Avnet, Inc., Respondent/cross-appellant v. Dept. Of Revenue, Appellant/cross-respondent ( 2015 )

FILED
COURT OF APPEALS
11
2015 APR 28 AN 8: 35
STAT F SI- GTON
BY
DFPU
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
AVNET, INC., No. 45108 -5 -II
Respondent /Cross Appellant,
PUBLISHED OPINION
v.
STATE OF WASHINGTON, DEPARTMENT
OF REVENUE,
Appellant /Cross Respondent.
BJORGEN, A.C. J. — Avnet Inc. challenges the assessment by the Department of Revenue
Department) of business and occupation ( B &O) tax on two categories of sales of goods
delivered to Washington addresses. The trial court granted summary judgment to Avnet
regarding one category of sales and to the Department regarding the other. The Department .
appeals, arguing that the B & O tax applies to all of Avnet' s Washington -bound sales. Avnet
cross -appeals, arguing that both the Department' s own rules and the federal constitution' s
No. 45108 -5 -If
commerce clause' prohibit the State from imposing the B & O tax on either of the disputed
categories of sales.
Because the B & O statute and regulations subject both categories of Avnet' s Washington -
bound sales to the B & O tax consistently with the commerce clause, we reverse the grant of
summary judgment to Avnet and remand for entry of judgment in favor of the Department. We
otherwise affirm.
FACTS
Avnet Inc., a New York corporation headquartered in Arizona, describes itself as " one of
the largest distributors of electronic components, computer products and embedded technology
serving customers globally." Clerk' s Papers ( CP) at 194, 424. All of Avnet' s products ship
from distribution centers outside Washington. During the period at issue here, however, Avnet
maintained an office in Redmond, Washington with more than 40 employees, serving customers
in Washington and eastern Idaho and conducting other activities related to market and product
development.
Following an audit, the Department determined that Avnet had miscalculated the amount
of B &O tax duet for 2003 through 2005 by improperly excluding two categories of sales of
Washington -bound products described as " National Sales" and " Third Party Drop- Shipped
Sales." CP at 195. The Department determined that Avnet owed, with interest included,
556, 330 in back taxes from the audit period, $ 386, 179 of which arose from the Washington -
bound national and drop- shipped sales at issue here.
U. S. CONST., art. I, § 8, cl. 3.
2
Avnet paid B &O
tax on all sales during the audit period of Washington -bound products in
which its Redmond office directly participated, which amounts are not at issue here.
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No. 45108 -5 -II
The national sales category involves transactions where an Avnet customer places an
order from a location outside Washington with an Avnet sales office outside Washington, but
directs Avnet to ship some or all of the products to one of the customer' s Washington facilities.
The drop- shipped sales category also involves an Avnet customer located outside Washington
placing an order with an Avnet sales office outside Washington. In this type of sale, however,
Avnet' s customer directs Avnet to ship products to a third party located in Washington, generally
the Avnet customer' s own customer. Nothing in the record indicates that Avnet' s Redmond
office participated in soliciting or filling orders, investigating customer credit, or providing
technical support to the end users in the specific sales at issue in this appeal.
After an unsuccessful administrative appeal, Avnet paid the contested amount under
protest and filed this action in Thurston County Superior Court. Both parties moved for
summary judgment. After hearing argument, the trial court granted Avnet' s motion and denied
the Department' s as to the drop- shipped sales, but granted the Department' s motion and denied
Avnet' s as to the national sales. The Department appeals and Avnet cross -appeals.
ANALYSIS
I. STANDARD OF REVIEW
An appellate court reviews a grant of summary judgment de novo and performs the same
inquiry as the trial court. Macias v. Saberhagen Holdings, Inc., 175 Wash. 2d 402, 407 -08, 282
P.3d 1069 ( 2012). A party moving for summary judgment bears the burden of demonstrating
that there is no genuine issue of material fact. Atherton Condo. Apartment -Owners Ass 'n Bd. of
Dirs. v. Blume Dev. Co., 115 Wash. 2d 506, 516, 799 P.2d 250 ( 1990). A court should grant
summary judgment only if "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
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No. 45108 -5 -II
any material fact and that the moving party is entitled to a judgment as a matter of law." CR
56( c).
