Under both parts of Section 381(a), however, the statutory text requires that the business's "only business activities" in the taxing state fall within the scope of "solicitation of orders" for interstate sales. 15 USC § 381(a) (emphasis added); see Wrigley, 505 U.S. at 223 (same); Herff Jones Co. v. Tax Com., 247 Or. 404, 412, 430 P.2d 998 (1967) (same). "Solicitation of orders" stops short of the business making sales.

The totality of the solicitors' or representatives' activities must be considered, and any nexus with the taxing state that cannot accurately be characterized as "solicitation of orders" is sufficient to remove the protection of § 381: e. g., maintaining personal property in the state (Olympia Brewing, supra), employing technicians instead of salespeople (Clairol, supra), or having representatives collect deposits on merchandise ordered or balances of payment on merchandise delivered. Herff Jones Co. v. State Tax Comm'n, 247 Or. 404, 430 P.2d 998 (1967). No such activities were involved in Gillette, supra, nor are such activities involved in the instant case.

Cal-Roof Wholesale v. Tax Com., 242 Or. 435, 437, 410 P.2d 233 (1966).Herff Jones Co. v. Tax Com., 247 Or. 404, 407, 412, 430 P.2d 998 (1967).Iron Fireman Co. v. Tax Com., 251 Or. 227, 230-32, 445 P.2d 126 (1968).

The undisputed facts outlined above show that RDA had a right to exercise control over RDSS; RDSS was therefore not an independent contractor under this approach. Herff Jones Co. v. State Tax Commission (1967) 247 Or. 404, 409 [ 430 P.2d 998]; Tonka Corp. v. Commissioner of Taxation (1969) 284 Minn. 185, 191-193 [ 169 N.W.2d 589]. One commentator has suggested a functional or activities approach more tied to the section 381(d)(1) language; this approach examines how the alleged independent contractor engaged in the sales activities as a business and how it held itself out to others.

We have also examined numerous cases which specifically discuss or allude to the federal statute, but generally, these cases merely discuss § 381 in conjunction with state "doing business" statutes; none support the formula articulated by the tax court. See, e.g., Heublein, Inc. v. South Carolina Tax Commission, 409 U.S. 275, 93 S.Ct. 483, 34 L.Ed.2d 472 (1972); Herff Jones Co. v. State Tax Commission, 247 Or. 404, 430 P.2d 998 (Or. 1967); Hervey v. AMF Beaird, 250 Ark. 147, 464 S.W.2d 557 (Ark. 1971); Tonka Corporation v. Commissioner of Taxation, 284 MN. 185, 169 N.W.2d 589 (1969); Hawes v. William L. Bonnell Co., 116 Ga. App. 184, 156 S.E.2d 536 (1967); Coors Porcelain Co. v. State, 517 P.2d 838, 183 Colo. 325 (1974); Iron Fireman Manufacturing Co. v. State, 445 P.2d 126, 251 Or. 227 (1968); Jantzen, Inc. v. District of Columbia, 395 A.2d 29 (D.C.App. 1978); Drackett Products Co. v. Conrad, 370 N.W.2d 723 (N.D. 1985); Chattanooga Glass Co. v. Strickland, 244 Ga. 603, 261 S.E.2d 599 (1979); Gillette Co. v. State Tax Commission, 56 A.D.2d 475, 393 N.Y.S.2d 186 (1977), aff'd, 45 N.Y.2d 846, 410 N.Y.S.2d 65, 382 N.E.2d 764 (1978); Indiana Department of Revenue v. Kimberly Clark, 275 Ind. 378, 416 N.E.2d 1264 (S.Ct.Ind. 1981); Sjong v. State Department of Revenue, 622 P.2d 967 (S.Ct.Alaska 1981) (appeal dismissed, 454 U.S. 1131, 102 S.Ct. 986, 71 L.Ed.2d 284 (1984)). The legislative history of 15 U.S.C. § 381 makes clear

See 505 U.S. at 232-33. In Herff Jones Co. v. Tax Com., 247 Or. 404, 410, 430 P.2d 998 (1967), the court concluded, upon analysis, that the Oregon-resident sales personnel were not independent contractors. In Ann Sacks Tile & Stone v. Dept. of Rev., 20 OTR 377, 382 (2011), appeal dismissed on procedural grounds, 352 Or. 380, 287 P.3d 1062 (2012), this court expressly assumed that plumbers performing warranty work pursuant to contracts with Kohler, Inc. (Kohler) were independent contractors.

Whether the federal act does invalidate the portion of the tax measured by allocated net income depends on whether Clairol's "only business activities within [the] State" are those described in § 381(a), the solicitation of orders. See Herff Jones Company v. State Tax. Comm., 247 Or. 404, 430 P.2d 998, 1001 (Sup. Ct. 1967): Therefore, it seems clear that in order to come within the purview of P.L. 86-272 the only business activity which plaintiff's sales representatives could engage in is the solicitation of orders.

Repair and servicing may help to increase purchases, but it is not ancillary to requesting purchases, and cannot be converted into "solicitation" by merely being assigned to salesmen. See, e.g., Herff Jones Co. v. State Tax Comm'n, 247 Or. 404, 412, 430 P.2d 998, 1001-1002 (1967) (no § 381 immunity for sales representatives' collection activities).The dissent states that ancillarity should be judged, not from the perspective of the seller, but from the perspective of the buyer.

The right to terminate without liability is not incompatible with some kinds of independent contracts, while in some relations of undoubted "employment" the employer's right of discharge is severely confined by virtue of a collective bargaining agreement, an individual contract, or in the case of public employes, by tenure or civil service laws. Most of the cases cited by the Oregon Tax Court (and by this court in an earlier tax case, Herff Jones Co. v. Tax Co., 247 Or. 404, 430 P.2d 998 (1967), concern employment status for purposes of liability for tort damages or workers' compensation. When a statute specifically defines the employment relationship, it is unnecessary and potentially misleading to turn to formulations found in other statutory or common law decisions.

For example, in Olympia Brewing Co. v. Dept. of Revenue, 266 Or. 309, 511 P.2d 837 (Ore. 1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 872 (1974), the presence of beer kegs by which retailers could dispense draft beer destroyed the section 381(a) exemption and was sufficient to justify imposition of the state corporation income tax. Other activities which the court found went beyond solicitation included: replacing and servicing damaged merchandise, Miles Laboratories, Inc. v. Dep't of Revenue, 274 Or. 395, 546 P.2d 1081 (1976); holding consultations and contracts for sale of goods, Iron Fireman Mfrg. Co. v. State Tax Comm'n, 251 Or. 227, 445 P.2d 126 (1968); and collection by salesmen of initial deposits on merchandise, Herff Jones Co. v. State Tax Comm'n, 247 Or. 404, 430 P.2d 998 (1967). For a discussion on the Oregon line of cases, see Hartman, "Solicitation" and "Delivery" Under Public Law 86-272: An Uncharted Course, 29 Vand.L.Rev. 353, 364-77 (1976).