{"id":7011,"date":"2026-08-11T15:58:09","date_gmt":"2026-08-11T13:58:09","guid":{"rendered":"https:\/\/leyton.com\/us\/?post_type=article&p=7011"},"modified":"2026-08-11T15:58:10","modified_gmt":"2026-08-11T13:58:10","slug":"retroactive-online-marketplace-liability-an-emerging-risk-in-sales-tax-enforcement","status":"publish","type":"article","link":"https:\/\/leyton.com\/us\/insights\/articles\/retroactive-online-marketplace-liability-an-emerging-risk-in-sales-tax-enforcement\/","title":{"rendered":"Retroactive Online Marketplace Liability: An Emerging Risk in Sales Tax Enforcement\u00a0"},"content":{"rendered":"\n

While economic nexus<\/strong><\/a> rules applicable to marketplace facilitators have\u00a0largely stabilized\u00a0in recent years, state tax authorities are increasingly asserting retroactive sales tax liabilities for prior tax periods. As a result, historical compliance exposure has become a significant area of risk for online marketplace facilitators, underscoring the importance of evaluating prior\u00a0filing\u00a0obligations and potential liabilities.\u00a0<\/p>\n\n\n\n

A pair of\u00a0recent\u00a02026 state court decisions from South Carolina and Wisconsin highlights a significant and\u00a0converging trend in state sales tax jurisprudence affecting online marketplace platforms. In\u00a0Amazon Services, LLC v. South Carolina Department of Revenue<\/em>\u00a0and\u00a0StubHub, Inc. v. Wisconsin Department of Revenue<\/em>, the courts examined the potential sales tax obligations of marketplace operators under statutory frameworks that predated marketplace facilitator laws.\u00a0\u00a0<\/p>\n\n\n\n

Taken together, these decisions suggest that a marketplace platform’s active involvement in facilitated transactions may be sufficient to classify the platform as a taxable “seller” or a party “engaged in the business of selling,” thereby imposing an obligation to collect and remit sales tax on behalf of third-party sellers, even for tax periods preceding the enactment of marketplace facilitator statutes in South Carolina and Wisconsin. <\/p>\n\n\n\n

In both cases, the courts rejected arguments that the platforms functioned merely as intermediaries or facilitators without independent sales tax collection obligations.\u00a0<\/p>\n\n\n\n

The decisions also undermine\u00a0taxpayer\u00a0arguments that the enactment of marketplace facilitator legislation implicitly foreclosed liability under prior statutory frameworks. <\/p>\n\n\n\n

As a result, these rulings may influence how other states interpret and enforce pre-marketplace sales tax laws, particularly where existing statutes broadly define the persons responsible for collecting and remitting sales tax.\u00a0<\/p>\n\n\n\n

Case Backgrounds and the Pre-Marketplace Statutory Framework: South Carolina and Wisconsin<\/strong> <\/h2>\n\n\n\n

A Transactional Approach: Stubhub, Inc. V. Wisconsin Department of Revenue<\/em> <\/h3>\n\n\n\n

In\u00a0StubHub, Inc. v. Wisconsin Department of Revenue<\/em>, 2026 WI App 7 (Jan. 13, 2026)<\/a><\/strong>, the Wisconsin Court of Appeals reversed a circuit court decision and held that an online ticket marketplace was liable for more than $17 million in sales tax, penalties, and interest on ticket sales facilitated through its platform between 2008 and 2013. <\/p>\n\n\n\n

The case arose after the Wisconsin Department of Revenue appealed the circuit court’s reversal of a Wisconsin Tax Appeals Commission decision, in which the Commission had concluded that StubHub qualified as “a person selling” admissions to recreational events under Wis. Stat. \u00a7 77.52(2)(a)(2) and was therefore responsible for collecting and remitting sales tax on transactions conducted through its marketplace during the audit period.\u00a0<\/p>\n\n\n\n

Notably, the transactions at issue occurred well before Wisconsin’s marketplace facilitator law became effective on January 1, 2020.\u00a0<\/p>\n\n\n\n

Accordingly, the Court of Appeals’ decision turned exclusively on the interpretation and application of Wisconsin’s pre-marketplace statutory framework, rather than on the obligations imposed under the state’s marketplace facilitator regime.\u00a0<\/p>\n\n\n\n