The meaning of a statute is a question of law we also review de novo. Dep 't ofEcology
v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9, 43 P.3d 4 ( 2002). The " fundamental objective" of
statutory interpretation " is to ascertain and carry out the Legislature' s intent." Campbell &
Gwinn, 146 Wash. 2d at 9 -10. Where a " statute' s meaning is plain on its face, then the court must
give effect to that plain meaning as an expression of legislative intent." Campbell & Gwinn, 146
Wash. 2d at 9 -10. Such plain meaning " is discerned from all that the Legislature has said in the
statute and related statutes which disclose legislative intent about the provision in question."
Campbell & Gwinn, 146 Wash. 2d at 11 - 12. If "the statute remains susceptible to more than one
reasonable meaning" after such inquiry, it is ambiguous and we must " resort to aids to
construction, including legislative history." Campbell & Gwinn, 146 Wash. 2d at 12.
The rules of statutory construction also apply to the interpretation of administrative
regulations adopted pursuant to statutory authority. Cannon v. Dep 't ofLicensing, 147 Wash. 2d
41, 56, 50 P.3d 627 ( 2002). In this context, appellate courts " interpret[] a WAC provision to
ascertain and give effect to its underlying policy and intent." Cannon, 147 Wash. 2d at 56. " Rules
and regulations are to be given a rational, sensible interpretation," and courts will not consider
them " ambiguous simply because different interpretations are conceivable." Cannon, 147 Wash. 2d
at 56 -57. As with statutes, courts do not generally apply canons of construction to unambiguous
administrative regulations. Cannon, 147 Wash. 2d at 57. Courts should, however, " avoid a literal
reading of a provision if it would result in unlikely, absurd, or strained consequences." Cannon,
147 Wash. 2d at 57.
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No. 45108 -5 - II
When its meaning is in doubt, a tax statute ` must be construed most strongly against the
taxing power and in favor of the taxpayer.' Lamtec Corp. v. Dep' t ofRevenue, 170 Wash. 2d 838,
842 -43, 246 P.3d 788 ( 2011) ( quoting Ski Acres, Inc. v. Kittitas County, 118 Wash. 2d 852, 857,
827 P.2d 1000 ( 1992)). Courts presume, however, that taxes are valid. Lamtec, 170 Wash. 2d at
843. A party challenging the imposition of a tax thus bears the burden of proving that some
exemption applies. Lamtec, 170 Wash. 2d at 843; RCW 82. 32. 180. Where a court finds ambiguity
in a provision providing for a tax exemption or deduction, the court must strictly construe the
provision against the taxpayer. Simpson Inv. Co. v. Dep' t ofRevenue, 141 Wash. 2d 139, 149 -50, 3
P.3d 741 ( 2000).
II. THE DEPARTMENT' S APPEAL
We begin with the Department' s appeal, which challenges the trial court' s grant of
summary judgment to Avnet as to the drop- shipped sales. The Department argues that under
applicable statutes and regulations the drop- shipped sales are subject to the B & O tax. Avnet
contends that the trial court correctly ruled that the B & O tax does not apply to its Washington -
bound drop -shipped sales because Avnet did not receive the goods in Washington within the
meaning of the Department' s own regulations.3 The Department is correct.
A. The B & O Statute and Implementing Regulations
Washington imposes the B & O tax " for the act or privilege of engaging in business
4
activities" in the state. Former RCW 82. 04.220 ( 1961); Lamtec, 170 Wash. 2d at 843. The statute
3 As an alternative basis, Avnet argues that the trial court was correct in granting summary
judgment, because the drop- shipped sales lacked the required constitutional nexus with
Washington. In part III.below, we conclude that constitutional nexus is present for both
categories of sales.
4 The legislature amended this provision in 2010, but the audit period here at issue predates
that amendment.
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No. 45108 -5 -II
requires " every person that has a substantial nexus with this state "5 and who conducts activities
here " with the object of gain, benefit, or advantage to the taxpayer or to another person or class,
directly or indirectly" to pay a percentage of the gross receipts of any resulting proceeds. Former
RCW 82. 04.220; RCW 82. 04. 140; Lamtec, 170 Wash. 2d at 843.
