Limitations on States' Jurisdiction to Impose Sales and Use Taxes, written by Maryann B. Gall and Laura A. Kulwicki both of Jones Day, explores the constitutional limitations imposed by the Commerce Clause, Due Process Clause, Equal Protection Clause, and First Amendment as they apply in the context of state sales and use taxation. Providing an historical background on federal legislation, this Portfolio examines legislative efforts — including the fallacy of the “fairness” rationale — pursued under the state jurisdiction-to-tax umbrella. It also addresses the constitutional restrictions that limit the states' ability to compel out-of-state sellers to collect use tax on mail order sales and other issues concerning the taxation of mail order and out-of-town sellers.
In addition, this Portfolio discusses the constitutional requirement of “substantial nexus” and the United States Supreme Court and state court interpretations of it at length. It reviews 11 pre-Quill state nexus cases and more than a dozen post-Quill cases and discusses state attempts to legislatively “overrule” the effects of Quill and Bellas Hess through the passage of state anti-Bellas Hess statutes and proposed federal legislation.
Finally, Limitations on States' Jurisdiction to Impose Sales and Use Taxes discusses the creation of nexus through third parties, such as through the use of in-state agents or representatives, and affiliate nexus. Also reviewed are relevant cases addressing the creation of nexus through occasional or sporadic in-state presence.
Limitations on States' Jurisdiction to Impose Sales and Use Taxes allows you to benefit from:
This Portfolio is part of the Premier State Tax Library, a comprehensive series, which covers major state tax transactions and issues with expert, in-depth analysis, and offers commentary on a wide range of multi-state and state-specific taxation topics, including Sales and Use, Corporate Income, Individual Income, Property, Gross Receipts, Limitations on States' Authorities to Tax, Credits and Incentives, Electronic Commerce, Mergers and Acquisitions, Procedure and Administration, Special Industries, and more.
Detailed Analysis
1420.01. INTRODUCTION
1420.02. CONSTITUTIONAL LIMITATIONS ON USE TAX COLLECTION BY OUT–OF–STATE SELLERS
A. Overview
B. General Limitations on State Jurisdiction to Tax: The Nexus Requirement
C. “Nexus” As Applied By The Courts: The Requirement of Physical Presence
1. Border Sales
2. Mail Order Solicitation Cases
a. Sears and Montgomery Ward
b. Bellas Hess
c. Quill Corporation v. North Dakota
3. Non–Sales or –Use Tax Nexus Cases
a. United States Supreme Court Decisions
b. State Court Decisions
1420.03. THE QUILL DECISION: REVISITING THE VITALITY OF BELLAS HESS
A. In General
B. Bellas Hess: Commerce Clause or Due Process Clause
C. “Economic” Nexus
1. The Bellas Hess Dissent
2. Adjudicative Jurisdiction Decisions
a. In General
b. U.S. Supreme Court Accepts States' Analogy to Adjudicative Jurisdiction
3. Other U.S. Supreme Court Decisions: Goldberg v. Sweet and D.H. Holmes Co. v. McNamara
4. D.H. Holmes Co. Trends - Use Tax on Catalogs
D. The Impact of Industry Changes on State Government
1420.04. LEGISLATIVE EFFORTS
Introductory Material
A. Historical Background: Federal Legislation Regarding State Jurisdiction to Tax
B. Pre–Quill Federal Legislative Efforts
C. Federal Legislative Efforts After Quill
D. The Fallacy of the “Fairness” Rationale
E. State Legislation
1. Anti–Bellas Hess Laws
a. Alabama
b. Arizona
c. Arkansas
d. California
e. Colorado
f. Connecticut
g. Florida
h. Georgia
i. Idaho
j. Illinois
k. Indiana
l. Iowa
m. Kansas
n. Kentucky
o. Louisiana
p. Massachusetts
q. Minnesota
r. Mississippi
s. Missouri
t. Nebraska
u. Nevada
v. New Mexico
w. New York
x. North Carolina
y. North Dakota
z. Ohio
aa. Oklahoma
bb. Rhode Island
cc. South Carolina
dd. South Dakota
ee. Tennessee
ff. Texas
gg. Utah
hh. Vermont
ii. Virginia
jj. Washington
kk. West Virginia
2. Other States
1420.05. PRE–QUILL STATE NEXUS CASES
A. L.L. Bean Inc. v. Pennsylvania Department of Revenue
B. Bloomingdale's By Mail, Ltd. v. Pennsylvania Department of Revenue
C. District Photo Inc. v. California State Board of Equalization
D. Scholastic Book Clubs Inc. v. California State Board of Equalization
E. Cally Curtis Co. v. Groppo
F. SFA Folio Collections Inc. v. Bannon
G. Pearle Health Services Inc. v. Tennessee Commissioner of Revenue
H. Lands' End Inc. v. California State Board of Equalization
I. B. I. Moyle Associates Inc. v. Wisconsin Dept. of Revenue
J. Direct Marketing Association v. Bennett, et al.
K. L.L. Bean Inc. v. Bracey
1420.06. POST–QUILL DEVELOPMENTS: APPLICATION OF NEXUS PRINCIPLES IN STATE COURT
B. Affiliate Nexus
1. Current Inc. v. California State Board of Equalization
2. G.P. Group Inc. v. Missouri Director of Revenue
3. The Country Shop Inc. v. Limbach
4. SFA Folio Collections Inc. v. Tracy
C. Use of In–State Agents or Representatives
1. In–State Employees
a. Carapace Inc. v. Limbach
b. Other Cases
2. In–State “Volunteers” and Unpaid Representatives
a. Educational Reading Service Book Fairs Inc. v. California Board of Equalization
b. In re Scholastic Book Clubs Inc.
c. Troll Book Clubs Inc. v. Pledger
d. Troll Book Clubs Inc. v. Tracy
e. Other Cases
D. Occasional or Sporadic In–State Presence
1. Cole Brothers Circus Inc. v. Huddleston
2. Matter of Orvis Company Inc.
3. Matter of Vermont Information Processing Inc.
4. Matter of NADA Services Corp.
5. Brown's Furniture Inc v. Wagner
6. Share International Inc. v. Florida Department of Revenue
7. Care Computer Systems Inc. v. Arizona Department of Revenue
8. Town Crier Inc. v. Illinois Department of Revenue
9. In re Intercard Inc.
E. Other “Substantial Nexus” Situations
1. Agents and Independent Contractors
2. Occasional Visits
3. Trade Show Nexus
4. Transactional Nexus
5. Voluntary Registration
6. Drop Shipments
7. Provision of In–State Warranty Services
8. Internet Sales and Electronic Commerce
1420.07. ATTORNEYS' FEES
Working Papers
Table of Worksheets
Worksheet 1 Quill Corp. v. North Dakota, 112 S. Ct. 1904 (1992)
Opinion
Worksheet 2 National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967)
Worksheet 3 Multistate Tax Commission Nexus Bulletin 95–1 Computer Company's Provision of In–State Repair Services Creates Nexus
Worksheet 4 2008 BNA Survey - Sales Tax Nexus
Bibliography