By Zack Atkins and Eric Coffill

The Alabama Tax Tribunal concluded that an out-of-state retailer was required to collect and remit use tax on the sales of books and educational materials to in-state teachers and students, and that neither the Due Process Clause nor the Commerce Clause impeded the Alabama Department of Revenue’s authority to assess the seller for uncollected tax. The retailer relied on in-state teachers to collect orders and money from students and others and then distribute the purchased items to the appropriate people. The tribunal found that the retailer had a physical presence in Alabama, and thus Commerce Clause nexus with the state, by virtue of the in-state presence and activities of the teachers. The retailer, Scholastic Book Clubs, Inc., has litigated the same issue in a number of jurisdictions, and the tribunal’s decision puts Alabama in line with Connecticut, California, Kansas and Tennessee, and at odds with Michigan, Arkansas and Ohio. Scholastic Book Clubs, Inc. v. Ala. Dep’t of Revenue, No. 14-374 (Ala. Tax Trib. Mar. 25, 2016).