For wholesale sales, the statute imposes "[ u] pon every person engaging within this state
in the business of making sales at wholesale" a B & O tax " equal to the gross proceeds of sales of
such business multiplied by the rate of 0. 484 percent." RCW 82. 04.270. The statute defines
s] ale" as " any transfer of the ownership of title to, or possession of property for a valuable
consideration." RCW 82. 04. 040( 1). In interpreting this statute, our Supreme Court has held that
the legislature intended to impose the business and occupation tax upon virtually all business
activities carried on within the state,' and to ` leave practically no business and commerce free of
tax. "' Simpson, 141 Wash. 2d at 149 ( alteration in original) ( quoting Time Oil Co. v. State, 79
Wash. 2d 143, 146, 483 P.2d 628 ( 1971) and Budget Rent -A -Car of Wash. -Or., Inc. v. Dep' t of
Revenue, 81 Wash. 2d 171, 175, 500 P.2d 764 ( 1972)).
In the drop- shipped sales, Avnet did not deliver the products to its own buyer outside
Washington. Instead, it delivered the products to its buyer' s customer in this state. Thus, the
only transfer of possession of property to any buyer occurred within the State of Washington.
Under the terms of RCW 82. 04. 040 and . 270, read consistently with the interpretive principles
noted above, this brought the drop- shipped sales within the reach of the B & O tax.
5 Avnet concedes that its activities here give it substantial nexus with Washington, which the
statute defines broadly. RCW 82. 04. 067.
No. 45108 -5 -II
This conclusion is supported by WAC 458 -20 -103 ( WAC Rule 103), 6 which defines
when a' sale takes place in Washington for tax purposes:
f]or the purpose ofdetermining [ B & O] tax liability of persons selling tangible
personal property, a sale takes place in this state when the goods sold are delivered
to the buyer in this state, irrespective of whether title to the goods passes to the
buyer at a point within or without this state.
Again, Avnet did not deliver the products to its own buyer outside Washington. Instead, it
delivered the products to its buyer' s customer in this state. Thus, the only delivery to any buyer
that occurred was within the state of Washington. Under both the definitions of "sale" in RCW
82. 04. 040' s and WAC Rule 103' s criteria for determining when a sale takes place in this state,
the drop shipped sales took place in Washington. Therefore, RCW 82. 04.270 and WAC Rule
103 by their terms subject the proceeds of these sales to the wholesale B & O tax.
Avnet argues to the contrary from WAC 458 -20- 193( 7) ( WAC Rule 193( 7)), which
provides:
Washington does not assert B & O tax on sales of goods which originate outside this
state unless the goods are received by the purchaser in this state and the seller has
nexus. There must be both the receipt of the goods in Washington by the purchaser
and the seller must have nexus for the B & O tax to apply to a particular sale. The
B &O tax will not apply if one of these elements is missing.
WAC Rule 193( 2)( d) specifies also that "` [ r] eceipt' or ` received' means the purchaser or its
agent first either taking physical possession of the goods or having dominion and control over
them." Avnet contends that, regardless of its nexus with Washington, the wholesale B & O tax
does not apply to the drop- shipped sales because Avnet' s customer, the wholesale buyer, did not
take physical possession of or exercise dominion and control over the goods in Washington; only
the retail customer, Avnet' s buyer' s customer, received the goods within the meaning of the rule.
6 The relevant portions of the rules at issue have not changed since the audit period. We
therefore cite the current version.
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No. 45108 -5 - II
Avnet' s argument relies on one of the specific examples given in WAC Rule 193( 11)( h):
Company X is located in Ohio and has no office, employees, or other agents located
in Washington or any other contact which would create nexus. Company X
receives by mail an order from Company Y for parts which are to be shipped to a
Washington location. Company X purchases the parts from Company Z who is
located in Washington and requests that the parts be drop shipped to Company Y.
Since Company X has no nexus in Washington, Company X is not subject to B & O
tax or required to collect retail sales tax. Company X has not taken possession or
dominion or control over the parts in Washington.
Avnet asserts that this example " specifically addresses" the type of transaction at issue here,
positing itself as " Company Z," its buyer as " Company X," and its buyer' s customer as
Company Y." Br. of Resp' t /Cross Appellant at 8 -10. Because the example states that
Company X has not taken possession or dominion or control over the parts in Washington,"
WAC Rule 193( 11)( h), Avnet argues that its buyers do not receive the goods within the meaning
of WAC Rule 193( 7), and the wholesale B & O tax therefore does not apply to those transactions.
