This appeal is governed by the United States Supreme Court decision in National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505 (1967), and our recent decision in Cally Curtis Co. v. Groppo, 214 Conn. 292, 572 A.2d 302, cert. denied, 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). In National Bellas Hess, Inc., the United States Supreme Court determined that constitutional constraints limit the authority of a state to impose sales and use tax liability upon an out-of-state seller.
However, Sharper Image denies that it has nexus for the purpose of imposing a use tax on the catalogs mailed from out of state to in-state residents as a completely different activity from that of in-state sales. The issue of nexus was raised in Cally Curtis Co. v. Groppo, 214 Conn. 292, 572 A.2d 302, cert. denied, 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990), where the plaintiff, a California corporation, was engaged in the business of selling, leasing and distributing video tapes for personnel training purposes. Cally Curtis engaged in the sale and rental of video tapes to customers in Connecticut.
The defendant maintains, however, that the legislature intended the words "in this state" as a modifier of "wholesale and retail dealers" and not of "marketing and distribution." In support of this contention, the defendant suggests that the legislature added "in this state" in order to establish a jurisdictional nexus with Connecticut; cf. Cally Curtis Co. v. Groppo, 214 Conn. 292, 297-99, 572 A.2d 302 (1990); rather than as a definition of the transactions to which the gross earnings tax applies. Because the defendant views the clause "in this state" as something other than a limitation on "marketing and distribution," the defendant urges us to construe 12-587 to determine the taxability of petroleum product sales according to the place at which the products are delivered rather than the place of their ultimate destination.