Presentation is loading. Please wait.

Presentation is loading. Please wait.

SEATA 63 rd Annual Southeastern Association of Tax Administrators Conference Hilton Head, South Carolina July 28 – 31, 2013 Donald M. Griswold, Crowell.

Similar presentations


Presentation on theme: "SEATA 63 rd Annual Southeastern Association of Tax Administrators Conference Hilton Head, South Carolina July 28 – 31, 2013 Donald M. Griswold, Crowell."— Presentation transcript:

1 SEATA 63 rd Annual Southeastern Association of Tax Administrators Conference Hilton Head, South Carolina July 28 – 31, 2013 Donald M. Griswold, Crowell & Moring LLP 23788317_2

2 Nexus Common Law Doctrines & Sales Tax Intrastate Transactions Statutory Discrimination SEC Actions 2

3 Nexus 3

4 Click-Through Nexus Litigation Legislative Developments Attributional Nexus Due Process – PACT Act Due Process -- SCOTUS 4

5 Overstock.com, Inc. (N.Y. Ct. App. 2013) & Amazon.com, LLC Facial challenge to the constitutionality of NYs click-through nexus statute Held: statute was not unconstitutional on its face Taxpayers will petition the U.S. Supreme Court for review 5

6 Fifteen states have recently proposed or enacted nexus legislation: Florida, Hawaii, Indiana, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Jersey, Oklahoma, Pennsylvania, Utah, Virginia 6

7 Barnesandnoble.comLLC (N.M. 2013) Supreme Court of New Mexico affirmed: For GRT purposes, the in-state activities of an affiliate could be imputed to a dot com out-of-state retailer 7

8 Red Earth LLC (2d Cir. 2011 Gordon(DC Cir. 2013) PACT Acts requirement – retailers must prepay excise taxes on out-of-state sales – denies due process 8

9 Goodyear (2011) Due Process minimum contacts for tax may be tougher standard after all !... attenuated connections to the state fall far short of the continuous & systematic general business contacts necessary to empower [the state] to entertain suit against them on claims unrelated to anything that connects them to the state. 9

10 McIntyre (2011) The principal inquiry in cases of this sort is whether the defendants activities manifest an intention to submit to the power of the sovereign … and to have that … you must have purposeful availment … In this way, sovereignty prevails over metaphor as authority replaces fairness. 10

11 Common Law Doctrines & Sales Tax 11

12 Sham, Economic Substance, Business Purpose Policy Sullivan Bros (WI Cir. Ct.) Dunk & Bright(NY TAT) 12

13 Intrastate Transactions 13

14 Hartney Fuel Oil (Ill. App. Sept. 2012) Held: must follow statutory sourcing rule Source sales to jurisdiction where POs are received Rejected Departments argument for sourcing based on totality of circumstances 14

15 RTA v. United Regional Transportation Authority has accused United & American Airlines of operating small sham offices outside Chicago to avoid paying sales tax on fuel in Chicago. 15

16 California Enterprise Zone Credits DiCon Fiberoptics(Cal. S.Ct. 2012) Elimination of Enterprise Zone Program A.B. 93 signed by Gov. Brown (July 2013 16

17 StatutoryDiscrimination 17

18 CSX v. Ala. (11th Cir. July 2013) Sales tax on interstate rail carriers is discriminatory Alabama did not provide a sufficient justification for exempting interstate motor and water carriers 18

19 Chicago v. StubHub! (IL 2011) Chicago overstepped its home rule authority by attempting to impose a tax obligation under Illinois law. 19

20 Performance Marketing (Ill. Cir. Ct. May 2012) Illinois Amazon law: violated the Commerce Clause because it required retailers with no substantial nexus with the state to register and collect the states sales &use taxes violated the ITFA as a discriminatory tax on e-commerce 20

21 SEC Actions 21

22 Sprint Nextel SEC initiated an investigation following a suit attempting to collect taxes 22

23 Hudson Highland SEC fined Hudson for failing to accurately reflect sales tax liabilities in its books 23

24 Dell SEC charged two former Dell executives with fraud, alleging misconduct relating to the use of the companys excess tax reserves 24

25 Donald M. Griswold Crowell & Moring LLP 1001 Pennsylvania Ave., NW Washington, DC 20004 (202) 624-2730 dgriswold@crowell.com 25


Download ppt "SEATA 63 rd Annual Southeastern Association of Tax Administrators Conference Hilton Head, South Carolina July 28 – 31, 2013 Donald M. Griswold, Crowell."

Similar presentations


Ads by Google