This example, however, is not as apt as Avnet contends. First, it addresses the tax
liability not of Avnet ( Company Z), but of Avnet' s buyer ( Company X), a matter not at issue in
this appeal. Second, the fact that Avnet' s immediate customer ( Company X) did not take
possession of the products in Washington is not determinative. As noted above, the only buyer
who took possession or delivery did so from Avnet and in Washington. Under RCW 82. 04.270
and WAC Rule 193, that locates the sale in this state.
7 Avnet points to a number of e -mails and internal memoranda, obtained from the Department
through discovery, concerning proposed amendments to the rule, which documents Avnet asserts
show that the Department itself recognized that WAC Rule 193 as written precludes application
of the B & O
tax to these transactions. At most, these documents show a concern among certain
department staff that parties would rely on the disputed language in WAC Rule 193 to make the
argument that Avnet makes here. Because such arguments apparently ran counter to the
Department' s position, the staff members suggested clarifying the rule to preclude parties from
making them. Regardless, Avnet points to no authority suggesting that an agency' s internal
debates concerning possible amendments to a rule bear on a court' s interpretation of the rule.
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No. 45108 -5 -II
Avnet' s approach also elevates form over substance in a way similar to that rejected by
the court in Chicago Bridge & Iron Company v. Department ofRevenue, 98 Wash. 2d 814, 824,
659 P.2d 463 ( 1983):
Chicago Bridge & Iron] argues rigorously that it is immune from the B &
O tax because the contract " procurement" activities occurred outside Washington,
thus leading to the conclusion that no " sales" activities occurred in state. Such an
argument ignores the practicalities of modern business practice. As many
corporations engage in business and maintain branch offices in numerous foreign
jurisdictions, it is not surprising that contracts are negotiated and signed at locations
other than the jurisdiction for which the product is intended. Corporate
convenience, however, is not controlling in the context of the incidence of a tax.
Were it otherwise, substantial taxes could be avoided simply by consummating all
contracts outside the borders of the taxing state.
Internal citations omitted.) As in Chicago Bridge & Iron, corporate convenience in negotiating
or contracting out of state cannot distract from the central facts establishing the location of sale:
where the buyer took delivery and possession.
B. Legal Effect of WAC Rule 193
A more profound infirmity in Avnet' s argument, though, lies in the nature of WAC Rule
193 itself. " An `interpretive rule' is a rule, the violation of which does not subject a person to a
penalty or sanction, that sets forth the agency' s interpretation of statutory provisions it
administers." RCW 34. 05. 328( 5)( c)( ii). WAC Rule 193 does not impose any sanction for
noncompliance with its terms: it merely explains the Department' s view of when a party must
pay the tax. Thus, WAC Rule 193 is an " interpretive" rule. See also Ass 'n of Wash. Bus. v.
Dep' t of Revenue, 155 Wash. 2d 430, 446 -47, 120 P.3d 46 ( 2005) ( discussing the difference
between legislative and interpretive agency regulations).
Interpretative rules do not constrain the courts. Our Supreme Court held in Ass 'n of
Wash. Bus., 155 Wash. 2d at 447 ( emphasis omitted) that interpretive rules
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No. 45108 -5 -II
are not binding on the courts and are afforded no deference other than the power of
persuasion. Accuracy and logic are the only clout interpretive rules wield. If the
public violates an interpretive rule that accurately reflects the underlying statute,
the public may be sanctioned and punished, not by authority of the rule, but by
authority of the statute. This is the nature of interpretive rules.
More specifically, in Coast Pacific Trading, Inc. v. Department ofRevenue, 105 Wash. 2d 912,
917 -18, 719 P.2d 541 ( 1986), our Supreme Court rejected an argument, similar to Avnet' s, that
the related rule governing international transactions, WAC 458- 20 -193C, exempted more sales
from the B & O tax than the statute or the constitution required. Because the statute clearly aimed
to tax imports and exports to the fullest extent constitutionally permissible, the Coast Pacific
Trading court held that the language of the rule could not provide a broader exemption than the
constitution required:
The Department of Revenue cannot use Rule 193C to expand the tax
immunity of exporters beyond the exemptions provided by statute or required by
the constitution. The Legislature has allocated to the Department the authority only
to establish procedural rules. The Department cannot contradict a substantive
legislative enactment by administrative regulation.
