*3 JONES, J., Before EAGEN, C. O’BRIEN, ROBERTS, POMEROY, MANDERINO, NIX and JJ.
OPINION MANDERING, Justice.
This case presents the important question whether Pennsylvania’s Income Corporation Tax can validly be ap- which is in corporation engaged solely a foreign to
plied in this solicits business Common- commerce but interstate field representatives. use of through wealth not in United dispute. Appellant, are The relevant facts Jersey Corporation is a New en- Company, Tobacco States products. and sale tobacco Its in the manufacture gaged commerce, in in part interstate exclusively are sold products period For the time question, customers. Pennsylvania to Pennsylvania, no manufacturing plants no had appellant was inventory structures which or other warehouses state, maintained bank accounts in this no stored, no offices records, no meet- corporate and held corporate kept any nor ings Pennsylvania. ten through sole contact
Appellant’s These representatives.” representa- “missionary so-called cars, visit whole- tives, independent with company furnished promotions, activities and company them of salers inform products. orders for Orders take and sometime Greenwich, Connecticut for or approval are sent to obtained by shipment if are filled approved, rejection, and do not representatives Pennsylvania. outside point order, an have no accept agency authority have the adjust no or settle whatsoever, authority powers receivable, or otherwise handle claims, any accounts collect appellant. due money belonging visit various retail outlets. On also representatives Thesé carry samples prod- new visits, the representatives these *4 from wholesalers in purchased are samples ucts. These If a retailer agrees at wholesale price. the the pays representative the retailer samples, those purchase is on these inci- Hence, profit no realized same price. the also check retailer’s exist- sales. Representatives dental to determine if products tobacco of ing inventory displayed. rep- attractively are fresh products and sometimes displays give set counter up resentatives appellant’s products exchange samples retailers free The representatives counter space. for more extensive their activities. daily reports maintain These retailers order their products from directly who, turn, wholesalers independent send their own orders to appellant’s headquarters outside Pennsylvania. solicitation activities
Appellant’s were previously the sub- ject Commonwealth, in this litigation and it was deter- mined that its activities did not create a constitutional nexus, taxable Commonwealth v. United Co., States Tobacco Dauph. The matter at that time did not reach this Court.
Pursuant to Article V of the Tax
Reform Code of
as
amended, 72 P.S.
7501-7506 (Supp.1977-78), which impos-
§§
es on
corporations “carrying
activities” in Pennsylvania a
tax based on taxable income derived from sources in the
Commonwealth, the Commonwealth settled appellant’s Cor-
poration Income Tax for the year 1971 in the amount of
$70,878.52.
13, 1974,
On August
the Resettlement Board
denied
appellant’s petition
resettlement. The Board of
Finance and Review
sustained
subsequently
settlement,
as did the Commonwealth Court. United States TobaccoCo.
Commonwealth,
22 Pa.Cmwlth.
Throughout this entire litigation appellant has presented three issues for resolution. Appellant (1) claims that impos- ing Pennsylvania’s Corporation Income Tax against appel- lant, a foreign corporation engaged in the solely of orders for sale in commerce, interstate violates federal statutory law such exempting activity this kind of taxation; (2) state that because of appellant’s minimal con- tacts Pennsylvania, Pennsylvania’s Corporation Income Tax is unconstitutional applied as to appellant; (3) if appellant is subject tax, this state Pennsylvania’s “add back” of corporation tax, income after apportioning appel- lant’s income to Pennsylvania activities to determine appel- lant’s ultimate tax is liability, void for want of statutory authority, or alternatively, unconstitutional because it
130 than Pennsylvania of income can appellant’s taxes more reach. legally that federal law ex- agree appellant statutory
We Tax, it Pennsylvania’s Corporation Income empts the directing Commonwealth Court reverse order the tax. We therefore not address need appellant pay nor do constitutional we address arguments, (add computation back) to the of appellant’s issues relating Our intended liability. holding Congress ultimate tax from this tax cannot be exempt appellant forth some historical back- setting understood without ground.