Wisconsin imposes sales tax on the sale of admissions to recreational events, with liability falling on the “seller.” Under Wis. Stat. \u00a7 77.51(17), a seller is defined as “every person selling.” Recognizing the circular nature of the statutory definitions of “sale” and “seller,” the Wisconsin Court of Appeals looked\u00a0to\u00a0both the statutory language and ordinary dictionary definitions to determine which party, as a practical matter, functioned as the seller in transactions conducted through StubHub’s platform. <\/p>\n\n\n\n

The court\u00a0ultimately concluded\u00a0that StubHub qualified as “a person selling,” and therefore as a statutory seller responsible for collecting and remitting sales tax under Wisconsin’s pre-marketplace facilitator statutory framework.\u00a0In essence, the\u00a0court reasoned that\u00a0identifying\u00a0the entity responsible for effectuating the sale, the transfer of admissions in exchange for consideration, also\u00a0identified\u00a0the statutory seller.\u00a0<\/p>\n\n\n\n

In reaching that conclusion, the court emphasized StubHub’s\u00a0central role\u00a0in the sales transaction. StubHub processed each transaction, charged the purchaser’s payment method, deducted its service fees, and remitted the remaining proceeds to the ticket holder. <\/p>\n\n\n\n

The court further\u00a0observed\u00a0that, from the purchaser’s perspective, StubHub was effectively the sole participant in the transaction, as purchasers interacted exclusively with StubHub throughout the purchasing process. <\/p>\n\n\n\n

These facts, in the court’s view,\u00a0demonstrated\u00a0that StubHub’s involvement extended well beyond that of a passive intermediary and was sufficient to\u00a0render\u00a0it the seller for purposes of Wisconsin’s sales tax statute.\u00a0<\/p>\n\n\n\n

The Integral Party: Amazon Services, LLC v. South Carolina Department of Revenue<\/em> <\/h3>\n\n\n\n

In\u00a0Amazon Services, LLC v. South Carolina Department of Revenue<\/em>, Case No. 2024-000625 (S.C. Mar. 18, 2026)<\/strong><\/a>, the South Carolina Supreme Court considered whether Amazon\u00a0was required\u00a0to collect and remit sales tax on behalf of third-party sellers under the state’s pre-marketplace facilitator statutory framework. <\/p>\n\n\n\n

The appeal arose from a decision\u00a0of\u00a0the South Carolina Administrative Law Court, which upheld the Department of Revenue’s assessment that Amazon was liable for sales tax on transactions\u00a0facilitated\u00a0through its marketplace. The assessment exceeded $12 million, including sales tax, penalties, and interest, and related to the first quarter of 2016, more than three years before South Carolina’s marketplace facilitator law became effective on April 26, 2019. <\/p>\n\n\n\n

As in StubHub, the central issue was whether the state’s pre-marketplace sales tax statutes independently imposed collection and remittance obligations on an online marketplace operator,\u00a0notwithstanding\u00a0the\u00a0subsequent\u00a0enactment of marketplace facilitator legislation.\u00a0<\/p>\n\n\n\n

In a closely divided 3-2 decision, the South Carolina Supreme Court affirmed the Administrative Law Court’s determination that Amazon\u00a0was required\u00a0to collect and remit sales tax on behalf of third-party sellers under South Carolina’s pre-marketplace statutory framework. <\/p>\n\n\n\n

Although the court acknowledged that Amazon may not have been the “seller” in the traditional sense, it concluded that Amazon was nevertheless “engaged … in the business of selling” within the meaning of S.C. Code Ann. \u00a7 12-36-910(A). <\/p>\n\n\n\n

On that basis, the court held that Amazon was a person\u00a0obligated\u00a0to collect and remit sales tax on the transactions\u00a0facilitated\u00a0through its marketplace.\u00a0<\/p>\n\n\n\n

The South Carolina Supreme Court’s analysis differed materially from the reasoning employed by the Wisconsin Court of Appeals in StubHub. Rather than examining whether Amazon qualified as a statutory “seller,” the court concluded that the term “seller” was not the relevant inquiry because it does not appear in the operative statutory provision, S.C. Code Ann. \u00a7 12-36-910(A). <\/p>\n\n\n\n

Instead, the court focused on whether Amazon was “engaged … in the business of selling” by deriving, directly or indirectly, a “gain, profit, benefit, or advantage” from transactions conducted through its marketplace.\u00a0<\/p>\n\n\n\n

In answering that question, the court examined the Business Solutions Agreement governing Amazon’s relationship with third-party sellers and concluded that Amazon exercised pervasive control over the sales process. <\/p>\n\n\n\n

