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administrative action.” However, the customers by either electronic chat
statement notes that “[o]ther states may Congress has never or email that customers initiate by
adopt or otherwise indicate support for clicking an icon on the business’s
individual sections of this Statement.” amended or updated website;
Regarding the purpose of the state- P.L. 86-272 to ■ The business solicits and receives
ment, the introduction provides that the online applications for its branded
“contents of this Statement are intended address how it credit card via its website;
to serve as general guidance to taxpayers should be applied ■ The business’s website invites viewers
and to provide notice as to how Sup- to modern business in a customer’s state to apply for
porting States will apply the statute.” nonsales positions with the business;
The MTC revised its statement in 1993, transactions. ■ The business places internet cookies
1994, and 2001. As the economy evolved onto the computers or other elec-
over the past few decades, the lack of tronic devices of in-state customers;
additional guidance made it more dif- property via the internet is protected the cookies gather customer search
ficult for companies expanding into new under P.L. 86-272 requires the same information that will be used to
lines of business to determine how the general analysis that is applied to per- adjust production schedules and
P.L. 86-272 safe harbor and the MTC’s sons that sell tangible personal property inventory amounts, develop new
interpretive statement might apply by other means. As a general rule, when products, or identify new items to
to them. a business interacts with a customer offer for sale;
Shortly after the U.S. Supreme via the business’s website or app, it is ■ The business remotely fixes or
Court decided South Dakota v. Wayfair, engaged in “business activity” within the upgrades products previously
Inc., 138 S. Ct. 2080 (2018), the MTC customer’s state, meaning that the activi- purchased by in-state customers by
decided that the emphasis on taxpayer ties extend beyond the pure solicitation transmitting code or other electronic
protection under P.L. 86-272, coupled of orders for sales of tangible personal instructions to those products over
with the growing popularity of more property, thereby exceeding P.L. 86-272 the internet;
technology-dependent business models, protection. Alternatively, if the website ■ The business offers and sells ex-
required revisions to its historic State- merely presents static text or photos, tended warranty plans on its website
ment of Information regarding the appli- there is no engagement or facilitation to in-state customers who purchase
cation of P.L. 86-272. Following several within the customer’s state. the business’s products;
hearings, the MTC adopted and released The new section of the MTC’s ■ The business contracts with a mar-
a revised statement in August 2021, revised statement provides a list of ketplace facilitator that facilitates the
including a new subsection address- examples of 11 activities conducted sale of the business’s products on the
ing what constitutes protected versus by internet businesses and provides facilitator’s online marketplace and
unprotected activities and analyzing the a conclusion as to whether each ex- the marketplace facilitator maintains
treatment of certain internet-facilitated ample is protected (or not protected) some of the business’s inventory in
transactions. The revised statement by P.L. 86-272. At the beginning of the fulfillment centers in states where the
adopts the Supreme Court’s analysis in examples, the statement clarifies the business’s customers are located; and
Wayfair concerning virtual contacts as underlying assumption that the busi- ■ The business contracts with in-state
“relevant to the question of whether a ness only sells items of tangible personal customers to stream videos and music
seller is engaged in business activities in property, unless otherwise indicated. to electronic devices for a charge.
states where its customers are located” The examples presume that customer The following three types of activities
for purposes of P.L. 86-272, even though orders are approved or rejected, and the are protected by P.L. 86-272:
the Court did not address P.L. 86-272 products are shipped, from outside the ■ The business provides assistance
in its decision. The development and customer’s state. Other than what is in- following a sale to in-state customers
issuance of this revised statement was an dicated in the examples, the business has by posting a list of static frequently
effort to encourage uniformity among no contacts with the customer’s state. asked questions with answers on its
states in applying P.L. 86-272 to inter- Under the examples, the following website;
net transactions. eight types of activities in a customer’s ■ The business places internet cookies
The MTC’s revised statement ex- state are not protected by P.L. 86-272: onto the computers or other devices
plains that the determination of whether ■ The business regularly provides as- of in-state customers, but the cookies
a person that sells tangible personal sistance following the sale to in-state gather information that is only used

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