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Abstract

States have reacted to the rise of Internet commerce as any governmental body would, with a “hungry eye” for increased tax revenue. Despite the Supreme Court’s holding in Quill, and constitutional limitations on state tax jurisdiction, states have developed their own nexus statutes that run afoul of the Court’s bright-line physical presence rule. What is more, “brick and mortar” establishments interested in “leveling the playing field” with their high-tech competition wholeheartedly support the states in their endeavor. In proposing the Marketplace Fairness Act (MFA), a bill intended to restore state sovereignty regarding sales and use tax laws, Congress too has seemingly sided with the states. The MFA legislatively “overrules” Quill by replacing Quill’s bright-line rule of physical presence with one of economic nexus, a proposition that neither Bellas Hess nor McIntyre stand for. As such, the MFA raises a myriad of concerns, most notably Due Process and Commerce Clause concerns, that if not addressed will surely muddy the waters of an already complex tax system.

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