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Constitutional Limits on IT Sourcing by Martin I V olume 86, Number 9 ¢ November 27, 2017 Here, There, and Everywhere: Constitutional Limits on IT Sourcing by Martin I. Eisenstein and David W. Bertoni Reprinted from State Tax Notes, November 27, 2017, p. 805 © Tax Analysts 2017. All rights reserved. does not claim copyright in any public domain or third party content. EYES ON E-COMMERCE state tax notes® Here, There, and Everywhere: Constitutional Limits on IT Sourcing by Martin I. Eisenstein and David W. Bertoni explore the significant federal constitutional limitations under the commerce and due process clauses on the power of the states to “situs” information technology and cloud services for both sales and gross receipts taxes based on the claimed “receipt of the benefit of the service” in the taxing state. In light of those constitutional tests, we also analyze the Streamlined Sales and Use Tax Agreement’s sourcing waterfall approach, which applies an identical situs test for services as is used for the sale of tangible personal property. As we explain, states simply cannot justify sourcing services based solely on the location of the purported “benefit of the service,” as an Martin I. Eisenstein is the managing partner attempt to replicate the rules for sourcing the sale and David W. Bertoni is a partner at Brann & of tangible personal property. Services require a Isaacson. Both practice state and local tax law sourcing rule tailored to the nature of services, so and provide SALT planning, risk analysis, and audit defense and litigation services as to be able to satisfy the applicable constitutional to information technology service and product requirements. Those requirements apply even if providers, telecommunications companies, and the seller has a physical presence in the taxing online and direct marketers. They are also state and would be liable for taxes on the sales of coauthors of the blog Eyes on eCom Law and tangible personal property delivered there. The can be reached at [email protected] “substantial nexus with the transaction” and “fair and [email protected]. apportionment” requirements of the four-part In this edition of Eyes on E-Commerce, the commerce clause test, as well as the nexus authors explore the significant federal requirement of the due process clause, dictate constitutional limitations under the commerce something more, because of critical differences and due process clauses on the power of the between the sale of tangible personal property states to “situs” IT and cloud services for both and the sale of services. sales and gross receipts taxes based on the claimed “receipt of the benefit of the service” in Background the taxing state. There are few U.S. Supreme Court decisions In 2016 we wrote an article, “Where’s Waldo: that concern the constitutional limits on a state’s Sourcing IT and Cloud Services.”1 This article power to tax the sale of services. That is likely picks up where that article left off. Here, we because although 45 states and the District of Columbia impose a sales tax on the retail sale or use of tangible personal property, far fewer states impose such taxes on services. Similarly, only a 1 Martin I. Eisenstein and Michael E. Carey, “Where’s Waldo: Sourcing few states, such as Ohio, Tennessee, and IT and Cloud Services,” State Tax Notes, Aug. 8, 2016, p. 429. STATE TAX NOTES, NOVEMBER 27, 2017 805 For more State Tax Notes content, please visit www.taxnotes.com. © Tax Analysts 2017. All rights reserved. does not claim copyright in any public domain or third party content. EYES ON E-COMMERCE Washington, impose gross receipts taxes on First, Central Greyhound Lines Inc. v. Mealey,3 providers of services in general, although gross although decided before Complete Auto Transit, receipts taxes on transportation and used a similar analysis in deciding that an telecommunications carriers are more common. unapportioned New York tax on gross receipts for Thus, the cases that have addressed the states’ interstate transportation from points within New power to tax services have generally been in the York and over routes that went through New area of taxation of interstate transportation or Jersey and Pennsylvania was unconstitutional. In telecommunications. what seems today a truly unremarkable A trio of U.S. Supreme Court cases apply the proposition, the Supreme Court stated that New modern-day test under the commerce clause, as York was not prohibited from taxing the set forth in Complete Auto Transit Inc. v. Brady,2 to transportation simply because it was interstate, taxation of interstate transportation and but must limit its taxes to the portion of the trip telecommunications services, but the lessons they that took place within New York. According to the teach have applicability to services generally. The Court, the tax must be “fairly apportioned . to unique problems that arise, common to the the business done within the state.”4 On that basis, taxation