By Kathryn Pittman and Andrew Appleby
A Colorado state district court issued a preliminary injunction preventing the Colorado Department of Revenue from enforcing Colorado’s out-of-state seller use tax reporting statutes and related regulations. These rules require out-of-state sellers that do not collect Colorado sales tax to notify their Colorado purchasers—and the Department—of the amount of sales made to facilitate use tax reporting and collection. The court determined there was a reasonable probability that the plaintiff would succeed on the merits of its Commerce Clause challenge before the state court that the reporting requirements are facially discriminatory. This decision falls on the heels of a series of federal decisions involving the same reporting requirements. In 2010 and 2012, a federal district court issued first a preliminary injunction, and then a permanent injunction, respectively, against enforcing Colorado’s reporting requirements. On appeal, the U.S. Court of Appeals for the Tenth Circuit held that the federal district court had no jurisdiction to consider the injunctions because of the Tax Injunction Act. The Tenth Circuit then remanded the case to the federal district court to lift the injunction, which it did in December 2013. Soon after, the plaintiffs filed in state court asserting comparable causes of action. This is an important and groundbreaking case because it addresses the constitutional implications of reporting requirements for sellers without nexus with the taxing jurisdiction. Direct Marketing Assoc. v. Colorado Dep’t of Rev., Case No. 13CV34855 (Denver Dist. Ct. Feb. 18, 2014).