets, the figures just don't add up. There have been a number of studies done, but even the highest revenue estimate represents only a very small percentage of the total amount of business activity taxes collected by the States. The studies leave out one important fact, however: Companies affected by double-taxation are going to declare less income in their home States, if they have to pay taxes on that same income to another State.

Let me cite just one example from a company in my State. In 2005, Citigroup paid 63 percent of all it State and local taxes to New York State and New York City, all based on physical presence in the State and the city. As more States follow the lead of New Hampshire, the city and State of New York will be getting less from Citibank, one way or another, as they won't want to be double taxed, once by New York because of our physical presence and again in New Hampshire and other States because they have customers in those States. This is why any revenue loss estimates from any city or State are overblown.

In short, this is no longer a theoretical discussion. Federal legislation is required to stop this food fight.

I believe that Congress has a duty to prevent some States from impeding the free flow and development of interstate commerce and to prevent double taxation. That is why I am asking my colleagues on both sides of the aisle, including the chairman and ranking member of the Finance Committee, to carefully consider this legislation.

Mr. President, I want to speak about the bill I am introducing today with Senator Crapo, the Business Activity Tax Simplification Act of 2007. Our bill tries to address a very important question: How should States tax businesses that locate their operations in a few States, but have customers and earn income in many States? This issue has grown in importance in recent years, and the Supreme Court's decision last week not to get involved in the issue raises the stakes even further.

The crux of the issue is this: A majority of States impose corporate income and other so-called ``business activity taxes'' only when companies have ``physical presence,'' such as employees or property, in their States. However, some States contend that the mere presence of a business's customers, or an ``economic presence,'' is all that is necessary to impose a business activity tax. These companies are facing a confusing and costly assortment of State and local tax rules, some enacted by legislatures and others imposed upon them by State revenue authorities and upheld by State courts.

Senator Crapo and I introduced similar legislation in the 109th Congress to try to address this problem of double taxation and tax practices that vary from State to State. That bill came close to passing the House, but some last-minute objections were raised. Now, the need for legislation and congressional action has taken on new urgency, and we have revised the bill to address many of the concerns expressed last year.

Just last week, the U.S. Supreme Court denied certiorari in two cases that challenged the constitutionality of State taxation of out-of-State companies with no physical presence in a State. The States involved in these cases, West Virginia and New Jersey, asserted theories of economic nexus to tax out-of-State corporations. They claimed that because some customers of such corporations reside in the State, even though the corporation is not physically present, they are subject to business activity taxes.

The first case involves a credit card company headquartered in Delaware. The bank issued credit cards nationwide, including credit cards issued to West Virginia customers. The bank had no property or employees, no office or any other physical presence, in the State. The second case involves a Delaware holding company that licensed intellectual property trademarks and trade names to a customer that does business in New Jersey. The holding company itself had no offices, employees, or property in New Jersey, and did not otherwise have a physical presence in the State. In both cases, the State courts ruled that the out-of-State corporation was taxable.

What is so disappointing about the Supreme Court's silence on this issue is the fact that these State court decisions conflict with an earlier Supreme Court ruling. In 1992, in Quill Corp. v. North Dakota, the Supreme Court prohibited States from forcing out-of-State corporations from collecting sales and use tax, unless the corporation has a physical presence in the taxing State. However, some State courts have held that the physical presence test established by Quill creates no such limitations on the imposition of business activity taxes.

Currently, 19 States take the position that a State has the right to tax a business merely because it has a customer within the State, even if the business has no physical presence in the State whatsoever.

These States' actions in pursuing these taxes have caused uncertainty and widespread litigation, so much so that it has created a chilling effect on foreign and interstate commerce. I have spoken out against double taxation on many issues in the past, and the double tax in these cases, while not as large, is just as wrong.

Let me be clear about this: I know that several Governors and State revenue commissioners have spoken out against the legislation because they don't like the Federal Government telling them what they can and cannot tax. They are also concerned about any revenue they might lose as a result. But if the States are collecting a tax they shouldn't be collecting in the first place, the fact that they might lose a small amount of revenue is not the most persuasive argument, in my view.

I believe Congress has a responsibility to create a uniform nexus standard for tax purposes so that goods and services can flow freely between the States. Firm guidance on what activities can be conducted within a State will provide certainty to tax administrators and businesses, reduce multiple taxation or the same income, and will reduce compliance and enforcement costs for States and businesses alike.

The last time Congress acted on this issue was in 1959, when Public Law 86-272 was enacted to prohibit States from imposing ``income taxes'' on sales of ``tangible personal property'' by a business whose sole activity within a State

was soliciting sales. No one can deny that in the almost 50 years since, interstate commerce has taken on a whole new character. New technologies allow companies headquartered in one State to provide services to consumers across the country. The Internet is replacing bricks-and-mortar stores. Companies and consumers are increasingly linked across State lines.

