Consumers are increasingly bombarded with advertisements based on our personal data. This explosion in targeted advertising is leading state policymakers to revisit the tax treatment of advertising, which has long been exempt from sales tax. Illinois, Utah, and Washington have recently enacted new taxes on some advertising, and other states are considering it.
Predictably, large advertising platforms like Google and Apple that would pay much of these advertising taxes are fighting back by challenging them in court. So when a judge in Maryland earlier this month ruled against that state’s tax on digital advertisements on the grounds that it violated federal law and the U.S. Constitution, the decision drew attention nationally.
There’s a bit less here than meets the eye, though. For one thing, even in Maryland, these rulings are far from the last word. The Maryland Tax Court, which issued them, is considered an administrative body; its decisions may be appealed through the state’s district and appellate courts, and state officials have already said they will do just that.
Moreover, the Maryland rulings are not binding on other states and do not shed much light on how courts elsewhere will rule. None of the legal arguments or rationales in the rulings are new. In fact, policymakers in Illinois, Utah, and Washington considered the legal arguments raised against the Maryland law and drafted their own statutes to address them.
As law professor (and ITEP board member) Darien Shanske said in response to the rulings:
“As a matter of law, this opinion will only matter in other states if it is persuasive on matters at issue in those states. (It will not even matter in Maryland if it does not persuade higher courts.) However, this opinion hardly addresses, much less persuasively, the main issues raised by Maryland’s tax, much less the taxes being challenged in Illinois, Utah or Washington.”
