Ever since Alabama’s new economic nexus regulation went into effect, litigation over its constitutionality has been expected given that Alabama Commissioner Julie Magee and Governor Bentley said as much when announcing it (Rule 810-6-2-.90.03, effective January 1, 2016).  It appears that they finally got their wish. On June 8, 2016, Newegg Inc. (Newegg) filed a Notice of Appeal in the Alabama Tax Tribunal challenging the Alabama Department of Revenue (DOR) Notice of Final Assessment of Sellers Use Tax (Assessment) that was entered on May 12, 2016. The Assessment is for seller’s use tax, interest and penalties for the months of January and February 2016 (the Assessment Period), which represent the first two months the new regulation was in effect.

The Alabama litigation comes on the heels of the litigation in South Dakota, which also involves Newegg and other retailers. Although the critical issue in both is whether economic nexus is constitutional, given that the Alabama imposition is through a regulation and not a statute, the arguments in each state’s litigation may not be parallel.

DOR Explanation of the Assessment

The DOR asserts that under the new regulation Newegg has a “substantial economic presence” in Alabama.  According to Newegg, the DOR “has offered no basis for its determination” that the regulation’s requirements were satisfied during the Assessment Period. Specifically, Newegg notes that the DOR “conclusion appears to be based solely upon the fact that Newegg had ‘significant sales into Alabama,’ i.e., more than $250,000 of retail sales to Alabama customers.”

Newegg’s Grounds for Appeal

Newegg requests that the Tax Tribunal cancel the Assessment, citing the following grounds as the primary basis:

• The application of the new regulation to Newegg (and the Assessment) are unconstitutional because Newegg did not (and does not) have the necessary physical presence required to satisfy the “substantial nexus” standard for sales and use taxes under the Commerce Clause, as described by the US Supreme Court in Quill.

• The new regulation is invalid because retailers must “lack an Alabama physical presence” for it to apply. Therefore, it conflicts with both the Alabama sales and use tax statutes and the US Constitution, each of which requires a physical presence in the state by (or on behalf of) the retailer.

• The application of the new regulation to an internet retailer with no physical presence in Alabama is inconsistent with the authorizing seller’s use tax statute. Specifically, none of the provisions of the sales and use tax statutes (or any other provision in the Alabama Code) authorize the DOR to impose seller’s use tax collection obligations on internet retailers with no physical presence in the state.

The State of Nexus in Other States

The Alabama litigation represents the third prominent nexus case that involves Newegg.  Not only is the company involved in South Dakota, but it is also one of the three taxpayers involved in the Ohio Commercial Activity Tax (CAT) litigation. All three cases involve the imposition of nexus on a company without physical presence in the taxing state, one with respect to a gross receipts tax (the Ohio CAT), and the others with respect to sales and use taxes.

On May 25, 2016, the fast-tracked lawsuit filed by South Dakota was (at least temporarily) slowed down when defendants filed a Notice of Removal (Notice) in the US District Court for the District of South Dakota. Under the Federal Rules of Civil Procedure, the plaintiff (South Dakota here) has 30 days (i.e., until June 24, 2016) to file a motion to remand based on a defect in the removal procedure. However, a claim based on lack of subject matter jurisdiction can be raised at any time. According to the Notice and accompanying documentation, the basis for removal is federal question jurisdiction. Because the defendants notified the state court, the state court is likely deprived of jurisdiction to act unless the federal court remands the case back to state court. If South Dakota proceeds with the litigation in federal court, it will lose the benefits of the expedited state court appeal process enacted by Senate Bill 106. Only time will tell how the case proceeds.

Practice Note

As judicial challenges to the continued viability of Quill move further along (with Alabama now joining South Dakota as a state with potential Quill litigation pending), the impact on the status of federal legislation remains to be seen. Speaking before the Federation of Tax Administrators (FTA) yesterday, Commissioner Magee pointed out that 41 remote sellers have signed up for Alabama’s Simplified Sellers Use Tax Program, which allows them to avoid the application of the new economic nexus regulation. The Commissioner proudly touted revenue raised in excess of $1 million in the first calendar quarter of 2016 alone. Although we only know of the Newegg case at this point, it’s likely that there are many other assessments and suits to come in Alabama.

During yesterday’s FTA panel presentation on the topic (by Commissioner Magee, South Dakota Secretary Andy Gerlach, COST’s Fred Nicely and Steve Kranz) and conversations that followed, tax administrators in a number of states expressed a willingness to accept prospective voluntary disclosure agreements (VDA’s) from remote retailers. See our prior article explaining why taxpayers should say no to standard VDA lookback periods. In states where a risk of retroactive application exists (or where the taxpayer is going to begin filing anyway) it makes sense to explore the possibility of a prospective arrangement and ensure the state does not seek backward-looking compliance with their new law or position. It should be noted that, unlike South Dakota, the Alabama regulation does not contain any provisions regarding retroactivity.  The regulation took effect as of January 1, 2016, and, ostensibly, liability for retailers not collecting and remitting is accumulating. Retailers should review their positions regarding Alabama and determine the potential liability.  Retroactivity was a significant issue in the Quill case and, unlike South Dakota, there is no statute limiting the effect of a judicial decision to a prospective basis. How this will affect the litigation remains to be seen.