A tax a constitutionally state can corporation commerce, in interstate whether the tax be engages solely tax, a corporation’s a tax on “going called “net income” a tax value,” privilege a on the of engaging concern Complete Auto Tran particular within a state. See business 274, 1076, 430 U.S. 97 L.Ed.2d 326 sit, Inc. S.Ct. 51 Brady, however, Clause, force, its own (1977). The Commerce a exact taxes from power some limitation state’s places A tax will held if the only be valid interstate concerns. aspect fair demand for that constitutionally state exacts a it a relation. E. special which bears interstate commerce 100, Co. v. 95 Traigle, Colonial U.S. S.Ct. g., Pipeline 1538, (1975). taxes which affect inter L.Ed.2d State must also be consonant with constitutional state commerce must A nexus exist between concepts process. of due for tax is within the state which the and activities tax exacted, the state “the whether [controlling] question it can ask return.” which Standard given anything has Revenue, 560, 562, Washington Dep’t Co. v. U.S. Steel 719, (1975), L.Ed.2d Wisconsin citing Co., 85 L.Ed. Penney v. J. C. 270-71 delineating decisions Supreme Court United States to tax interstate reflect power extent a state's commerce the interests of the several balancing between judicial com- revenue from activities interstate states deriving merce and the burdens imposed upon interstate corpora- *6 tion of that interest. by pursuit Increasingly recent the balance has been struck in favor of the states: if years, tax is particular fairly apportioned a and does not discrimi- commerce, interstate against Supreme nate Court has states to own permitted “pursue fiscal unem- policies, [their] barrassed Constitution.” Wisconsin v. J. C. Penney Co., 435, 444, 246, 249, 311 61 267, U.S. S.Ct. 85 L.Ed.
When a foreign corporation’s contacts within the state fall
level, however,
below a
minimal
certain
a state
not
may
exact a
constitutionally
tax on those activities. As early as
1887, the
Court held that
Supreme
an out-of-state business
(“drummers”)
could send
into
employees
another state to
sales,
solicit
and if no other
involved,
activities were
no
nexus was
taxable
established. Robbins v. Shelby County
Dist.,
489,
Taxing
592,
U.S.
S.Ct.
“Where a corporation chooses to stay at home in all except to send abroad respects advertising or drummers to solicit orders which are sent to the home directly office for acceptance, filling, back to the delivery it is buyer, obvious that the state of the has no buyer local on the grip seller. Unless some local incident occurs sufficient bring the transaction within taxing its power, vendor is not taxable.” Norton, its decision in
Eight years
however,
after
Court decided
Supreme
Northwestern States Portland Ce
Minnesota,
357,
ment Co. v.
358 U.S.
3 L.Ed.2d
(1959),
and denied certiorari
in Brown-Forman Distillers
Revenue,
Corp.
v. Collector
234 La.
order Northwestern cement when ordering from local whole- Brown-Forman, salers. In a decision which the Supreme disturb, Court refused to Supreme Court up- Louisiana. held a similar tax on a Kentucky corporation whose Louisi- ana activities were limited to the presence of “missionary men” who solicited wholesalers Kentucky and sometimes assisted those wholesalers in obtaining suitable displays of the products in the various retail establishments. These prompted decisions “serious apprehension in the commercial community” activity in another state limited to solicit- ing business would subject interstate concerns to multiple See state taxation. S.Rep.No. Sess., 86th Cong., 1st 2at (1959); HR No. Rep. Sess., 86th Cong., 1st at 1 (1959); 1959 U.S.Code Congressional and Administrative pp. News *7 2548-61. to Northwestern States and
Congress’s response Brown-Forman, and statute by relied appellant on 86-272, this was Pub.L. now appeal, codified at 15 U.S.C. statute, (1970). 381-384 By Congress sought §§ to allay the fear that “mere solicitation” subject would interstate See Heublein v. South businesses to multiple state taxation. Comm’n, Carolina Tax (1972).
