Up the Amazon Without a Paddle: Examining Sales Taxes, Entity Isolation, and the “Affiliate Tax”

June 16, 2012

As a result of the Supreme Court’s decision in Quill v. North Dakota, unless a retailer has a physical presence in a state, it is not obliged to collect sales taxes in that state. In order to avoid collecting sales taxes, many companies like Amazon.com have set up subsidiary companies in many states to ship, but not sell, goods to customers. This tactic is called entity isolation. In response, states are creating legislation, commonly, but inaccurately, called an “affiliate tax,” which provides that if a company makes a certain amount of money through an affiliate’s presence in the state, it is deemed to have legal physical presence and is required to collect sales taxes. This Recent Development discusses how Quill has reacted to the Internet age, the possibility of states cutting through entity isolation, and the constitutionality of the so- called “affiliate tax.”