The Business Activity Tax Simplification Act of 2007 addresses these changes over the last 48 years both modernizing Public Law 86-272 and codifying the physical presence standard. Our bill extends the protections of the 1959 law to include solicitation activities performed in connection with all sales and transactions, not just sales of tangible personal property. The bill protects the free flow of information, including broadcast signals from outside the State, from becoming the basis for taxation of out-of-State businesses.

BATSA also protects activities where the business is a consumer in the State. It makes little sense to impose tax on out-of-State businesses that purchases goods or services from an in-State company. Obviously, in this very common scenario, the out-of-State business is not using these goods or services to generate any revenue in the State. Why should they be subject to tax?

Most importantly, BATSA codifies the physical presence standard. States and localities can only impose business activity taxes on businesses within their jurisdiction that have employees in the State, or real or tangible personal property that is either leased or owned. It is consistent with current law and sound tax policy, which holds that a tax should not be imposed by a State unless that State provides benefits or protections to the taxpayer. Further, the physical presence standard is the basis for each and every one of our treaties with foreign nations--adoption of a more nebulous standard by the States undermines these international treaties.

We need to act now. Already, State legislatures are interpreting the court's denial of cert as an affirmation of their position that they are free to enact whatever policies affecting interstate commerce that are beneficial to their particular State revenue needs, regardless of the national impact. Because the court will not review their nexus standard and Congress has not acted, States now have an ideal opportunity to raise revenues from out-of-State corporations regardless of the national impact.

Only 3 days after the Supreme Court denied cert, the New Hampshire Assembly added an amendment to the State budget at 3:40 a.m. to allow the State to collect revenue from out-of-State businesses. The denial of cert thereby resulted almost immediately in a $10 million to $100 million windfall for New Hampshire. No one can deny that this was an extremely aggressive action; why else would the legislature have taken such drastic measures to tack on this amendment it? the wee hours of the morning?

States are clearly overreaching in their efforts to collect these taxes, and it creates a difficult situation for businesses. It is laughable to think that a company would decide to cut off all transactions with individuals within a certain State to avoid similar laws. And so they will have to start paying taxes to States where they start generating no revenue, hiring no employees, and contributing nothing to the State's economy from their phantom presence aside from these taxes. But these companies are not going to stand idly by and be double-taxed; they will simply declare less income in their home States as a result.

I know that my legislation with Senator Crapo has raised concerns in the past. The States have argued that BAT legislation represents an intrusion into their authority to govern. But I believe the contrary: A fundamental aspect of American federalism is that Congress has the authority and responsibility under the commerce clause to ensure that interstate commerce is not burdened by State actions.

In fact, the exercise of such congressional power is necessary in order to prevent excessive burdens from being placed on businesses engaged on interstate activity by virtue of their customer's residing in a particular State. Congress must act to ensure certainty, predictability, and fairness of taxation of multistate corporations. The lack of a bright-line physical presence standard encourages each State to act in its own self interest by taking action to maximize its revenues, regardless of the potential double taxation that results.

Let me address a few concerns that have been raised about the bill. Opponents claim that BATSA includes so many exceptions to the physical presence standard that large, multistate companies will utilize the legislation to ensure they pay minimum State tax nationwide. But our bill explicitly States that it preserves States' authority to adopt or continue to use their own tax compliance tools.

In response to those who say that this legislation will be a huge hit to State budgets, the figures just don't add up. There have been a number of studies done, but even the highest revenue estimate represents only a very small percentage of the total amount of business activity taxes collected by the States. The studies leave out one important fact, however: Companies affected by double-taxation are going to declare less income in their home States, if they have to pay taxes on that same income to another State.

Let me cite just one example from a company in my State. In 2005, Citigroup paid 63 percent of all it State and local taxes to New York State and New York City, all based on physical presence in the State and the city. As more States follow the lead of New Hampshire, the city and State of New York will be getting less from Citibank, one way or another, as they won't want to be double taxed, once by New York because of our physical presence and again in New Hampshire and other States because they have customers in those States. This is why any revenue loss estimates from any city or State are overblown.

In short, this is no longer a theoretical discussion. Federal legislation is required to stop this food fight.

I believe that Congress has a duty to prevent some States from impeding the free flow and development of interstate commerce and to prevent double taxation. That is why I am asking my colleagues on both sides of the aisle, including the chairman and ranking member of the Finance Committee, to carefully consider this legislation.

Mr. President, I would like to thank my colleague from New York, Senator Schumer, for the work he has done on this bill. He shares my grave concerns about the devastating impact that legal interpretations of Public Law 86-272 are having on foreign and interstate commerce. I'm pleased that we can work together in a bipartisan effort to make changes to a law that is in serious need of updating and clarification in view of the more service-oriented economy we have today driven in large part by modern technology's profound transformation of business transactions. This is why we are introducing the Business Activity Tax Simplification Act of 2007, or BATSA, today.