L.Ed.2d The relevant portion of the statute 381(a), entitled “Imposition Tax,” of Net Income § which provides:
“Minimum standards State, No political thereof, or subdivision shall have for power impose, any taxable year after ending Sep- 14, 1959, tember a net income tax on the income derived within such State by any person from interstate commerce if the business only activities within such State or by behalf of such person such taxable during year either, are both, or of the following:
(1) the solicitation of orders by person, such or his in such representative, State for sales of tangible per- sonal which property, orders are sent outside the State and, or approval rejection, if approved, are filled by or shipment delivery point State; from a outside the such (2) the solicitation orders or by person, his representative, such State the name of or for the benefit of a prospective customer such if person, by orders such customer to such to enable such person to fill customer orders from such resulting solicitation (1).” are orders described in paragraph add- (Emphasis ed.) defines
Section 381 the lower limit of a state’s power. taxing If a foreign corporation covered presumptively by the Act orders, engages solely the solicitation of either solicit- ing orders for direct benefit of the foreign corporation (§ or 381(a)(1)) by soliciting orders indepen- which benefit an customer, wholesaler, dent or (§ 381(a)(2)), distributor or both, impose a state not on that may out-of-state business tax based on or any measured net income. U.S.C. If the interstate corporation is involved in solicitation, more than something a state may validly tax of the portion taxable income corporation’s attributable within the It is activity undisputed state. appellant status; meets other all the criteria for tax statutory exempt thus our decision turns on whether appellant’s activities in are something more solici- than tation. has
This Court never had occasion to construe Supreme opinion United States Court’s only addressed to *8 the statute is uninstructive on the proper interpretation of the Act. See Heublein v. “solicitation” as it in appears Comm’n, Tax South Carolina U.S. S.Ct. Heublein, L.Ed.2d 472 In the was taxpayer required to maintain a local the representative in in taxing state order comply to with state liquor regulations. This repre- sentative’s functions contacting included local retailers inform of new products. law, them South company Carolina however, required shipments of liquor into the state be sent representative, to this who then transferred the ship- ments to a local wholesaler. The Court did not have to reach of the issue whether the representative’s sales activi- view, ties were limited to In solicitation. its the shipment of and subsequent the transfer to a liquor representative, wholesaler, nor the local “was neither ‘solicitation’ of filling from a the shipment delivery point orders or outside ‘by 381.” 278-79, the at meaning within § State’ 486, 34 at 477. at L.Ed.2d states, no by from sister means uniform Opinions although in whether construction, helpful determining in are their to insulate state income taxes the Congress sought In the appellant. in most recent activity engaged by type 381, New to consider York appellate state court decision us, court, to the case before held that facts similar on exempt from a New York tax was foreign corporation to New York sales. Gil- income attributable measured Comm’n, Tax lette v.Co. State A.D.2d N.Y.S.2d Gillette had no (1977) (appeal pending, N.Y.Ct.Appeals). York, there, in New did no manufacturing of business place samples York save for carried inventory had New no state. salesmen, and all orders from outside the its filled here, its to a sold wholesaler products Like Gillette appellant activity its retail chains. The products who in turn sold went argued beyond Tax Commission which the representatives interaction between Gillette’s involved the and retailers: these retailer changes products tells the salesman
