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- Title
ANSWERING THE CALL: SOUTH DAKOTA V. WAYFAIR, INC. AND A CHALLENGE TO THE PHYSICAL PRESENCE RULE.
- Authors
MILLER, ERIC C.
- Abstract
South Dakota answered Justice Kennedy's call to challenge the physical presence rule regarding taxing out-of-state retailers by passing Senate Bill (S.B.) 106. Ultimately, South Dakota's challenge reached the U.S. Supreme Court as South Dakota v. Wayfair, Inc. Justice Kennedy's majority opinion in South Dakota v. Wayfair, Inc., correctly determined the physical presence rule was a formalistic and anachronistic rule, which does not properly account for the expansion of technology. The physical presence rule gave the ability for retailers to have a significant virtual presence in consumers ' lives while not having any physical presence in the State; and provided an artificial competitive advantage over in-state brick and mortar retailers. The Court correctly overturned National Bellas Hess v. Department of Revenue, and Quill Corp. v. North Dakota, and based on South Dakota's statutory scheme, approved South Dakota challenge to require large remote out-of-state retailers to collect and remit sales tax, alleviating a crisis the physical presence rule caused in South Dakota and leveling the playing field regarding interstate commerce.
- Subjects
WAYFAIR LLC; TAXATION of the retail industry; LEGISLATIVE bills; INTERNET stores; SALES tax
- Publication
South Dakota Law Review, 2019, Vol 64, Issue 1, p94
- ISSN
0038-3325
- Publication type
Article