Under the agreement, Amazon regulated sellers’ ability to\u00a0establish\u00a0prices, prescribed requirements for listing products, controlled communications\u00a0regarding\u00a0sales, initiated payment processing through an affiliated entity, dictated communications between sellers and purchasers, administered returns, and controlled the disbursement of sale proceeds. <\/p>\n\n\n\n

Based on these contractual responsibilities, the court\u00a0determined\u00a0that Amazon’s participation extended well beyond that of a passive intermediary. Rather, Amazon was so integral to the consummation of each marketplace transaction that no sale could occur through the platform without its active involvement.\u00a0<\/p>\n\n\n\n

Accordingly, the court concluded that Amazon was “engaged … in the business of selling” and therefore\u00a0was responsible for\u00a0collecting and remitting sales tax under South Carolina’s pre-marketplace statutory framework.\u00a0<\/p>\n\n\n\n

Courts Reject \u201cMere Facilitator\u201d Treatment for Both Platforms<\/strong> <\/h2>\n\n\n\n

In both cases, the marketplace platforms argued that they functioned solely as passive intermediaries,\u00a0facilitating\u00a0transactions between independent third-party sellers and purchasers rather than acting as the taxable party responsible for the sale. <\/p>\n\n\n\n

According to the platforms, the taxable transaction occurred exclusively between the third-party seller and the purchaser, with the platform serving only as a conduit. Both courts rejected that characterization.\u00a0<\/p>\n\n\n\n

Platforms\u2019 Arguments Regarding Subsequent Marketplace Facilitator Laws Rejected<\/strong> <\/h2>\n\n\n\n

Both marketplace platforms argued that the\u00a0subsequent\u00a0enactment of marketplace facilitator legislation in South Carolina and Wisconsin\u00a0demonstrated\u00a0that no collection and remittance obligation existed under each state’s pre-marketplace statutory framework. <\/p>\n\n\n\n

In other words, the platforms contended that the\u00a0legislatures’\u00a0adoption of marketplace facilitator statutes reflected an acknowledgment that prior law did not impose sales tax collection responsibilities on marketplace operators. <\/p>\n\n\n\n

Both courts rejected that argument, concluding that the enactment of marketplace facilitator legislation did not\u00a0preclude\u00a0liability under the states’ existing sales tax statutes.\u00a0<\/p>\n\n\n\n

In Wisconsin, the court concluded that the enactment of the state’s marketplace facilitator law reflected a clarification of existing law rather than a substantive change. The court noted that the Department of Revenue had initially presented the legislation to the legislature as a clarification of existing sales tax obligations. <\/p>\n\n\n\n

Relying on the interpretive principles articulated in\u00a0Recht-Goldin-Siegal Construction, Inc. v. Wisconsin Department of Revenue<\/em>, 219 N.W.2d\u00a0379 (1974)<\/a><\/strong>, the court further reasoned that the legislature’s decision to expressly add “marketplace providers<\/strong>” to the definition of “a person selling<\/strong>” did not necessarily create a new category of taxpayers. <\/p>\n\n\n\n

Instead, the\u00a0additional\u00a0language\u00a0represented\u00a0a more specific enumeration of\u00a0persons\u00a0already encompassed within the existing statutory framework.\u00a0<\/p>\n\n\n\n

Accordingly, the court concluded that the January 1,\u00a02020\u00a0amendment clarified, rather than altered, Wisconsin law\u00a0regarding\u00a0sales tax collection responsibilities.\u00a0In South Carolina, the court rejected the law-change argument on narrower, but equally dispositive, grounds. <\/p>\n\n\n\n

Rather than addressing whether the marketplace facilitator statute\u00a0represented\u00a0a substantive change or merely a clarification of existing law, the court emphasized that the Department of Revenue’s liability determination was based exclusively on the South Carolina Sales and Use Tax Act as it existed in 2016. <\/p>\n\n\n\n

Although the Department issued its administrative determination in 2019, it did so before the General Assembly debated and enacted South Carolina’s marketplace facilitator legislation.\u00a0<\/p>\n\n\n\n

Accordingly, the court reasoned that the Department could not have applied the\u00a0subsequently\u00a0enacted marketplace\u00a0facilitator\u00a0statute retroactively; instead, it applied the statutory framework in effect during the audit period. <\/p>\n\n\n\n

The South Carolina Supreme Court therefore found it unnecessary to decide whether the 2019 marketplace facilitator law changed existing law or simply clarified it.\u00a0<\/p>\n\n\n\n

Pre-Marketplace Periods May Expose Platforms Exercising Sufficient Control Over Transactions<\/strong> <\/h2>\n\n\n\n

