Questioning Quill

Abstract

The physical presence rule of Quill Corp. v. North Dakota is under increasing attack from the “Kill Quill” movement — a consortium of state tax administrators, industry leaders, and academics opposed to the decision. The physical presence rule prohibits states from requiring many out-of-state vendors to collect taxes on goods sold into the states. Kill Quill states have grown increasingly aggressive, and litigation is well underway in South Dakota and Alabama over those states’ direct disregard for the rule. As a petition to the Supreme Court for certiorari grows closer, the case for overturning the physical presence rule remains cloudy. Technology and the economy have changed in the 25 years since Quill was decided, but are these changes enough to convince the Court to reexamine the rule? This Article argues that more will be needed; attention must be drawn to the analytical gaps in the cases endorsing the physical presence rule. These cases have failed to explain the basis for requiring any connection between a taxing state and a taxpayer under the Commerce Clause (under which the physical presence rule originates) and have reflexively blended together the substance of sales taxes and use taxes. Through unpacking these issues, the Article exposes principles to guide the development of fundamentally sound rules for sales and use tax jurisdiction.

Keywords: Taxation; State and Local Taxation; Quill; Use Tax Collection; Jurisdiction to Tax; Commerce Clause

JEL Classification: K34