By Mary Alexander and Andrew Appleby

The New York State Department of Taxation and Finance determined that a women’s apparel company’s “inspirational shopping” trips were not sufficient to be considered “doing business” in the state for corporate franchise tax purposes. Petitioner was a traditional remote seller headquartered outside of New York. Petitioner’s employees occasionally traveled to New York for two to three days to meet with potential merchandise vendors and to go on “inspirational shopping” trips, but Petitioner did not have any sales representatives promoting or soliciting sales in the state. As of May 31, 2008, Petitioner had also terminated its online web affiliate linking program with New York-based web affiliates. Although a “close question,” the Department concluded that, pursuant to Section 1-3.2 of the Business Corporation Franchise Tax Regulations, Petitioner’s occasional trips did not rise to the level of “doing business” in the state. However, the Department noted that if Petitioner was engaged in solicitation activity protected by Public Law 86-272, as well as the occasional trips, then Petitioner would be considered to be “doing business” in New York. N.Y. Adv. Op. TSB-A-13(6)C (Apr. 11, 2013).