Taken together, Amazon Services, LLC and StubHub, Inc. provide an important benchmark for tax practitioners\u00a0advising\u00a0online marketplace platforms. <\/p>\n\n\n\n

Although each decision arose under the unique statutory framework of its respective state, both courts employed a functional, substance-over-form analysis that is likely to influence future disputes involving pre-marketplace sales tax\u00a0liability. <\/p>\n\n\n\n

Rather than accepting the platforms’ characterization of themselves as passive intermediaries, the courts closely examined the practical realities of their involvement in marketplace transactions, focusing on the degree of control they exercised over the sales process and the extent to which their participation was integral to the consummation of each sale.\u00a0<\/p>\n\n\n\n

Practitioners should be particularly mindful of the historical\u00a0exposure\u00a0these decisions present. By recognizing sales tax collection obligations under pre-marketplace statutory frameworks, both courts have\u00a0demonstrated\u00a0a willingness to impose liability for periods predating the enactment of marketplace facilitator legislation. <\/p>\n\n\n\n

As a result, similar theories of liability may gain traction in other\u00a0jurisdictions\u00a0where broadly worded pre-marketplace statutes\u00a0remain\u00a0subject to judicial interpretation.\u00a0<\/p>\n\n\n\n

The decisions also underscore that no single defense strategy is likely to be effective across\u00a0jurisdictions. Wisconsin’s analysis centered on whether the marketplace operator functionally acted as the statutory seller by effectuating the sale, while South Carolina focused more broadly on whether the platform was “engaged … in the business of selling” because its participation was integral to the transaction. <\/p>\n\n\n\n

These complementary, yet distinct, analytical frameworks provide multiple avenues by which taxing authorities may\u00a0seek\u00a0to impose liability under pre-marketplace law.\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

While economic nexus rules applicable to marketplace facilitators have\u00a0largely stabilized\u00a0in recent years, state tax authorities are increasingly asserting retroactive sales tax liabilities for prior tax periods. As a result, historical compliance exposure has become a significant area of risk for online marketplace facilitators, underscoring the importance of evaluating prior\u00a0filing\u00a0obligations and potential liabilities.\u00a0 A pair of\u00a0recent\u00a02026 […]<\/p>\n","protected":false},"author":72,"featured_media":7012,"menu_order":0,"comment_status":"open","ping_status":"open","template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[306,431,302],"tags":[455],"expertise":[374],"class_list":["post-7011","article","type-article","status-publish","format-standard","has-post-thumbnail","hentry","category-software-en","category-state-and-local-tax-salt-en","category-technology-en","tag-salt-en","expertise-state-and-local-tax-salt"],"acf":[],"yoast_head":"\nRetroactive Online Marketplace Liability: An Emerging Risk in Sales Tax Enforcement\u00a0 - Leyton United States<\/title>\n<meta name=\"description\" content=\"Discover how recent state court rulings are triggering retroactive online marketplace liability under pre-marketplace facilitator tax laws.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/leyton.com\/us\/insights\/articles\/retroactive-online-marketplace-liability-an-emerging-risk-in-sales-tax-enforcement\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Retroactive Online Marketplace Liability: An Emerging Risk in Sales Tax Enforcement\u00a0\" \/>\n<meta property=\"og:description\" content=\"Discover how recent state court rulings are triggering retroactive online marketplace liability under pre-marketplace facilitator tax laws.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/leyton.com\/us\/insights\/articles\/retroactive-online-marketplace-liability-an-emerging-risk-in-sales-tax-enforcement\/\" \/>\n<meta property=\"og:site_name\" content=\"Leyton United States\" \/>\n<meta property=\"article:modified_time\" content=\"2026-08-11T13:58:10+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/leyton.com\/wp-content\/blogs.dir\/4\/files\/2026\/08\/USA-Website-inside-pictures-73.png\" \/>\n\t<meta property=\"og:image:width\" content=\"1920\" \/>\n\t<meta property=\"og:image:height\" content=\"655\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data1\" content=\"9 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/leyton.com\\\/us\\\/insights\\\/articles\\\/retroactive-online-marketplace-liability-an-emerging-risk-in-sales-tax-enforcement\\\/\",\"url\":\"https:\\\/\\\/leyton.com\\\/us\\\/insights\\\/articles\\\/retroactive-online-marketplace-liability-an-emerging-risk-in-sales-tax-enforcement\\\/\",\"name\":\"Retroactive Online Marketplace Liability: An Emerging Risk in Sales Tax Enforcement\u00a0 - 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