Paul L. Caron

Thursday, April 18, 2019

Hellerstein & Appleby: Substantive And Enforcement Jurisdiction In A Post-Wayfair World

Walter Hellerstein (Georgia) & Andrew D. Appleby (Stetson), Substantive and Enforcement Jurisdiction in a Post-Wayfair World, 90 State Tax Notes 283 (Oct. 22, 2018):

This article examines the Wayfair case through the lens of substantive and enforcement jurisdiction and focuses on the question of whether there is a constitutionally required relationship between the nexus of the person that the state seeks to enlist as the tax collector and the underlying activity that the state is taxing.

In the wake of Wayfair’s expansion of enforcement jurisdiction for remote sellers, there will likely be renewed calls for the recognition of a relational requirement between substantive and enforcement jurisdiction. This position is certainly understandable from a practical perspective, particularly for small remote sellers, and it may well be forcefully advanced in “Pike balancing” arguments in post-Wayfair litigation. At the end of the day, however, we are skeptical about the long-term success of relational requirement arguments and would be very cautious about taking such cases on a contingency

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