2,  Dormant Commerce Clause. The provisions of M.G.L. c. 64H, § 1 are enforced to the extent allowed by the “physical presence” dormant Commerce Clause standard as set forth in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), where a state sought to impose a use tax collection duty on an out-of-state mail order vendor on sales of tangible personal property shipped into the state. Unlike the mail order vendor at issue in Quill, Internet vendors with a large volume of Massachusetts sales invariably have one or more of the following contacts with the state that function to facilitate or enhance such in-state sales and constitute the requisite in-state physical presence:
The Nielsen Global Connected Commerce Survey conducted interviews in 26 countries to observe how consumers are using the Internet to make shopping decisions in stores and online. Online shoppers are increasingly looking to purchase internationally, with over 50% in the study who purchased online in the last six months stating they bought from an overseas retailer.[23]
3.  Due Process Clause.  The provisions of M.G.L. c. 64H, § 1 are enforced subject to the limitations of the Due Process Clause of the U.S. constitution.  See Quill Corp. v. North Dakota, 504 U.S. 298 (1992).  In the instance of a vendor with a principal place of business located outside the state, due process generally requires that such vendor purposefully avail itself of the state’s economic market. See id.  The degree to which a vendor must purposefully avail itself of a state’s economic market to meet the requirements of due process can be uncertain in the instance of Internet vendors with a principal place of business located outside the state.  Therefore, 830 CMR 64H.1.7(3) sets a bright line threshold intended to reflect a level of purposeful availment at which the requirements of due process will be met in the case of such vendors.

“Retailers have been waiting for this day for more than two decades,” National Retail Federation president and CEO Matthew Shay said in a statement Thursday. “The retail industry is changing, and the Supreme Court has acted correctly in recognizing that it’s time for outdated sales tax policies to change as well. This ruling clears the way for a fair and level playing field where all retailers compete under the same sales tax rules, whether they sell merchandise online, in-store or both.”
Otherwise Subject to Tax.  Massachusetts sales or use tax jurisdiction over a vendor that is conferred by in-state contacts other than as referenced in 830 CMR 64H.1.7(1)(b)2.a. through c.  For example, an Internet vendor with a principal place of business located outside the state might maintain inventory in the state or contract with an in-state representative (including a related person) that creates sales or use tax jurisdiction.  Only a vendor that is not “otherwise subject to tax” is potentially subject to the rule set forth in 830 CMR 64H.1.7(3).
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