105 Wash. 2d at 917 ( footnote omitted). More recently, we rejected an argument almost
indistinguishable from Avnet' s that a different example from WAC Rule 193( 11) provided a
broader exemption than the B & O statute or the dormant commerce clause8 required. Space Age
Fuels, Inc. v. State, 178 Wn. App. 756, 764 -65, 315 P.3d 604 ( 2013), review denied, 180 Wash. 2d
1010 ( 2014). Under our case law, WAC Rule 193 is an interpretive rule that cannot subtract
from the force of the statute or WAC Rule 103, discussed above.
8 From the federal constitution' s grant to Congress of authority to regulate interstate commerce,
the United States Supreme Court has implied a " dormant Commerce Clause," which prohibits
certain state taxation even when Congress has failed to legislate on the subject." Oklahoma Tax
Comm' n v. Jefferson Lines, Inc., 514 U.S. 175, 179, 115 S. Ct. 1331, 131 L. Ed. 2d 261 ( 1995).
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No. 45108 -5 -II
No specific statutory exemption applies to the sales at issue here. Avnet instead relies
entirely on its constitutional nexus argument, addressed below, and the plain language of WAC
Rule 193. Under the precedents just discussed, however, the language of the rule can provide
Avnet no more haven than the B & O statute does. As discussed, the B & O statute aims to tax
interstate commerce almost as far as the dormant commerce clause permits: absent a specific
statutory exemption, every party with the requisite nexus to Washington must pay it on every
transaction occurring here. Former RCW 82. 04. 220; RCW 82.04. 040, . 140; Coast Pac. Trading,
105 Wash. 2d at 917 -18. Avnet' s argument that the State may not tax the sales because Avnet' s
customer did not receive the goods in Washington under WAC Rule 193 must fail.
As the analysis above shows, under RCW 82. 04. 040, . 270 and WAC Rule 103, Avnet' s
proceeds from the drop- shipped sales are subject to the wholesale B & O tax. Neither the terms
nor the legal status of WAC Rule 193 call that conclusion into question.
III. AVNET' S CROSS- APPEAL
A. WAC Rule 193
Avnet cross -appeals the order on summary judgment ruling that its national sales are
subject to the B & O tax. Avnet first contends that its national sales are exempt under a regulation
that purports to exclude from taxation sales "' not significantly associated in any way with ' the
taxpayer' s activities in Washington.9 Br. of Resp' t/Cross- Appellant at 17 -20. This argument
relies on WAC Rule 193( 7)( c), which warns that
a seller [ who] carries on significant activity in this state and conducts no other
business in the state except the business of making sales ... has the distinct burden
of establishing that the instate activities are not significantly associated in any way
with the sales into this state.
9 Avnet advances the same argument as an alternative basis for affirming the summary judgment
in its favor regarding its drop -shipped sales. We reject it for the reasons here articulated.
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No. 45108 -5 -II .
The rule goes on to give a nonexclusive list of circumstances that would establish that the B & O
tax applies to certain sales. WAC Rule 193( 7)( c)( i) -(vi). Avnet maintains that, with respect to
the disputed sales, its Redmond office engages in none of the activities described, and that its
instate activities are [ thus] not significantly associated in any way with the sales" at issue. Br.
of Resp' t /Cross Appellant 19 ( quoting WAC Rule 193( 7)( c)).
From this, Avnet argues that even if the dormant commerce clause does not exempt the
disputed sales from the B & O tax, the plain language of WAC Rule 193 does. This argument
fails because, as shown above, the language of this interpretive rule can provide Avnet no more
haven than the B & O statute does, and the statute, subject to any express exemptions, aims to tax
all sales that the commerce clause allows the State to reach. Coast Pac. Trading, 105 Wash. 2d at
917 -18. Avnet' s claims of exemption must therefore succeed or fail on the merits of its
constitutional arguments, to which we now turn.
B. Constitutional Limits on the State' s Taxing Power
A tax on an out -of -state corporation must satisfy both the requirements of the Fourteenth
Amendment' s due process clause and the commerce clause. Quill Corp. v. North Dakota, 504
U.S. 298, 305, 112 S. Ct. 1904, 119 L. Ed. 2d 91 ( 1992). Due process requires only sufficient
contacts between the corporation and the taxing state such that imposing the tax " does not offend
traditional notions of fair play and substantial justice. "' Int' l Shoe Co. v. Washington Office of
Unemployment Comp. & Placement, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 ( 1945)
quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 85 L. Ed. 278 ( 1940)). Avnet does
not expressly argue that the tax at issue offends due process, basing its argument instead on the
commerce clause.
