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Life After Wayfair: Multi-State Tax Problems for Everyone



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The U.S. Supreme Court’s 2018 decision in South Dakota v. Wayfair radically changed how state sales and use taxes work in this country. For decades, the rule was that a business without a physical presence in a state could not be forced by that state to collect tax on sales to state residents. This was the “bright line” test created by the Supreme Court’s 1992 decision in Quill Corp. v. North Dakota.

The Wayfair decision did away with the bright-line test created by Quill. The “safe harbor” provided by not having physical presence in a state no longer exists. Now, every business that sells products online has a potential sales and use tax liability in every state they deliver products into. This is true even if the business does not have a physical presence in those states.

 There was no grace period given to businesses under Wayfair. It was immediately applicable when it was issued in June 2018, and automatically created potential sales and use tax liability for every business that sells products online (i.e., almost every business in the country). 

This dynamic is not yet well understood by the business community. This is largely because states have been slow to enforce their new rights. However, this slow “wind up” will not last forever. Lawyers and CPAs should help their clients prepare now for the inevitable problems that Wayfair will cause for businesses of every size and shape.

Here are just a few of the critical topics Steve Hogan will focus on in his exclusive LISI Webinar:
  • How did we get here? The law before Wayfair and why it changed;
  • How states have been addressing their options after Wayfair;
  • How businesses can “triage” their potential exposure and put together a compliance plan;
  • The weird world of “nexus” that was unleashed by Wayfair and what it means for different types of businesses;
  •  This includes marketplace nexus (and Amazon’s latest legal battles), tail nexus, the limits of due process, and arguments we can expect to see emerge over the next few years.


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Steven M. Hogan is a shareholder with Ausley McMullen, P.A and practices in the areas of commercial litigation and State and Federal tax law. Mr. Hogan’s litigation practice focuses on resolving commercial disputes among businesses. He has represented both plaintiffs and defendants in commercial litigation matters. In his tax practice, Mr. Hogan represents businesses and individuals faced with assessments or audits from the Florida Department of Revenue and the IRS. He advises clients and their accountants on “best practices” in complying with Florida and Federal tax law. Mr. Hogan’s scholarship in the field of tax law has appeared in publications such as The Florida Bar Journal, State Tax Notes, and Bloomberg/BNA. Mr. Hogan has served multiple terms as a Director of the Tax Section of The Florida Bar, including three terms as the Director of the State Tax Division. Mr. Hogan has also served as an adjunct professor at the Florida State University College of Law, co-teaching an Estate Planning seminar. Before joining the firm, Mr. Hogan served at the Florida Supreme Court as a Judicial Extern in the office of Justice Charles T. Canady. While in law school, Mr. Hogan served as Senior Articles Editor of the Florida State University Law Review."


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