“[T]he will in the the retailer order hope new promotions and of . from the . . wholesaler. item promoted new display also reviews retailer’s of Gillette The salesman arranged are they attractively to insure products which the re- activity condition. It last saleable solicitation, than focuses as more spondent commission it than ‘merchandising’.” rather characterizing at 188. Id. at 478, 393 N.Y.S.2d short, retailers argued, advising The tax commission product more in order make techniques, on display consumer, actually was a post-sale to the ultimate attractive solicitation. was not hence activity the legislative history The court reviewed *9 and the various state court deci- statutory precise language, sions which construed law, have the federal including the Commonwealth opinion Court’s in the instant case. Finding the rationale offered Pennsylvania Commonwealth 480, to be Court id. at “unconvincing,” 190, 393 N.Y.S.2d at the court rejected the tax commission’sargument that Gil- lette was doing more than solicitation as envisioned by 381: it
“[Although possible is not to state a general rule solicitation from demarcating merchandising, certainly where, here, as the complaining owns no taxpayer real or personal property (except salesmen’s samples) the State sale, and makes no on its after repairs goods the purpose of P.L. 86-272 would be frustrated by the tax. permitting Advice to retailers on the act of displaying goods can public solicitation, e., be more hardly thoroughly i. context, an effort to induce purchase of Gillette products. Making evanescent distinctions which would be necessary justify imposition of the tax would, upon petitioner herein if indulged several states, tend to ‘Balkanize the American a result economy’, which it was Congress’s purpose prevent.” Id. at at 191. N.Y.S.2d Accord, ex rel. CIBA Products, State Pharmaceutical Inc. v. Comm’n, (Mo.1964) State Tax S.W.2d (granting tax immunity state where seller’s representatives customers, visit prospective explain seller’s products, and leave samples literature and of seller’s product, all in an effort to doctors to persuade write prescriptions seller’s State, Coors products); Porcelain Co. 183 Colo. (1973)
P.2d 838
(granting
where
immunity
seller’s represent
atives,
alia,
inter
demonstrated seller’s products, negotiated
customer prices, and were
supplied
company automo
biles).
also International
Cocreham,
See
Shoe Co. v.
246 La.
164 So.2d
cert. denied sub nom. Mouton v. Interna
Co.,
tional Shoe
136 Clairol, immunity cases 381 denying
Illustrative of
§
22,
213,
262
N.J.Super.
aff’d,
109
A.2d
57
Kingsley,
Inc. v.
199,
(1970),
A.2d 702
dismissed for want of a
N.J.
270
402
question,
federal
28
substantial
643
whose
(1971).
representatives,
primary
L.Ed.2d
Clairol’s
was
and
its
promote
public’spurchase
function
“to
use of
regular visits
retail
products,”
druggists, reviewing
made
and
arranging promotions,
suggesting optimum
displays,
products.
represent-
Clairol’s
Clairol’s
merchandise
ways
material, business forms and
promotion
atives also carried
occasion,
also took
of a
they
inventory
On
store’s
samples.
based
suggesting
of
orders
on their
products,
stock Clairol’s
Furthermore, Clairol
technicians in New
findings.
employed
its products.
its customers in how use
instruct
Jersey
technicians,
whether, without the
Clairol’s
deciding
Without
solicitation,
New Jersey Superior
went
beyond
activities
whole,
as
that taken
Clairol’s activities
Court concluded
as defined
381. See also
went
Miles
beyond
§
Revenue,
v.
of
274 Or.
Laboratories,
Department
Inc.
