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Wayfair Case Part 2

Article ID: 379
Last updated: 23 Nov, 2018
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By Jason Watson ()
Posted November 23, 2018

As mentioned before, the U.S. Supreme Court ruled on June 21, 2018 in favor of a South Dakota statute enacted in 2016 that defined substantial nexus (remember that word from Complete Auto Transit v. Brady in 1977) as-

  • Deliver more than $100,000 of goods and services in a year, or

  • Have 200 or more separate transactions for the delivery of goods or services

Note the Or! Interestingly the suit was brought against Wayfair, Newegg and Overstock collectively. More interestingly, the court noted that other functions of ecommerce like cookies being left behind by browsers and customers downloading retailer apps may be introduced as proof of physical presence. Holy smokes!

Another tidbit was Kennedy, who wrote the majority opinion, admonished Wayfair by stating they could not have a customer base attracted to images of beautifully decorated homes if it weren’t for a stable local and state government. Kennedy was just piling on like the cop giving you a ticket, and a lecture. You can read the full opinion here-


Our little home state of Colorado is famous in the sales tax arena too (not just the Dakotas). In 2010, the state of Colorado passed a law that required out-of-state vendors to collect and provide information to its citizens regarding their total purchases, so that the residents could determine their tax liability for the state. Direct Marketing Association v. Brohl was a U.S. Supreme Court case that essentially upheld Colorado’s statute. DMA was a trade group and Barbara Brohl was the Executive Director for the Colorado Department of Revenue.

This stuff is changing all the time. Keep referring to our blog posts for updates-


Also, we encourage any interstate seller of goods and services to seek the advice of professionals who handle sales tax every day. Our referrals are TaxJar, Avalara and Peisner Johnson.

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Physical and Economic Presence, Nexus Attached       Services and Tangible Personal Property (TPP)