Congress has a Constitutional responsibility to ensure that interstate commerce is not unduly burdened by State actions, including unfair and burdensome taxation of such commerce. Public Law 86-272 was enacted almost 50 years ago, for just these purposes. Ways of conducting multi-state business have changed, and, in the absence of any clarifying legislation, some state courts have interpreted taxation activity under an ``economic presence'' approach. This approach does not reflect the intent or spirit of the Commerce Clause of the Constitution; furthermore, it creates a climate of uncertainty that inhibits business expansion and innovation. Businesses have to take into account the very real possibility that they will be taxed multiple times for the same business activity. These ``business activity taxes'' are certainly appropriate when a business has a physical presence in a State; these taxes are inappropriate when imposed by a State where that business's customer happens to reside, but in which the business has no physical presence.

States' efforts to impose improper business activity taxes have been furthered by the Supreme Court's recent silence on this issue. Recent State court rulings are in conflict with the high Court's ruling in Quill Corp. v. North Dakota in 1992. In that ruling,

the Supreme Court prohibited States from forcing out-of-state corporations to collect sales and use taxes unless such corporation had a physical presence in the taxing State. As my colleague from New York pointed out a few minutes ago, State courts in both New Jersey and West Virginia have held that the physical presence test in Quill only applies to sales and use taxes, not business activity taxes. I share my colleague's deep concern with the fact that the appeals of these two cases to the Supreme Court were denied certiorari just last week. This denial underscores the urgency of BATSA.

This effort by a large number of States to impose business activity taxes based on economic presence has the potential to open a Pandora's Box of negative implications for businesses. Without clarification by Congress, States will be free to enact revenue-raising nexus legislation and policies that, by definition, will not and cannot take into account the national impact of such activities. The eleventh-hour enactment of economic nexus legislation by the New Hampshire State Legislature just days after the Supreme Court denial of certiorari in the New Jersey and West Virginia cases is a sign of things to come. For many businesses, this will serve as a death knell for growth and expansion.

BATSA will help clarify the intent of Public Law 86-272. BATSA codifies the ``physical presence'' standard and will eliminate confusion for State tax administrators and businesses alike. It's consistent with current law and the notion that a tax should not be imposed by a State unless that State provides benefits or protections to the taxpayer. BATSA clarifies that an out-of-state business must have nexus under both the Due Process Clause and the Commerce Clause. This standard is also consistent with the standards we have in place with regard to our trading partners abroad.

BATSA modernizes Public Law 86-272 by extending the protections under that law to include solicitation activities performed in connection with all sales and transactions, not just tangible personal property. BATSA applies to all business activity taxes, not just net income taxes. This includes gross receipts taxes, gross profits taxes, single business taxes, franchise taxes, capital stock taxes and business and occupation taxes. It does not apply to transaction taxes such as sales and use taxes.

BATSA protects the free flow of information, critical in our modern era of Internet business and protects the activities where the business is a consumer in that State. And, as my colleague, Senator Schumer, rightly pointed out, it is counterintuitive to impose taxes on an out- of-state company purchasing goods or services from an in-State company, since the out-of-state company isn't generating any revenue for the State.

BATSA upholds the approach of disregarding certain de minimus activities codified in Public Law 86-272.

States have argued that BATSA will result in substantial lost State tax revenue. In fact, according to the Congressional Budget Office, the projected total loss of revenue to states from BATSA in year one of enactment represents just 0.2 percent of all State and local taxes paid by businesses in 2005. And the CBO cost estimate is actually less than the cost claimed by the National Governor's Association in its own revenue estimates.

I will tell you what BATSA does not do. BATSA does not help large companies avoid paying their fair share of State taxes, stating explicitly that States retain the authority to adopt or continue to use anti-tax avoidance compliance tools. It expressly endorses statutory and regulatory tools at States' disposal to combat tax abuse. Industry and activity-specific safe harbors included in prior bills do not exist in this legislation.

In the glaring absence of Supreme Court clarification on Quill Corp. v. North Dakota, and in the presence of confusing state court interpretations of that decision and ongoing, and legally-creative revenue-raising schemes by States, it's imperative that Congress act now to preserve the free flow of commerce between States. The Business Activity Tax Simplification Act of 2007 provides that clarification. BATSA ensures that one standard of taxation applies for taxing multi- state companies, so that companies are not unjustly taxed multiple times by different States on the same income. I hope that our colleagues here in the Senate will support this important legislation that will protect the business expansion in our country that keeps our economy competitive and thriving.

