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sales and use tax filing requirements, Offers in compromise received and accepted
with every state that imposes a sales tax
The percentage of offers accepted fell from 40.3% in 2017 to 30.7% in 2021.
having enacted a rule similar to South
Dakota’s by the end of 2021.
As noted above, states have been
70,000
slower to enact factor-presence nexus
standards for income tax purposes, with
only a few additional states enacting 60,000
such rules in the years since the Wayfair
decision. However, as states become
50,000
more aggressive in asserting that income
tax nexus can exist based solely on eco-
nomic connections that do not require 40,000
a traditional physical presence, P.L.
86-272 continues to provide protection
for sellers of tangible personal property 30,000
even as businesses shift more of their
activities online.
20,000
STATEMENT OF INFORMATION 2021
UPDATES 10,000
On Aug. 4, 2021, the MTC adopted
revisions to its Statement of Information 0
regarding P.L. 86-272. The primary
2017 2018 2019 2020 2021
changes relate to Section IV, “Specific
Listing of Unprotected and Protected  Offers received  Offers accepted
Activities,” where a new Subsection C,
Source: IRS Data Book, Table 25 (2018–2021) and 16 (2017).
“Activities Conducted via the Internet,”
was added. Subsection C outlines the
MTC’s position that a business’s interac-
tion with its customers via the internet
is equivalent to its physically entering a page, would not alone constitute busi- that non-revenue-generating activity
state to interact with its customers. It is ness activity within a state. Example 2 conducted via the internet must also
then to be evaluated whether a business’s then provides that if post-sale assis- be considered.
activities via the internet are protected tance is provided in an active manner, Internet cookies: Examples 5 and
as sales solicitation of tangible personal using electronic chat or email, busi- 6 both concern internet cookies being
property (or services entirely ancillary ness activity may exceed P.L. 86-272 placed on customers’ computers by the
to sales solicitation of tangible personal protection within that state. Example 2 business. The nature of the function
property), with orders approved and further provides that, given the nature a cookie performs apparently deter-
fulfilled from out of state. of post-sale assistance described, such mines whether protection is afforded.
Subsection C provides 11 examples services would not be protected under In Example 5, a cookie that gathers
of fact patterns that the MTC views as P.L. 86-272 as sales solicitation or customer information for development
exceeding or not exceeding P.L. 86-272’s ancillary to sales solicitation. and marketing purposes is considered
protections. While a detailed review Job applications: Example 4 unprotected. In Example 6, however, a
of the considerations of each example extends the MTC’s view of business cookie that is used to help retain items
is beyond the scope of this article, of activity that is not protected under in an online shopping cart if the con-
particular note are the following: P.L. 86-272 to include enabling job nection is lost is considered protected
Post-sale assistance: Under applicants in a state to apply online. as ancillary to sales solicitation.
Example 1, a business’s providing post- Such activity is then not considered Remote maintenance and
sale assistance in a static manner on sales solicitation or ancillary to sales streaming: Example 7 provides that
its website, in this instance as an FAQ solicitation. This example demonstrates online maintenance upgrades create a

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