(1976)
immunity
where sales-
(denying
The text of 381 no indication of how or gives narrowly § “solicitation” should be construed when broadly assessing of set of circumstances. It is taxability any particular the whether factors such as the of presence sample not clear automobiles, solicitors with or furnishing supervision goods, are activities displays merely over or assistance inciden- statute, hence within the to “solicitation” and whether tal which, either or in independently are distinct activities they solicitation, including justi- with other activities conjunction tax. in the Law—Fed- Developments See fy imposition Business, Limitations on Taxation of Interstate eral State 953,1007-1010 aids, have (1962). We do several Harv.L.Rev. however, provided to the sister background by in addition decisions, us in this task. Of primary impor- state to assist is 381’s tance in the construction “solicitation” proper that for we cannot “it is essential history, forget legislative proper the words of a statute their context place that we Tidewater Oil Co. v. legislative history.” resort to the by 151, 157, States, L.Ed.2d United Report it that the Senate highly significant We think referred to the United specifically of 381 States support review, Brown-Forman, supra, Court’s refusal Supreme decision, which, Court’s on facts Supreme the Louisiana bar, the state’s to tax an upheld power to the case at similar See 86th 1st S.Rep.No. Cong., interstate corporation. 2; & Admin.News 2549: Sess., Cong. p. at U.S.Code commerce as in interstate are doubt engaged “Persons within a that will amount of local activities State be to the ‘nexus’, is, as a sufficient connec forming regarded of a tax tion, imposition with the on support State * * * . interstate operations net income from [There in the business community a general apprehension is] the mere through obtained sales within a State an out-of-State company orders within State within the would subject other activities State no having to the of an income company imposition the out-of-State earnings company ‘properly tax State apprehension apparent- This State. apportioned’ *12 Supreme of the Louisiana by decision ly strengthened case, which the U. S. in the Brown-Forman Su- Court There the activities of refused to review. Court preme within the State were limited apparently the corporation men’ solicita- ‘missionary engaged presence to tion.” Brown-Forman, corporation’s “missionary the foreign
In
not
men,”
representatives,
only sought
like appellant’s
but
company’s products,
for the
also
initial orders
procure
counter
obtaining optimum
displays
involved in
were
653, 101
at 70. When
234 La. at
So.2d
those products.
an
“solicitation”
legislation exempting
enacts
Congress
tax,
a state’s net income
and
corporation
interstate
in-
a case where the “solicitation”
response
does so
139
to the initial contact between
incidental
activity
volved
bound to
we as state courts are
buyer,
prospective
seller and
even
their
immunity
though
foreign corporations
give
incidental
to the initial
in activities
engage
representatives
seller. The
is one of
question
buyer
between
contact
however, constrains us to
foregoing analysis,
The
degree.
which have concluded that Con-
courts
those
disagree
to be
construed. Cal-
narrowly
“solicitation”
intended
gress
Comm’n,
435,
v.
Tax
242 Or.
Wholesale Co.
State
Roof
Beaird, Inc.,
147,
Ark.
v. AMF
(1967); Hervey
P.2d 233
(1971) (citing Cal-Roof).
S.W.2d
Indeed,
with the word solicitation
experience
our own
saw “solicitation” as involv-
Congress
our view that
supports
so
as those activities were
ing sundry
long
closely
activities
of a
product. Although
related to the eventual sale
construed the word “solicitation”
Court has never
we have had occasion to consider the
framework
contexts.
In Business Tax Bureau of the
term
other
Co.,
Philadelphia
Cyanamid
Dist. of
American
School
(1967),
A.2d 116
we discussed solicitation in the
Pa.
business” for
“doing
purposes
of what constitutes
context
tax.
also
v. Delaware &
business
See
Shambe
general
R.R.,
(1927).
288 Pa.
We also think
Coors Porcelain Co.
with automobiles. See
solicitors
(Colo.1973). Congress could hard-
State,
Quoting
wealth Court
claim
its
repre
dismissed
because
sentatives’
“made
the
presence
possible
realization and con
tinuance of valuable
relations.”
contractual
22 Pa.Cmwlth.
at
Appellee’s point also raises that the corpo rate income does not fall within tax of the purview federal because is a statute the tax and not a “property tax” net income This is argument tax. frivolous. The federal statute states expressly purposes of this chapter, “[f]or on, the term income tax’ ‘net means tax any imposed measured net income.” 15 U.S.C. by, § Tax is based on corporation’s Income taxable Corporation It is of absolute- income, (Supp.1977-78). 72 P.S. 7502 see tax;” that the tax is denominated a “property no moment ly tax, not the used the basis of the nomenclature it is it, that determinative. The income corporation describe the kind of tax to which is addressed. tax is our is a narrow one. by noting holding We end in interstate commerce seeks corporation engaged Where a *15 Commonwealth, in and that corporation’s business this to do in consists of its representatives the state activity sole of the corporation’s products to induce the seeking purchase orders, new products, taking customers of and informing by in the of those display products, Congress intended assisting from exempt be state tax based corporation any that such net income. corporation’s reversed and the case remanded for proceedings Order with opinion. consistent this
JONES, J., not in the decision of participate former C. did this case.