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No. 45108 -5 -II
The limits imposed by courts under the dormant commerce clause have changed
significantly over time. See Oklahoma Tax Comm' n v. Jefferson Lines, Inc., 514 U.S. 175, 179-
84, 115 S. Ct. 1331, 131 L. Ed. 2d 261 ( 1995) and Complete Auto Transit, Inc. v. Brady, 430
U.S. 274, 279 -88, 97 S. Ct. 1076, 51 L. Ed. 2d 326 ( 1977). Modern dormant commerce clause
jurisprudence requires only that a state tax imposed on an out -of -state corporation ( 1) be " applied
to an activity with a substantial nexus with the taxing State," ( 2) be " fairly apportioned," ( 3) be
nondiscriminatory with respect to interstate commerce, and ( 4) be " fairly related to the services
provided by the State." Complete Auto Transit, 430 U.S. at 279. The parties' dispute focuses on
the substantial nexus requirement. Our Supreme Court has held that, to establish such nexus, the
instate activities of an out -of -state company " must be substantial and must be associated with the
company' s ability to establish and maintain the company' s market within the state." Lamtec,
170 Wash. 2d at 851.
C. Transactional Nexus and Dissociation
Avnet concedes that it has " taxpayer ... nexus," or connections with Washington
sufficient for the state to constitutionally tax its interstate business activities here. Br. of
Resp' t /Cross -Appellant at 19. The parties' dispute centers on " transactional nexus "; specifically,
whether the dormant commerce clause allows Avnet to " dissociate" its Washington -bound
national and drop- shipped sales by showing that its instate personnel played no significant role in
those transactions. Br. of Appellant /Cross -Resp' t at 13 -27, 30 -46; Br. of Resp' t /Cross -Appellant
at 2 -9, 20 -28.
Avnet argues that " states may impose a tax on interstate sales only if there is a substantial
nexus between the seller' s activities and the state and those activities are significantly associated
with the sales at issue." Br. of Resp' t /Cross -Appellant at 16 ( citing Allied -Signal, Inc. v. Dir.,
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No. 45108 -5 -II
Div. of Taxation, 504 U.S. 768, 778, 112 S. Ct. 2251, 119 L. Ed. 2d 533 ( 1992)). However, the
authority Avnet cites for this proposition, Allied Signal,
- does not support it:
The principle that a State may not tax value earned outside its borders rests on the
fundamental requirement of both the Due Process and Commerce Clauses that there
be " some definite link, some minimum connection, between a state and the person,
property or transaction it seeks to tax." Miller Brothers Co., 347 U.S. at 344 -45.
The reason the Commerce. Clause includes this limit is self -evident: In a Union of
50 States, to permit each State to tax activities outside its borders would have drastic
consequences for the national economy, as businesses could be subjected to severe
multiple taxation. But the Due Process Clause also underlies our decisions in this
area. Although our modern due process jurisprudence rejects a rigid, formalistic
definition of minimum connection, we have not abandoned the requirement that, in
the case of a tax on an activity, there must be a connection to the activity itself,
rather than a connection only to the actor the State seeks to tax, see Quill Corp.,
504 U.S. at 306 -08.
Allied-Signal, 504 U.S. at 777 -78. This precedent shows that the taxing state must have a
sufficient connection both to the taxpayer and the activity taxed, but it does not impose a
requirement that the taxpayer' s activities creating the requisite connection to the taxing state
have some direct connection to the specific sales taxed.
Avnet contends, though, that Norton Company v. Department ofRevenue ofState of
Illinois, 340 U.S. 534, 71 S. Ct. 377, 95 L. Ed. 517 ( 1951) and B.F. Goodrich Company v. State,
38 Wash. 2d 663, 231 P.2d 325 ( 1951), control and do impose such a requirement. In Norton, a
Massachusetts company with a branch office in Chicago challenged Illinois' s imposition of a
gross receipts tax on all of its Illinois -bound sales. 340 U.S. at 535 -37. The Norton Court held
that, notwithstanding the presence of the Chicago office, Illinois could not tax transactions where
Illinois customers placed orders with Norton' s Massachusetts office, which office filled them
and delivered the goods directly to the buyer via common carrier. 340 U.S. at 539. These sales
were " so clearly interstate in character that the State could not reasonably attribute their proceeds
to the local business." Norton 340 U.S. at 539.
