The Wall Street Journal is reporting today that Amazon.com (NASDAQ: AMZN) is likely facing additional sales tax challenges in eight states besides New York. The New York issue has been well-publicized, with the state imposing new rules that would make Amazon subject to sales tax there because of the presence of affiliates.
Normally, sales tax must be collected by a retailer only if that retailer has nexus (usually a physical presence) in a state in which an item is sold. In the past, nexus generally meant that the company had physical operations there, so the change in New York law, which now includes the presence of affiliates, is a big change. But courts also have ruled that the physical presence test is not the only way to create nexus.
The new wrinkle in the sales tax issue has to do with the distributions centers Amazon has around the country. The WSJ says [subscription required] that there are eight states with Amazon warehouses or distribution centers, but that Amazon has avoided collecting sales tax in those states by operating the facilities as subsidiaries of the parent company. Sales tax laws have permitted this exception when a facility is part of a separate legal entity.
On February 1, 1960, in Greensboro, North Carolina, four African-American students sat down at a segregated lunch counter in a Woolworth's store. That touched off a series of sit-ins and boycotts that spurred the U.S. civil-rights movement.
Founded in 1879 in Lancaster, Pennsylvania, F.W. Woolworth stores were the epitome of the American five-and-dime discount retailers, and the company was one of the largest retail chains in the world through much of the 20th century.
By 1910 the company was successful enough to commission the Woolworth Building in New York City, the world's tallest skyscraper until the completion of the Chrysler Building in 1930.
Woolworth's became the model for many other five-and-dimes throughout the United States. Oddly enough, such discount stores were sometimes criticized for driving local merchants out of business, a charge that would later be leveled at big-box stores.
Back in the heady dot-com days of 1999, any parent who didn't want to brave the holiday season parking lots knew what to do: Get online and buy those Christmas presents at eToys.com. Unlike Toys-R-Us, which had recently gone online itself, eToys seemed to know what it was doing. It offered a vast array of toys at reasonable prices, and it got them to you on time as promised.
But by March 2001, you were back to the Toys-R-Us option -- by then allied with Amazon.com, and doing online retailing the right way. In the end, eToys proved no more durable than the Furby -- much sought-after, priced up by speculators and hype, only to ultimately end up in the backyard, broken and ignored.
eToys went up fast and crashed hard, (not unlike a pogo stick), and in many ways it remains a textbook example of the excesses and "irrational exuberance" of the dot-com era.
Do you like auctions? Personally, I don't. Sure, the stock market is essentially an auction, but it's an auction without a lot of noise (at least on my end). Anyway, this brings me to a BusinessWeek piece on eBay (NASDAQ: EBAY) and its evolution. It looks like auctions are no more fit to survive than the dinosaurs were. Research overwhelmingly shows that users of the most famous online auction destination in the world would rather pay a fixed price for an item than haggle over it like a frantic trader at a busy bazaar.
Now, as one commenter made clear in the article, this changes the essential gene structure of eBay's DNA. But is mutation necessarily bad in this case? Not to my way of thinking. To be honest, I haven't done any eBaying directly; I usually use a friend to acquire an item for me if I'm looking for something. Not only am I too lazy to open an account, but I dread having to play the auction game. Why put up with such nuisance? When I want to buy something, I don't want to compete and see values change. Think about it: when you go to Wal-Mart (NYSE: WMT), do you want to barter over a bar of soap?
Okay, so we're not talking about bars of soap. We're talking about items that, to be fair, do lend themselves to the auction motif. Comic books, autographed photos, rare recordings, and so forth, are definitely fair game for the electronic gavel. Still, it's annoying. Wouldn't you rather know that a rare copy of The Texas Chainsaw Massacre for the Atari 2600 is $200, take it or leave it, and that you didn't need to get down in the pits to start bidding for it?
I've got to be honest, I wasn't so sure that Amazon's (NASDAQ: AMZN) Kindle device would be a hit. But, according to BusinessWeek, it seems like it's doing okay. Kindle, which is a reading platform for e-books, actually experienced sell-outs after it was launched last fall. And now, CBS's (NYSE: CBS) Simon & Schuster has upped its support of the platform by increasing the number of titles from its portfolio to be sold on Kindle. How does 5,000 more titles from Simon & Schuster sound?
Just great, I'm sure Jeff Bezos would say. And who can blame him? It looks like people are really taking to Kindle, and although I don't think reading books for pleasure in such an electronic manner will ever come remotely close to challenging printed tomes, I know it's still important for Amazon to have a strategy in this arena. And like I mentioned at the beginning, the fact that Kindle seems to have had a strong start is very impressive.
Napster (NASDAQ: NAPS), a music-download service, reported Q4 and full-year results on Wednesday. I must admit, for a very low single-digit stock, the results seemed pretty cool.
For the fourth quarter, revenues increased about 6% to $30.8 million and the net loss for the quarter came in at $0.10 per diluted share; this was much better than the loss of $0.20 per diluted share seen in last year's comparable quarter, which also included $0.03 attributable to discontinued operations. Briefing.com says this performance beat Wall Street's expectations by three pennies. For the full fiscal year, the top line increased a nice 15% to $127.5 million and the bottom-line loss was $0.38 per diluted share versus a net loss of $0.85 per diluted share in fiscal 2007. Perhaps even more important is the fact that Napster is, according to the release, generating positive cash flow, an achievement the company has kept up for four quarters now.
