Overstock.com, Inc., et al. v. New York State Department of Taxation and Finance, et al., Nos. 33 and 34, 20 N.Y.3d 586 (N.Y. Ct. App. 2013)

(plaintiffs, online retailers, claim that NY statute subjecting internet sales in excess of $10,000 cumulative during previous four quarterly periods to taxation is facially unconstitutional in violation of Commerce Clause because it subjects online retailers without physical presence in state to NY sales and compensating use tax, and also violates Due Process Clause;  court noted that with respect to facial challenges plaintiff must show that tax is unconstitutional on its face and that statute will be presumed constitutional; court noted that resident of NY would be compensated for referrals resulting in purchases under plaintiff's program and court presumed that some of those solicited would reside in NY; dissent noted that court's decision completely contrary to established U.S. Supreme Court precedent set forth in Quill Corp. v. North Dakota, 504 U.S. 298 (1992) and other cases; dissent noted that while solicitation of customers for retailer by in-state sales representatives counts as physical presence, even where the sales representatives are independent contractors, but mere advertising by out-of-state retailer in in-state media does not count as physical presence; dissent reasoned that NY-based websites affiliated with plaintiffs are not the equivalent of sales agents that solicit business for the plaintiffs, but are merely media in which plaintiffs advertise their products; dissent noted that no website owner promoted the plaintiffs because potential customers can simply go to the plaintiffs' websites directly  - media is not the same thing as having an in-state sales force and the presumption that every website having an agreement to carry a link to the plaintiffs' website does not make website a sales agent of plaintiffs and is contrary to rule that advertising in in-state media does not equate to physical presence; dissent would hold that statute unconstitutional under Commerce Clause). 

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