The Massachusetts Supreme Judicial Court has accepted a direct appeal from an internet retailer contesting the Department’s position that the in-state presence of cookies and apps were sufficient to satisfy the physical presence nexus standards in place prior to the US Supreme Court’s decision in South Dakota v. Wayfair, Inc. The Department assessed use tax on the basis that the cookies and apps placed on the devices of Massachusetts-based consumers was sufficient to create physical presence nexus. The Massachusetts Appellate Tax Board disagreed, determining cookies and apps did not satisfy the physical presence standard for pre-Wayfair periods, while also rejecting the Department’s position that Wayfair should be applied retroactively. Despite its victory at the lower level, the taxpayer initiated the direct appeal to the Supreme Judicial Court once the Department filed a notice of appeal to the Massachusetts court of appeals, an intermediate appellate court.