Of course, the big story this week is Napster's attempt at upping its game against competitors such as Apple (NASDAQ: AAPL), Wal-Mart (NYSE: WMT), and Amazon (NASDAQ: AMZN) by opening a music-download site dedicated to the sale of MP3 tunes (I wrote an post on the subject, and so did Richard Driver). This is meant to broaden the company's appeal by going after consumers who don't necessarily dig the subscription model. I'll tell you, though, it's going to be a long while before Napster supplants the dominance of the iTunes store.
MOST NOTEWORTHY: U.S. semiconductors, Teekay Offshore and Oplink Communications were today's noteworthy upgrades:
Goldman upgraded the U.S. Semiconductor Sector, including Intel (NASDAQ: INTC) and SanDisk (NASDAQ: SNDK) to Attractive from Neutral. The firm believes semi fundamentals are poised to improve in 2H08 and that valuations are reasonable.
Wachovia upgraded Teekay Offshore (NYSE: TOO) to Outperform from Market Perform based on valuation and increased distribution growth outlook following the acquisition of an additional 25% ownership interest in Teekay Offshore Operating, L.P.
Merriman upgraded shares of Oplink Communications (NASDAQ: OPLK) to Buy from Neutral as it believes the company is an attractive takeover target following the Finisar (NASDAQ: FNSR) and Optium (NASDAQ: OPTM) merger, given its low-cost Chinese manufacturing capacity and attractive $140M cash balance.
OTHER UPGRADES:
Goldman upgraded Amazon.com (NASDAQ: AMZN) to Buy from Neutral and added shares to its Conviction Buy List.
William Blair raised Interpublic Group (NYSE: IPG) to Outperform from Market Perform.
Last week, Amazon.com (NASDAQ: AMZN) filed a lawsuit in New York over the state's new law, which requires online retailers to collect sales tax from New York customers if the company has affiliates in the state soliciting sales for them.
Most state laws only require sales tax to be collected in a state if a company has a nexus, or physical presence there. Most states require purchasers of products who haven't paid sales tax on the items to voluntarily report the purchases to the state and pay use tax on them (the equivalent of sales tax). As you can imagine, in the government's eyes, this leaves plenty of tax money on the table as consumers rarely report these purchases to their home states and therefore avoid sales and use tax altogether.
New York's new law is a move to collect taxes on these sales, but it has angered Amazon.com and other companies. Affiliate programs are important to increase sales, as the "affiliates" are basically people and businesses who refer others to Amazon.com to make purchases. Amazon.com fought back, and now perpetual money-loser Overstock.com (NASDAQ: OSTK) is fighting back in its own way. Overstock is canceling its agreements with all of their affiliates in New York. If New York is going to use that affiliate relationship in order to impose sales tax on internet sales going to New York, then darn it, Overstock.com is going to show them!
Amazon.com (NASDAQ: AMZN) is deeply committed to offering you a huge selection of products, lightning fast service and amazing prices -- and it is willing to sue the state of New York to protect those prices.
On April 23rd, a new law took effect in New York, requiring out of state online retailers to collect sales from New York customers if they have representatives in New York soliciting sales for the company. Amazon's international affiliate marketing program means that it must collect the taxes, according to the state.
Amazon is punching back, suing New York and New York taxation and finance commissioner, Robert Megna, and Governor David Paterson, asking the state Supreme Court to overturn the law as unconstitutional. Amazon also says the law is "impermissibly vague and overbroad." The Wall Street Journal reports (subscription required) that Amazon is defending itself on the grounds that it has no physical presence or employees based in New York, although the company's jobs site would seem to suggest otherwise. The distinction may be that the shipping facilities located in New York do constitute efforts to solicit business for the company.
In any case, New York politicians are not going to win any fans trying to make it one of the five states charging sales tax on Amazon.com transactions. The others are Kansas, Kentucky, North Dakota and Washington.
Internet retailer Amazon.com (NASDAQ: AMZN) is following Best Buy Inc.'s (NYSE: BBY) lead and is now supplying $50 gift certificates to those customers who purchased a now-obsolete HD DVD player on the e-tailer's website prior to February 23. Customers who bought an HD DVD player before that date have until April 9, 2009 to contact Amazon.com and claim their $50 credits (limit of 10).
It's good that Amazon.com is finally doing this -- but why did it take so long? The pioneering e-tailer didn't lead the charge on this one, and left that task to brick-and-mortar retailer Best Buy. Wal-Mart Stores, Inc. (NYSE: WMT) followed shortly behind and then a month later, Amazon.com joins the fray? Generally, Amazon.com is the leading trendsetter -- but not this time.
