Paul L. Caron
Dean




Tuesday, January 4, 2022

Hellerstein & Appleby: Does The Supreme Court’s Decision In Wayfair Apply Retroactively?

Walter Hellerstein (Georgia) & Andrew D. Appleby (Stetson; Google Scholar), Does the Supreme Court’s Decision in Wayfair Apply Retroactively?, 102 Tax Notes St.  715 (2021):

Tax-notes-stateA recent decision of the Oregon Tax Court suggests that it may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical. Accordingly, after providing an overview of the case law governing retroactive application of Supreme Court state tax decisions repudiating preexisting constitutional doctrine, we examine the Oregon Tax Court’s opinion in Global Hookah Distributors Inc. v. Department of Revenue, which addressed the question whether Wayfair applied retroactively to the state’s tobacco products tax.

Conclusion
After this brief foray into the retroactivity issues potentially raised by Wayfair, we return to the question that we posed at the outset — namely, whether Global Hookah suggests that it “may be premature to dismiss the challenging questions raised by the retroactive application of Wayfair as entirely hypothetical.” Although the Oregon court’s reasoning suggests an affirmative answer to the question, its holding points in the other direction. Because Quill’s physical presence test of substantial nexus has long been limited (with the Court’s implicit blessing) to sales and use taxes, and because the states have not applied their post-Wayfair “economic presence” sales and use tax collection requirements on a retroactive basis, cases involving the retroactive application of Wayfair may well appear more frequently on law school examinations than in case law reports.

https://taxprof.typepad.com/taxprof_blog/2022/01/does-the-supreme-courts-decision-in-wayfair-apply-retroactively.html

Scholarship, Tax, Tax Analysts, Tax Scholarship | Permalink