미국 판례법상 주세(州稅) 넥서스(Nexus) 판단에 적용되는 심사기준의 전환에 관한 연구 - South Dakota v. Wayfair, Inc. 판결을 중심으로 -

On June 21, 2018, the US Supreme Court issued its opinion in South Dakota v. Wayfair, Inc. et al., a case challenging South Dakota’s anti-Quill sales tax nexus law, in which it overturned the decades-old physical presence nexus standard required in order for a state or local government to impose a sales or use tax collection responsibility upon a remote seller. In a 5-4 decision, the Court overruled its earlier decisions in Quill and National Bellas, holding that the physical presence rule promulgated under these decisions was “unsound and incorrect.” According to Wayfair Court, “while Quill’s physical presence standard “may have seemed like a ‘clear,’ ‘bright-line test’, it now threatens to compound the arbitrary consequences that should have been apparent from the outset.” The Court supposed that it “should not maintain a rule that ignores these substantial virtual connections to the State.” The Court noted that a physical presence requirement for nexus puts retailers with physical presence in the state at a disadvantage to solely online or remote retailers. Also, the physical presence rule has limited States’ ability to seek long-term prosperity and has prevented market participants from competing on an even playing field. The US Supreme Court decision in Wayfair appears to validate South Dakota’s law and may potentially validate other state’s sales-based economic sales tax nexus laws or administrative rules that fit within the South Dakota framework. While many of these states have enjoined enforcement (or delayed the effective date) pending the outcome of Wayfair, these statutes are now arguably effective and enforceable or will be shortly after any applicable injunctions are lifted. In the Absence of Quill and Bellas Hess, the first prong of the Complete Auto test under the Commerce Clause simply asks whether the state tax applies to an activity with a substantial nexus with the taxing State. For the Court, tax nexus is established ‘when the taxpayer avails itself of the substantial privilege of carrying on business’ in the jurisdiction. Legislative action on either federal or state level will be needed to set out the specific economic nexus rule to decide whether the nexus is clearly sufficient based on both the economic and virtual contacts a online retail sellers have with states. With the Supreme Court’s decision in Wayfair, inbound non-US companies, including those of Korea, are now faced with potential collection and filing responsibilities in states with laws similar to those of South Dakota as well as those states with provisions extending nexus to “the extent permissible under the US Constitution.” The online sellers of Korea with US customers should study and proactively respond to the legislative changes following Wayfair, as this case may potentially impact the state-level nexus determinations relative to income, gross receipt, telecome, utility and/or franchise taxes.