Thursday, June 9, 2016
Adam B. Thimmesch (Nebraska), State Taxing Power after Direct Marketing Association v. Brohl, 80 State Tax Notes 299 (Apr. 25, 2016):
The Tenth Circuit Court of Appeals’ recent decision in Direct Marketing Association v. Brohl marked another entry into the ongoing saga regarding the scope of state taxing power over remote vendors. That decision, along with the U.S. Supreme Court’s decision in an earlier iteration of the litigation, has predictably increased the debates regarding the meaning and validity of the Court’s long-standing physical presence rule and the merits of congressional intervention.
One could thus view the Direct Marketing litigation as the potential catalyst that will break the stasis regarding this issue at the Supreme Court and in Congress. To the contrary, however, that litigation might represent nothing more than another blip on the nexus radar. This article evaluates those possibilities and how the DMA decision has impacted the debates regarding state taxing power going forward.