Mr. President, I would like to thank my colleague from New York, Senator Schumer, for the work he has done on this bill. He shares my grave concerns about the devastating impact that legal interpretations of Public Law 86-272 are having on foreign and interstate commerce. I'm pleased that we can work together in a bipartisan effort to make changes to a law that is in serious need of updating and clarification in view of the more service-oriented economy we have today driven in large part by modern technology's profound transformation of business transactions. This is why we are introducing the Business Activity Tax Simplification Act of 2007, or BATSA, today.

Congress has a Constitutional responsibility to ensure that interstate commerce is not unduly burdened by State actions, including unfair and burdensome taxation of such commerce. Public Law 86-272 was enacted almost 50 years ago, for just these purposes. Ways of conducting multi-state business have changed, and, in the absence of any clarifying legislation, some state courts have interpreted taxation activity under an ``economic presence'' approach. This approach does not reflect the intent or spirit of the Commerce Clause of the Constitution; furthermore, it creates a climate of uncertainty that inhibits business expansion and innovation. Businesses have to take into account the very real possibility that they will be taxed multiple times for the same business activity. These ``business activity taxes'' are certainly appropriate when a business has a physical presence in a State; these taxes are inappropriate when imposed by a State where that business's customer happens to reside, but in which the business has no physical presence.

States' efforts to impose improper business activity taxes have been furthered by the Supreme Court's recent silence on this issue. Recent State court rulings are in conflict with the high Court's ruling in Quill Corp. v. North Dakota in 1992. In that ruling,

the Supreme Court prohibited States from forcing out-of-state corporations to collect sales and use taxes unless such corporation had a physical presence in the taxing State. As my colleague from New York pointed out a few minutes ago, State courts in both New Jersey and West Virginia have held that the physical presence test in Quill only applies to sales and use taxes, not business activity taxes. I share my colleague's deep concern with the fact that the appeals of these two cases to the Supreme Court were denied certiorari just last week. This denial underscores the urgency of BATSA.

This effort by a large number of States to impose business activity taxes based on economic presence has the potential to open a Pandora's Box of negative implications for businesses. Without clarification by Congress, States will be free to enact revenue-raising nexus legislation and policies that, by definition, will not and cannot take into account the national impact of such activities. The eleventh-hour enactment of economic nexus legislation by the New Hampshire State Legislature just days after the Supreme Court denial of certiorari in the New Jersey and West Virginia cases is a sign of things to come. For many businesses, this will serve as a death knell for growth and expansion.

BATSA will help clarify the intent of Public Law 86-272. BATSA codifies the ``physical presence'' standard and will eliminate confusion for State tax administrators and businesses alike. It's consistent with current law and the notion that a tax should not be imposed by a State unless that State provides benefits or protections to the taxpayer. BATSA clarifies that an out-of-state business must have nexus under both the Due Process Clause and the Commerce Clause. This standard is also consistent with the standards we have in place with regard to our trading partners abroad.

BATSA modernizes Public Law 86-272 by extending the protections under that law to include solicitation activities performed in connection with all sales and transactions, not just tangible personal property. BATSA applies to all business activity taxes, not just net income taxes. This includes gross receipts taxes, gross profits taxes, single business taxes, franchise taxes, capital stock taxes and business and occupation taxes. It does not apply to transaction taxes such as sales and use taxes.

BATSA protects the free flow of information, critical in our modern era of Internet business and protects the activities where the business is a consumer in that State. And, as my colleague, Senator Schumer, rightly pointed out, it is counterintuitive to impose taxes on an out- of-state company purchasing goods or services from an in-State company, since the out-of-state company isn't generating any revenue for the State.

BATSA upholds the approach of disregarding certain de minimus activities codified in Public Law 86-272.

States have argued that BATSA will result in substantial lost State tax revenue. In fact, according to the Congressional Budget Office, the projected total loss of revenue to states from BATSA in year one of enactment represents just 0.2 percent of all State and local taxes paid by businesses in 2005. And the CBO cost estimate is actually less than the cost claimed by the National Governor's Association in its own revenue estimates.

I will tell you what BATSA does not do. BATSA does not help large companies avoid paying their fair share of State taxes, stating explicitly that States retain the authority to adopt or continue to use anti-tax avoidance compliance tools. It expressly endorses statutory and regulatory tools at States' disposal to combat tax abuse. Industry and activity-specific safe harbors included in prior bills do not exist in this legislation.

In the glaring absence of Supreme Court clarification on Quill Corp. v. North Dakota, and in the presence of confusing state court interpretations of that decision and ongoing, and legally-creative revenue-raising schemes by States, it's imperative that Congress act now to preserve the free flow of commerce between States. The Business Activity Tax Simplification Act of 2007 provides that clarification. BATSA ensures that one standard of taxation applies for taxing multi- state companies, so that companies are not unjustly taxed multiple times by different States on the same income. I hope that our colleagues here in the Senate will support this important legislation that will protect the business expansion in our country that keeps our economy competitive and thriving.