of all services, generally revolve around the Court struck down the tax because it was not difficulties in determining where the services are limited to the portion of the services that took “performed” (which may be in no one geographic place in New York. The Court upheld the vitality location, for example, for cloud-based of the Central Greyhound decision most recently in transactions) and where they are “delivered” Comptroller of the Treasury of Maryland v. Wynne.5 (which can be in one or many different geographic State courts have continued to follow the Central locations other than where the service is Greyhound requirement that a carrier’s revenue performed). Interstate transportation and must be apportioned to travel within the state.6 telecommunications services (other than cellular Second, in Oklahoma Tax Commission v. Jefferson services or voice over internet protocol) may Lines Inc.,7 the Supreme Court limited the present the easiest cases of all, as, in most apportionment principle of Central Greyhound instances, there is a fixed point of origination and Lines to a gross receipts tax imposed on the receipt that may be readily determined from the provider, finding that an Oklahoma sales tax on location of the buyer and seller. For data the purchaser of an interstate trip, in contrast, did processing, storage, and cloud computing not need to be limited to the portion of the trip services, the actual “services” are not provided or that occurred in Oklahoma. The vice of the New delivered to a location of the customer. It is the York unapportioned gross receipts tax on the customer that accesses the provider’s place of provider in Central Greyhound Lines was that the business, where the service is performed, and the provider was exposed to a similar tax on the same customer often is responsible for making the gross receipts, thus encumbering interstate connection to the provider’s place of business. commerce with multiple, overlapping tax Moreover, the seller of the services may not know the location or locations from which the 3 customers access the service. Compounding the 334 U.S. 653 (1948). 4 issue is that access may be by mobile device, and 334 U.S. at 664, quoting Western Livestock v. Bureau of Revenue, 303 U.S. 250, 255 (1938). there may be many persons authorized to access 5 135 S. Ct. 1787, 1799, 191 L. Ed. 2d 813 (2015). the service and do so from several different — and 6 See, e.g., South Pacific Transportation Co. v. State Department of Revenue, often mobile — locations. 202 Ariz. 326, 331, 44 P.3d 1006, 1011 (Ct. App. 2002) (rejecting the We now turn to the three informative U.S. revenue department’s claim that “no apportionment is required because the passage of Southern Pacific’s route through New Mexico was a Supreme Court cases. ‘necessary deviation,’ and formed a much smaller portion of the total route than did the taxpayer’s non-New York mileage in Central Greyhound”); and Green v. Western Union Telegraph Co. (Fla.Sup.1960), 123 So.2d 712 (applying Central Greyhound and finding that telegraph 2 messages between two parties located in the same state, which travel The four-part Complete Auto test requires that “the tax is applied to outside the state for transmission purposes only, are subject to a state an activity with a substantial nexus with the taxing State, is fairly gross receipts taxes on all charges except for those regarding use of the apportioned, does not discriminate against interstate commerce, and is out-of-state transmission facilities). fairly related to the services provided by the State.” 430 U.S. 274, 279 7 (1977). 514 U.S. 175, 190-191 (1995). 806 STATE TAX NOTES, NOVEMBER 27, 2017 For more State Tax Notes content, please visit www.taxnotes.com. © Tax Analysts 2017. All rights reserved. does not claim copyright in any public domain or third party content. EYES ON E-COMMERCE burdens.8 In contrast, the taxpayer in Jefferson State to tax a call. See National Bellas Hess Inc. v. Lines — the buyer of the services — was not Department of Revenue of Illinois, 386 U.S. 753 (1967) subject to double taxation because the taxable (receipt of mail provides insufficient nexus).” In event was the “agreement, payment, and delivery analyzing the external consistency test of the fair of some of the services in the taxing State. No apportionment prong, the Court pointed out that other State could claim to be the site of the same only two states could tax the call: (1) the state combination.”9 The Court noted that the where the call originates or terminates and where “economic activity represented by the receipt of the service address is located; and (2) the state the ticket for ‘consumption’ in the form of where the call originates or terminates and where commencement and partial provision of the the billing address is located.13 Thus, the Court transportation thus closely resembles” the noted that there was a reduced risk of duplicative delivery of goods within the state.
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