For the past three years, Amazon.com and the state of New York have been sparring over whether marketing affiliates based in New York constitute nexus for the online retailer, thus requiring the collection, tracking and reporting of sales and usage tax for affiliate-driven online purchases.
New York enacted the statute in 2008, upon which Amazon.com filed suit. In January 2009, New York’s trial court found in favor of the state, moving the case to the appellate level; the Appellate Court has been reviewing the case since September 2009.
With the likelihood of a decision coming back from New York’s Appellate Court in the near future, Target Marketing talked to John F. Cooney, a partner in the Washington, D.C., office of law firm Venable LLC. Cooney wrote an amicus brief on behalf of the Performance Marketing Alliance, supporting the trade group’s assertion that the New York law is unconstitutional. Here, he explains the legislation’s impact on the practice of affiliate marketing, the larger movement in the states to enact similar laws and the anticipated path this battle will take.
The first one was the New York state tax statute. Then Rhode Island was second … it passed that end of June, very early July of 2009. In that situation, because Rhode Island was a small state, Overstock and Amazon simply cut off all their affiliates in Rhode Island. It’s a small state, so there probably were only several hundred, but probably less than a thousand people that were adversely affected.
Since then, I think North Carolina has passed a similar statute, and there are [bills] that are being considered at various levels of the states’ legislative processes this year. I think Connecticut is probably the state that’s closest to adopting a new one. But these bills have been considered by various committees in the state legislatures, typically as part of the budget process. And the budget is one of the last things to be resolved before the legislature adjourns. So there are a lot under consideration, and if new ones are going to pass, they’ll probably pass at the end of June, as most state legislatures tend to go out of session [then].