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:
Internet sales made by out-of-state retailers to California customers are also treated no differently than other remote sales made to California customers. Generally, remote sales by out-of-state retailers to California customers, whether made over the Internet, by telephone, or mail order, take place outside of California because the property is delivered to a common carrier outside the state for shipment into California, and are, therefore, not subject to sales tax. However, California customers do owe the use tax on those sales, unless a specific tax exemption or exclusion applies. Out-of-state retailers that are engaged in business in California are required to register with the California State Board of Equalization (BOE), collect the use tax from California customers, and pay the tax to the BOE.
Accountants further expect--and some are even advising their business clients to consider--moving operations out of states that have aggressive tax policies, such as Texas. "I've definitely heard that some clients are considering pulling out of some states," adds Virginia CPA Barrett. It's a viable option, she continues, "but it has to be part of the growth strategy and should be a well thought out decision."
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