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Constitutional Issues

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California’s long-anticipated market-based sourcing “guidance” is finally out. Legal Ruling No. 2022-01 provides the Franchise Tax Board’s take on how to find the market in certain business-to-business sales. Though the guidance emphasizes that a seller should look to where its direct customer receives the benefit of sales of services, it keeps with current market-based sourcing trends amongst states and directs taxpayers to source such receipts based on the location of the taxpayer’s customer’s customer. The…

On March 4, 2022, a federal judge ruled that the federal Tax Injunction Act (“TIA”) bars a challenge to Maryland’s Digital Advertising Gross Revenues Tax (“Digital Ad Tax”) from proceeding in federal district court, but does not bar the plaintiffs from challenging Maryland’s prohibition on passing the tax to a customer “by means of a separate fee, surcharge, or line-item” (the “Pass-Through Prohibition”). Chamber of Commerce of the United States of America v. Franchot, No.…

Ever since the U.S. Supreme Court overturned the physical presence nexus requirement for state sales and use taxes in South Dakota v. Wayfair, 138 S. Ct. 2080 (2018), taxpayers and practitioners have questioned the extent to which the Court’s holding applies to locally administered sales and use taxes.  This question is often rooted in the Court’s statement in Wayfair that “States may not impose undue burdens on interstate commerce” and its reference to Pike v.…

In Siemens USA Holdings Inc. v. Geisenberger, No. 20-2991 (3d Cir. 2021), the Third Circuit found that the District Court erred (1) in holding that Siemens’ preemption claim was unripe, and (2) in denying Siemens’ motion for a preliminary injunction.  Both the question of ripeness and the injunction request related to whether the escheat priority rules preempted certain audit procedures, as opposed to the validity of an assessment.  Specifically, Siemens brought the lawsuit claiming, among…