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No. 45108 -5 -I1
Our Supreme Court followed Norton in B.F. Goodrich, 38 Wash. 2d at 673 -76, where a
New York corporation that conducted extensive sales activities in Washington challenged B &O
tax assessments on various types of transactions, including sales of goods delivered to J. C.
Penny stores in Washington. B. F. Goodrich' s New York office received the orders directly and
shipped the goods from outside Washington, without the Washington sales force' s direct
participation. B.F. Goodrich, 38 Wash. 2d at 666. Following Norton, the court held that the
dormant commerce clause prohibited Washington from taxing these sales. B.F. Goodrich, 38
Wash. 2d at 674.
The Department does not dispute that this case involves facts " substantially similar" to
those in Norton and Goodrich, and concedes that those cases have not been expressly overruled.
Reply Br. of Appellant /Cross -Resp' t at 5. Instead, it argues that subsequent dormant commerce
clause precedents " have greatly expanded the scope of activities deemed relevant in determining
whether an interstate sale is ` dissociated' from a taxpayer' s business activities in the taxing
state," and that these more recent precedents demonstrate that Avnet' s activities in Washington
create sufficient nexus for taxation of all its Washington -bound sales. Reply Br. of
Appellant /Cross =Resp' t at 5 - 13 ( citing Tyler Pipe Indus., Inc. v. Wash. Dep' t ofRevenue, 483
U.S. 232, 107 S. Ct. 2810, 97 L. Ed. 2d 199 ( 1987); Standard Pressed Steel Co. v. Wash. Dep' t
of Revenue, 419 U.S. 560, 95 S. Ct. 706, 42 L. Ed. 2d 719 ( 1975); Gen. Motors Corp. v.
Washington, 377 U.S. 436, 84 S. Ct. 1564, 12 L. Ed. 2d 430 ( 1964)).
As an initial matter, we note that Norton' s foundations have been eroded by subsequent
precedent. For example, the Norton Court based its conclusion in part on a then -prevailing view
that
w]here a corporation chooses to stay at home in all respects except to send
abroad advertising or drummers to solicit orders which are sent directly to the home
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No. 45108 -5 -II
office for acceptance, filling, and delivery back to the buyer, it is obvious that the
State of the buyer has no local grip on the seller.
340 U.S. at 537. The Court has long since rejected that view. Scripto, Inc. v. Carson, 362 U.S.
207, 210 -13, 80 S. Ct. 619, 4 L. Ed. 2d 660 ( 1960). The Norton Court' s reasoning also relied on
the " immunity" from state taxation that interstate commerce then enjoyed. Norton, 340 U.S. at
538. The Court soundly rejected this immunity in Complete Auto Transit, expressly overruling
precedents to the contrary. 430 U.S. at 288 -89. Thus, the United States Supreme Court has
explicitly removed at least two of Norton' s chief doctrinal underpinnings.
More to the point, the Department is correct that subsequent precedents have expanded
the range of activities relevant to the substantial nexus analysis. In General Motors, the
company challenged imposition of the B & O tax on various transactions, including sales of parts
to independent dealers in Washington, which orders were placed with and filled from its
Portland, Oregon office. 377 U.S. 443 -46. The General Motors Court declined to look at
particular transactions in isolation, instead considering whether General Motors could show that
the bundle of corporate activity" in Washington was not a " decisive factor[] in establishing and
holding" the market for its goods here, and concluding that it could not. Gen. Motors Corp., 377
U.S. at 447 -48.
In Tyler Pipe Industries, the Court found sufficient nexus for imposition of B & O tax on
all of Tyler Pipe' s sales into Washington even though it
maintains no office, owns no property, and has no employees residing in the State
and i] ts solicitation of business in Washington is directed by executives who
maintain their offices out -of -state and by an independent contractor located in
Seattle.
