Illinois Tries Again With Nexus Law

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On March 28, 2013, Overstock and Amazon lost their challenge of a state tax on online sales in New York’s highest court. Further, the the Supreme Court of United States declined hearing the case, because the court determined that such a law did not violate the federal Commerce Clause. Following the Amazon decision, we expected the states to follow New York’s lead and enact its own click-through-nexus laws.

In 2011, Illinois did just that. Specifically, Illinois has a nexus law that required any company with a place of business in Illinois to collect and remit tax to Illinois. In 2011, Illinois enacted its so-called “Click Through” nexus law, which required a business to collect and remit tax if it has contact with a person or business in Illinois who referred customers to the business’s website for a commission. In this case, the trade group believed the law to be unfair, so it challenged it in court. After enacting its version of the “Click Through” Nexus law in Illinois, the Illinois courts struck it down.

With the “Click Through” Nexus debate rounding third, Illinois threw the state and local tax (“SALT”) community a curve ball with its ruling in Performance Marketing Association v. Hamer. Specifically, the court determined that such a law did violate the federal Commerce Clause and the Internet Tax Freedom Act. Many wondered if Illinois would just draft a new law to attempt to capture online-retailers, similar to the way New York did.

On August 26, 2014, Illinois announced that its governor, Pat Quinn, approved a brand new “Click-Through” nexus law. The new law, S.B. 352, expands the definition of a “retailer.” The new definition includes:

• a retailer having a contract with a person located in this State under which the person, for a commission or other consideration based upon the sale of tangible personal property by the retailer, directly or indirectly refers potential customers to the retailer by providing to the potential customers a promotional code or other mechanism that allows the retailer to track purchased referred by such persons.

In a lot of words, Illinois is clearly going after those who refer customers to another’s website to capture them within its nexus statute. In short, the Illinois rule reads very similar to the New York nexus legislation.

Illinois has enacted this law as an end around to the Performance Marketing decision last year. It seems the state legislature believes that the new law doesn’t target only online retailers but applies equally to everyone. One can bet that when the law goes into effect in January 2015, a group will be quick to challenge its enforceability. Does the new law now create Commerce Clause challenges? S.B. 352 is not likely the final fight in Illinois’ attempt to enact legislation that does not survive Constitutional muster. Regardless, until the war is waged, Illinois retailers will have an issue on their hands yet again.

Original Post By:  Jerry Donnini

Mr. Donnini is a multi-state sales and use tax attorney and an associate in the law firm Moffa, Gainor, & Sutton, PA , based in Fort Lauderdale, Florida. Mr. Donnini’s primary practice is multi-state sales and use tax as well as state corporate income tax controversy. Mr. Donnini also practices in the areas of federal tax controversy, federal estate planning, Florida probate, and all other state taxes including communication service tax, cigarette & tobacco tax, motor fuel tax, and Native American taxation. Mr. Donnini is currently pursuing his LL.M. in Taxation at NYU.

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