Here, too, the Constitution requires "some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Bros. Co. v. Maryland, 347 U.S. 340, 344-345; Scripto, Inc. v. Carson, 362 U.S. 207, 210-211. See also American Oil Co. v. Neill, 380 U.S. 451, 458.
The requisite nexus has generally been found when the foreign retailer arranges for local representatives to make sales within the taxing state. (See, e.g., Tyler Pipe Indus. v. Washington Dept. of Revenue (1987) 483 U.S. 232, 249-250 [97 L.Ed.2d 199, 215, 107 S.Ct. 2810, 2821]; Scripto v. Carson (1960) 362 U.S. 207 [4 L.Ed.2d 660, 80 S.Ct. 619]; General Trading Co. v. Tax Comm'n. (1944) 322 U.S. 335 [88 L.Ed. 1309, 64 S.Ct. 1028]; Felf Tarrant Co. v. Gallagher (1939) 306 U.S. 62 [83 L.Ed. 488, 59 S.Ct. 376].
The showing of a sufficient nexus cannot be defeated by the argument that the taxpayer's representative was properly characterized as an independent contractor rather than an agent. Cf. Scripto, Inc. v. Carson, 362 U.S. 207.
It is established that under appropriate circumstances, the seller's presence within the taxing state will warrant the imposition of an obligation to collect and remit use taxes on goods sold elsewhere but delivered within the state. ( Scripto v. Carson (1960) 362 U.S. 207, 212 [4 L.Ed.2d 660, 664, 80 S.Ct. 619]; General Trading Co. v. Tax Com. (1944) 322 U.S. 335, 338 [88 L.Ed. 1309, 1311-1312, 64 S.Ct. 1028]; Nelson v. Montgomery Ward (1941) 312 U.S. 373, 376 [85 L.Ed. 897, 899, 61 S.Ct. 593]; Nelson v. Sears, Roebuck Co. (1941) 312 U.S. 359, 364-366 [85 L.Ed. 888, 892-893, 61 S.Ct. 586, 132 A.L.R. 475]; Felt Tarrant Mfg. Co. v. Gallagher (1939) 306 U.S. 62, 66 [83 L.Ed. 488, 491, 59 S.Ct. 376]; Monamotor Oil Co. v. Johnson (1934) 292 U.S. 86, 95 [78 L.Ed. 1141, 1148, 54 S.Ct. 575]; People v. West Publishing Co. (1950) 35 Cal.2d 80, 89-92 [ 216 P.2d 441]; and see Bank of America v. State Board of Equalization, supra, 209 Cal.App.2d 780, 798-799.) It must be assumed that the Legislature intended to encompass all retailers to the full extent permitted under constitutional principles.
Id. at 561, 97 S.Ct. at 1393,51 L.Ed.2d at 640 (quoting Miller Bros., supra, 347 U.S. at 344-45, 74 S.Ct. at 538-39, 98 L.Ed. at 748). Thus, in Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619,4 L.Ed.2d 660 (1960), local solicitation by commission salesmen sufficed to provide the nexus. In terms of constitutional analysis, the question turns on how the taxpayer has come into the state to work the market.
We begin with Scripto, Inc. v. Carson, 362 U.S. 207, 207–10, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960) ( Scripto ), in which the court considered whether Florida could constitutionally impose a state use tax on a Georgia retailer for the sale of goods shipped to purchasers in Florida. Noting that there must be “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax”; (internal quotation marks omitted) id., at 210–11, 80 S.Ct. 619; the court concluded that, because the seller had “[ten] wholesalers, jobbers, or ‘salesmen’ conducting continuous local solicitation in Florida and forwarding the resulting orders from that [s]tate to [Georgia] for shipment of the ordered goods,” the required nexus was present.
In McGoldrick v Berwind-White Co. ( 309 U.S. 33), the vendor's responsibility to collect the tax on the sale of coal by a Pennsylvania producer to a New York City purchaser was upheld because "the tax is conditioned upon a local activity, delivery of goods within the state upon their purchase for consumption" (id., at 58 [emphasis supplied]). Until Quill Corp. v North Dakota, the constitutionally required nexus between the taxing State and the activity, entity or property subject to the tax was applied indistinguishably for purposes of both Due Process and Commerce Clause analysis, i.e., a definite link or minimum connection (see, National Bellas Hess v Department of Revenue, 386 U.S. 753, 756-757; Scripto v Carson, 362 U.S. 207, 210-211). Some physical presence of the vendor in the taxing State was noted as a factor justifying the imposition of the sales and use tax collection obligation.
However, if such a vendor maintains a "physical presence" in the taxing state, the "substantial nexus" requirement is fulfilled. In Scripto Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660 (1960), the Supreme Court of the United States approved the imposition of a use tax by the state of Florida against a Georgia corporation that sold and shipped writing instruments to Florida residents from its principal place of business in Atlanta. Scripto had no office or regular employees in the state of Florida. Although orders for Scripto's products were solicited in Florida by "advertising specialty brokers," or wholesalers, who were residents of Florida, Scripto opposed the imposition of the use tax and denied it had the requisite "physical nexus" in Florida because its contract with its brokers specifically provided they were "independent contractors.
"Whether or not a State may compel a vendor to collect a sales or use tax may turn on the presence in the taxing State of a small sales force, plant, or office. Cf. National Geographic Society v. California Bd. of Equalization, 430 U.S. 551 (1977); Scripto, Inc. v. Carson, 362 U.S. 207 (1960)." Quill, 504 U.S. at 315.
Whether these figures alone reflect a substantial flow of goods into Alabama we need not determine since such a substantial flow is further "evidenced by the amount assessed against appellant [petitioner] on the statute's 3% basis over a period of but four [six] years." Scripto, Inc. v. Carson, 362 U.S. 207, 80 S.Ct. 619, 4 L.Ed.2d 660. (The import of this factor will hereinafter appear in this opinion.) Based on the assessments, it would appear petitioner averaged doing approximately $50,000 worth of business annually in Alabama, or a total of $300,000 for the six years.