Friday, September 28, 2018
Adam B. Thimmesch (Nebraska), Darien Shanske (UC-Davis) & David Gamage (Indiana), Wayfair: Substantial Nexus and Undue Burden, 89 State Tax Notes 447 (July 30, 2018):
This is the first of a series of essays wherein we analyze the U.S. Supreme Court’s decision in South Dakota v. Wayfair. In this essay, we tackle some of the more immediate interpretive questions raised by the Wayfair opinion, such as how a state should approach substantial nexus. As part of our analysis, we offer advice to state governments. Specifically, we recommend that states take note of the features of South Dakota’s law that appealed to the Court and replicate or improve on these to the extent possible.
We advise states to consider simplifying their sales tax systems (and potentially joining the Streamlined Sales and Use Tax Agreement if they have not already done so), offering full and adequate reimbursement for compliance costs (especially for smaller vendors), and offering free compliance software and immunity for vendors who properly rely on such software.