Thursday, December 10, 2020
Hayes R. Holderness (Richmond), Navigating 21st Century Tax Jurisdiction, 79 Md. L. Rev. 1 (2019):
Hailed as a massive victory for the states, the Supreme Court’s 2018 decision in South Dakota v. Wayfair, Inc. brought dated state tax jurisdiction standards into the twenty-first century, freeing the states to tax internet vendors. However, the decision left the larger state tax jurisdiction doctrine undertheorized and at a crossroads: Should the doctrine concern itself only with notice and fairness issues akin to those found in the due process personal jurisdiction realm, or should it also concern itself with protecting interstate commerce from undue state tax burdens? This Article will argue for the latter path by developing a robust theory of state tax jurisdiction that focuses on the potential undue burdens of tax compliance costs, burdens a threshold jurisdictional standard is uniquely able to address. From this compliance burden theory emerges a jurisdictional standard which would protect interstate commerce—particularly the activities of small businesses and entities that facilitate the commerce of others, such as online marketplaces, payment intermediaries, and common carriers—from the chilling effects of heavy state tax compliance costs.
This Article will conclude by demonstrating how unanswered questions from Wayfair provide opportunities to incorporate the pro-posed standard into the state tax jurisdiction doctrine, detailing the way forward from Wayfair.