ROBERTS, J., opinion EAGEN, in which dissenting filed a J., joined. C.
ROBERTS, Justice, dissenting.
statute,
federal
unjustified interpretation
an
a
Through
Co.,
United
Tobacco
majority
appellant,
allows
States
to
through
taxation on income
earned
unquestionably
escape
conclusion,
in
In
reaching
Pennsylvania.
its activities
controlling
a
decision of the United
overlooks
majority
Court, Clairol,
Inc. v.
402 U.S.
Supreme
Kingsley,
States
want
(1971),
for
of a
dismissing
L.Ed.2d
N.J.
(per
federal
corporation, in in- commerce, distributing terstate its products wholesalers then who resell Pennsylvania, retailers. Appellant’s links wholesalers in are “missionary repre- orders, sentatives” who solicit furnish appellant’s promotion- materials, and take al sometimes orders. These orders are processed filled at out-of-state offices. visit The missionaries also retail outlets who sell tobacco products retailers Pennsylvania, encouraging make from purchases appellant’s products wholesalers. They hand out of new samples products repurchased also from its wholesalers. of these appellant samples Some are gratis, exchange preferred given display space samples retail outlets. Other are sold to retailers at at which the price missionary representatives purchased also, The representatives them wholesalers. at their discretion, out retailers’ own rotate stale inventory re- supplies it with fresh placing representatives carry with them, help set retailers’ counter up displays, further products appellant. new As the promote Assistant Divi- *16 for Manager testified, sion of appellant the missionaries’ “main function would be good to create will the among retail the throughout accounts territory in same token creating good we are will between United Tobacco and the Company distributors,” States wholesale and that a is “in representative general ... a good will ambassador for the 5% of Company.” About product retail in Pennsylvania distributions were made di- rectly by missionary representatives.
In
absence of pre-emptive
legislation,
states have
and tax
authority
regulate
broad
commerce in ways that
it. Mr.
Blackmun,
do not
burden
Justice
unduly
for an
Court,
unanimous
stated:
“ ‘It
is a truism that
the mere
act
carrying
commerce
business
interstate
does not exempt a corpo-
from
ration
state taxation.
“It was
the purpose
not
of the
clause
relieve
commerce
those
engaged
interstate
share of state tax burden even
just
from their
commerce
business.” Western
doing
the cost of
it increases
though
Revenue,
250, 254,
303 U.S.
Live
v. Bureau of
Stock
Co.
546, 548,
(1938).’
Pipeline
“Minimum standards State, thereof, subdivision shall have (a) political No or after year ending Sep- taxable impose, any power 14, 1959, net income tax on the income derived tember from interstate commerce by any person such within State within such or on by business activities State only if the either, taxable year such are person during of such behalf both, following: of the or orders such or his by person, the solicitation of
(1) per- for sales of tangible such State representative, which orders are sent outside State property, sonal and, approved, by or if are filled rejection, for approval State; point from a outside delivery shipment such or his person, the solicitation of orders (2) in the name of or for the such State representative, customer of such if prospective person, of a benefit such person customer to such to enable orders such from such solicitation resulting to fill orders customer (1).” in paragraph orders described are 381(a). 15 U.S.C. § intended to assure inter- Congress enacting
In Section *17 solicitation would not be sub- only that corporations state 2 Report, U.S.Code to state taxation. Senate jected (86th 1959), 2548 1st p. Cong. Admin.News Sess. Cong. & “solicitation,” in and “no noting strong language uses- activities,” would as a qualify business Section other Id. at 2554. The exemption. Report notes that many inter- state businesses were less concerned with obtaining exemp- tion for broad classes of activities than with being certain there is some minimal level of activity within a state below which corporation a cannot be taxed. Id. at 2550. This concern was touched off by Northwestern States Port- Minnesota, land Cement Co. v. 450, 357, U.S. (1959). L.Ed.2d 421 Portland Cement destabilized expecta- corporations tions of whose selling techniques depended part which upon knowing states could tax them and which could not. removing the By “travelling salesmen’s exemp- tion” that interstate businesses had enjoyed since Robbins v. District, Shelby County Taxing U.S. S.Ct. 694 (1887), L.Ed. the Court removed any such guidelines. Section 381 was designed to exclude from state taxation mere only solicitation.
