The Tax Hangover: Trailing Nexus
50 Pages Posted: 10 Nov 2013 Last revised: 5 Jun 2014
Date Written: June 2, 2014
Discussions regarding the scope of state taxing power over nonresident persons have generally focused on one issue — the conditions under which such persons have a sufficient nexus with a state such that the state can tax them without violating the Dormant Commerce Clause. That issue has resulted in significant debate regarding whether physical or economic presences are necessary to create state power. Unfortunately, however, the discussion has ignored an equally important question — when state power, once it has been created, terminates. Notwithstanding the lack of academic or judicial analysis of this issue, many states currently apply “trailing nexus” policies that extend their authority past the cessation of taxpayers’ nexus-creating activities. That concept challenges traditional views of the nexus requirement and seems to conflict directly with the Court’s physical-presence rule. This article analyzes the permissibility and scope of trailing nexus policies under both physical-presence and economic-nexus paradigms and finds that a disaggregated view of the nexus requirement supports its validity. The article also critiques states’ current trailing-nexus formulations and proposes an economic-latency approach that better comports with the Court’s Dormant Commerce Clause jurisprudence.
Keywords: nexus, trailing nexus, dormant commerce clause, state taxation, Quill, Marketplace Fairness
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