So, Amazon.com is giving previous HD DVD unit customers a $50 credit on anything else available for sale while pitching some great offers on the format winner Blu-ray format (always have to work an upsell in there). It would be great if every retailer who sold HD DVD players would follow along Best Buy's lead and provide $50 credits to customers as a future business retention tool, but that probably won't happen. The lack of that action, though, shows just who is in tune with customers and who could care less.
On Thursday, I expressed skepticism about Borders Group Inc.'s (NYSE: BGP) efforts to sell itself in the face of deteriorating fundamentals and a problematic balance sheet.
The New York Times reports on Wall Street speculation over the past year that Borders might sell itself to its larger rival, Barnes & Noble (NYSE: BKS). "A combination of the biggest and second-biggest booksellers has long been believed to be an invitation for regulatory scrutiny."
On a conference call, Barnes & Noble COO Mitchell S. Klipper said that, if approached by Borders, he would "certainly take a good look at the company and put it under review." The company's chairman, Leonard Riggio, told the Wall Street Journal (subscription required), "I think it would be the height of irresponsibility for us not to look at something presented to us. If they want us to take a look, we would be pleased to do so. We also feel we would be obliged to do so."
Well of course they would. Why wouldn't they take a good look at the company? But ultimately, I think that the better-run Barnes & Noble will take one look at Borders and decide it doesn't want anything to do with it. The brick-and-mortar book industry is in serious trouble -- there's no real antidote to competition from lower-cost providers like Amazon.com (NASDAQ: AMZN) and even Wal-Mart (NYSE: WMT). Borders is looking to set up its own e-commerce site, but I can't even imagine what competitive advantage it will have going up against an established rival like Amazon.
Barnes & Noble is faring reasonably well and, given the long-term problems facing the industry, I just can't see any reason for the company to double down on brick-and-mortar book selling, taking on debt to acquire an ailing brand that would need more money to be pumped into it.
Most mergers and acquisitions don't create value, and I doubt that this one would be any exception. Given the strong track record of Barnes & Noble's management, I don't think they'll make that mistake.
Borders Group, Inc. (NYSE: BGP), the arch-rival of bookseller Barnes & Noble, Inc. (NYSE: BKS), is struggling mightily. It may not go away, but it seems that there's a good chance that it will continue its business imperatives under new owners. According to a press release issued by the company, as well as this AP article, the company appears to want to sell itself at this point because, to be blunt, management appears to have failed at its job of preserving and growing shareholder value; it also has failed against online entities such as Amazon.com, Inc. (Nasdaq: AMZN) and other retailers such as Wal-Mart Stores, Inc. (NYSE: WMT). Why, as I write this, the stock is down 39%, and it is below $5 per stub. Yikes! I've been feeling pain with some of my financial stocks lately, but I feel bad for Borders shareholders, that's one torturous drop in value.
The retailer just isn't doing well; in fact, it decided to drop its dividend payout because it no longer can afford it. I'm sure shareholders were expecting such a move, but when it happens, it's always such a slap in the face. Borders is having cash issues, management doesn't seem to be confident in its current business structure, it missed earnings estimates, revenues are down, etc. Funny thing is, I actually prefer the shopping atmosphere of my local Borders store over my local Barnes & Noble outlet. Can't always go by personal experience, I guess.
Well, if one wants to speculate, one could buy some lottery tickets -- I mean, shares -- in Borders Group. I won't. Yes, catalysts could come down the line for the company, but for now, the market seems to be telling investors that this is one to stay away from.
Disclosure: I don't own any of the companies mentioned here; positions can change at any time.
MOST NOTEWORTHY: Amazon.com, Altria Group and Skilled Healthcare were today's noteworthy initiations:
Canaccord Adams expects Amazon.com (NASDAQ: AMZN) growth to be driven by its expanding international reach, mix shift to third-party revenue, product innovation, and category expansion. The firm initiated shares with a Buy rating and $78 target.
UBS is positive on Altria's (NYSE: MO) growth, low likelihood of downward EPS revisions, and best-in-class cash flow distribution; shares were started with a Buy rating.
Skilled Healthcare (NYSE: SKH) was initiated with an Outperform rating at Morgan Keegan, as they believe nursing home reimbursement risk is already reflected in its valuation.
OTHER INITIATIONS:
KeyBank assumed Callaway Golf (NYSE: ELY) with a Buy rating and $19 target.
Credit Suisse initiated Intuit (NASDAQ: INTU) with an Outperform rating and $35 target.
Broadpoint initiated Novell (NASDAQ: NOVL) with a Buy rating.
The Wall Street Journal is reporting today that Amazon.com (NASDAQ: AMZN) is likely facing additional sales tax challenges in eight states besides New York. The New York issue has been well-publicized, with the state imposing new rules that would make Amazon subject to sales tax there because of the presence of affiliates. 
This post is part of a series on some of the most memorable 
This post is part of a series on some of the most memorable 
Do you like auctions? Personally, I don't. Sure, the stock market is essentially an auction, but it's an auction without a lot of noise (at least on my end). Anyway, this brings me to a 
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Cramer on BloggingStocks: Paulson and Bernanke step up to the plate
Google's $1.7 billion YouTube deal going down the tubes?
Before the bell: Futures lower as oil rises, despite Alcoa earnings
