Lance S. Jacobs, of counsel with Pepper Hamilton, was quoted in the July 25, 2018 Law360 article, "NH Lawmakers Spar, Nix Bill to Combat Wayfair Ruling."
Either way, by placing the bill on the scrap heap, Lance Jacobs of Pepper Hamilton LLP said New Hampshire likely averted numerous self-created legal headaches involving compliance with sales and use tax collection requests.
"It seemed to me that bill was a full-employment act for litigation," Jacobs said over the phone. "New Hampshire was trying to go through the back door when the Wayfair decision left the front door wide open."
Jacobs said that in light of the justices' ruling, trying to base a taxing argument on a business's physical presence is a now a dead issue.
"Two years ago before Wayfair, there was an argument that remote sales and use tax was unconstitutional. Now you have to make other constitutional arguments against it," he said. "You can't just legislate against it."
In drafting the bill, New Hampshire's lawmakers pitted their state's tax laws against those of others states. In reality, Jacobs said, the tax issue only served as a vehicle to raise concerns with the due process and commerce clauses of the U.S. Constitution.
"It's not a tax issue; it's a governance issue," he said. "States can enact and enforce their laws. By saying making remote sellers collect tax is unconstitutional, it's almost as if New Hampshire was trying to usurp South Dakota's sovereignty."