Employee Visits in Washington Establishes Nexus

An out-of-state manufacturer of vapor barriers and insulation facings established nexus in Washington state for business and occupation (B&O) tax purposes. Even though the company did not have an office in the state and made no direct sales, by having the company’s employees visit customers to establish and maintain a market was enough activity in Washington to create nexus. The court stated that the language of Quill, 504 U.S. 298 (1992), was limited to sales tax and did not support the company’s contention that physical presence was required to establish nexus in the context of B&O taxes. Furthermore, the activities of the company’s employees within Washington were significantly associated with its ability to establish and maintain its market, particularly in light of a business model that entailed maintaining a small number of high-volume customers long term. The Washington Court of Appeals also held that the company’s customers received the products in Washington. An applicable rule specifies that B&O tax applies to interstate sales of tangible personal property when goods originating outside Washington are received by the purchaser in Washington and the out-of-state seller had nexus with Washington. (Lamtec Corp v. Department of Revenue, Washington Court of Appeals, Division II, No. 35716-8-11, August 4, 2009)

Posted on January 1, 2010