483 U.S. at 249, 251. The Court agreed with our Supreme Court that ' the crucial factor
governing nexus is whether the activities performed in this state on behalf of the taxpayer are
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significantly associated with the taxpayer' s ability to establish and maintain a market in this state
for the sales. "' Tyler Pipe, 483 U.S. at 250 ( quoting Tyler Pipe Indus., Inc. v. Dep' t ofRevenue,
105 Wash. 2d 318, 323, 715 P.2d 123 ( 1986)). Significantly, in the portion of its opinion affirmed
by the United States Supreme Court, our Supreme Court rejected an argument very similar to
Avnet' s, that the portion of Tyler Pipe' s sales attributable to orders placed directly with its main
office were exempt from tax. Tyler Pipe, 105 Wash. 2d at 326 -27; Tyler Pipe, 483 U.S. at 250 -51.
These precedents show a progressive broadening of the types of activities that may
establish substantial nexus for purposes of state taxation of interstate commerce. They show that
a state need not demonstrate a direct connection between a taxpayer' s nexus -creating activities
and particular sales into the state in order to tax those sales.'°
D. Avnet' s Washington Activities and Its Market for the Taxed Sales
Although United States Supreme Court precedent does not require a direct connection
between Avnet' s activities in Washington and these specific sales, it does require some
connection to sustain application of the B & O tax. To find that connection, both General Motors,
377 U.S. at 447 -48, and Tyler Pipe, 483 U.S. at 250 -51; looked to whether the taxpayer' s instate
activities were significant in establishing and maintaining a market for its goods in the state. The
Tyler Pipe Court quoted with approval our Supreme Court' s description of some of the activities,
other than building or maintaining direct relationships with customers, held to give rise to
sufficient nexus there:
1° Avnet further asserts that delivery by common carrier into the taxing state does not qualify as
in -state activity for purposes of substantial nexus. This argument relies on Quill Corporation,
504 U.S. 298, which upheld on stare decisis grounds a rule that states may not impose a use tax
collection duty on out -of -state sellers whose only contact with the taxing state is by mail and
common carrier. The Quill Court, however, limited its holding to sales and use taxes, 504 U.S.
at 314 -15, robbing it of precedential force in this appeal.
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No. 45108 -5 -II
Tyler Pipe sells in a very competitive market in Washington. The sales
representatives provide Tyler Pipe with virtually all their information regarding the
Washington market, including: product performance; competing products; pricing,
market conditions and trends; existing and upcoming construction products; ... and
other critical information of a local nature concerning Tyler Pipe' s Washington
market.
483 U.S. at 249 -50 ( quoting Tyler Pipe, 105 Wash. 2d at 325).
The taxpayer carries a heavy burden in showing the absence of such a connection. In
American Oil Company v. Neill, 380 U.S. 451, 458, 85 S. Ct. 1130, 14 L. Ed. 2d 1 ( 1965), the
Court described the burden as follows:
when a corporation, pursuant to permission given, enters a State and proceeds to do
local business the ` link' is strong. In such instances there is a strong inference that
it exists between the State and transactions which result in economic benefits
obtained from a source within the State' s territorial limits. The corporation can,
however, exempt itself by a clear showing that there are no in -state activities
connected with out -of -
state sales.
Employees at Avnet' s Redmond office concededly engaged in a wide variety of market
research and product development activities aimed at building and maintaining the company' s
worldwide market. Those activities included the servicing of new and existing accounts by
account managers and sales and marketing managers and representatives, the development and
implementation of marketing programs, the recruiting of new customers, and extensive
engineering support. Avnet' s marketing materials give the contact information for the Redmond
office. These activities all served the creation and maintenance of Avnet' s market in
Washington, as well as other locations. These activities lie at the .core of the market sustenance
which both General Motors Corporation, 377 U.S. at 447 -48, and Tyler Pipe, 483 U.S. at 250-
51, found sufficient for constitutional nexus. That nexus is present for both Avnet' s national
sales and drop- shipped sales into Washington.
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No. 45108 -5 -II
CONCLUSION
Under the uncontroverted facts and governing legal standards, both Avnet' s national sales
and drop- shipped sales here at issue are subject to Washington' s B & O tax. We affirm the trial
court' s grant of summary judgment to the Department as to Avnet' s Washington -bound national
sales. As to the drop- shipped sales, we reverse the grant of summary judgment to Avnet and
remand for entry of judgment in favor of the Department. We otherwise affirm.
A,c.r.
We concur:
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