Affiliate Nexus in E-Commerce

53 Pages Posted: 13 Dec 2011 Last revised: 1 Feb 2014

Date Written: September 8, 2011

Abstract

This article explains why the expansion of Internet commerce has caused individual U.S. states to lose substantial amounts of tax revenue, and explores what the states are doing to combat that revenue loss. In particular, the article traces the U.S. Supreme Court precedents that prevent states from forcing Internet retailers to collect taxes on the goods they sell. After exploring the existing legal framework, the article examines California’s most recent effort to require internet retailers to collect taxes on Internet sales through so-called “affiliate nexus” legislation — legislation that imposes a tax collection obligation on out-of-state internet retailers based on the in-state presence of an affiliate company. The article explains the theoretical foundation for affiliate nexus and then reviews several lower court decisions that have considered (and rejected) the theory. The Supreme Court has not directly addressed affiliate nexus, but the article contends that to uphold California’s recently-enacted legislation would require an extension of the Court’s previous jurisprudence.

Suggested Citation

Haile, Andrew J., Affiliate Nexus in E-Commerce (September 8, 2011). Elon University Law Legal Studies Research Paper No. 2011-04, Available at SSRN: https://ssrn.com/abstract=1924510 or http://dx.doi.org/10.2139/ssrn.1924510

Andrew J. Haile (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States

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