The Digital Advertising Tax: An Overstep by State Taxing Jurisdictions

Authors

Sammy Reisner

First Page

271

Abstract

In 2021, the Maryland Senate voted to override the governor’s veto to pass House Bill 732, marking the enactment of the first digital advertising tax in the United States. The tax imitated existing digital services taxes that have become popular internationally. Recognizing the need for a global solution, the OECD and the G20 formed the Inclusive Framework to ensure that countries receive their fair share of taxes without subjecting businesses to double taxation. Domestically, however, no such resolution has been reached, and several other states, inspired by Maryland’s initiative, followed suit by introducing their own versions of a digital advertising tax. This tax is levied based on the proportion of a business’s gross revenue derived from digital advertising, which Maryland defines as advertisement services delivered through a digital interface. Since the enactment of the tax, the Comptroller of Maryland has faced legal challenges, such as in Maryland state court, where several trade associations—including the United States Chamber of Commerce—filed suit, and in federal court, where Comcast entities did the same. This Note argues that laws like Maryland’s, attempting to impose digital advertising taxes, go beyond a state’s taxing authority and are unconstitutional under both the Supremacy Clause and the Commerce Clause.

Recommended Citation

Sammy Reisner, The Digital Advertising Tax: An Overstep by State Taxing Jurisdictions, 18 Brook. J. Corp. Fin. & Com. L. 271 (2023).
Available at: https://brooklynworks.brooklaw.edu/bjcfcl/vol18/iss1/14