Appellant’s missionary representatives perform marketing functions in addition to solicitation. They supervise retail marketing appellant’s products provid- ing free to retailers to samples introduce new products to market, strategically placing counter and store displays of appellant’s products, replacing stale goods on retailers’ repre- shelves with fresh materials carried in cars furnished sentatives by appellant performing similar services. To ignore this business in which reality, retailers receive goods not from out-of-state after mere solicitation from appellant, but directly appellant’s representatives in Pennsylva- nia, is ignore context which Section 381 was passed and in which it must be interpreted. facts,
On almost identical the New Jersey courts held Clairol, Inc. Clairol, taxable New Jersey. Inc. Kingsley, 109 N.J.Super. 213, aff’d, 262 A.2d 57 N.J. 270 A.2d 702 (1970) (solicitors performed other marketing duties such as rotating freshness, stock for setting up counter displays, etc.). The United States Supreme Court dismissed Clairol’s appeal for want of a substantial federal question. 402 L.Ed.2d 643 Such dismissal is a decision Supreme Court on the merits of the
146
the case
Hicks
presents.
which
situation
factual
particular
2289,
343-45,
2281,
45
332,
95 S.Ct.
Miranda, 422 U.S.
v.
difference
I see no substantial
Because
(1975).
223
L.Ed.2d
case,
instant
I
facts of the
and the
facts
Clairol
from the
of Section
interpretation
controls our
that Clairol
believe
174,
24,
43
67
Zucht v.
260 U.S.
King,
also
381.* See
when state court
will be dismissed
(appeal
(1922)
194
L.Ed.
correct).
clearly
is
question
on federal
decision
is also consist-
the word “solicitation”
interpretation
My
state
respect
to
presumed
that Congress
with the rule
ent
unless, and
to
only
state powers
traditional
sovereignty
Employees
limits those powers.
it
extent,
explicitly
Missouri,
Welfare v.
Health and
of Public
Department
1614, 1618,
Because
than
rather
Pennsylvania,
products
distributed
ately
*
support
distinction between
jurisdictions
this
also
other
from
Cases
explicitly
marketing.
have
Two other states
solicitation
mere
the incidentals of solicita
exclude even
“solicitation”
construed
Revenue,
274
546
Department of
Or.
Miles Laboratories
tion.
“solicitation”;
etc.,
displays,
up
not
(1976) (setting
counter
P.2d 1081
Oregon’s
allowed do
noteworthy
tax scheme
because
particularly
out of
escape
of income earned
taxpayers
from taxation
mestic
test);
v. State
Herff Jones Co.
the 381
where it failed
in states
state
(1967)
(corporation
Comm’n,
held
P.2d 998
430
Or.
Tax
beyond
only activity
funds was
collection of
taxable where
solicitation);
Beaird, Inc.,
Hervey
Ark.
464 S.W.2d
v. AMF
Pharmaceuticals,
Contra,
Inc. v. State
(1971).
rel.
State ex
Ciba
(incidentals
(Mo.1964) (pre-Clairol)
Comm'n,
382 S.W.2d
Tax
381). Similarly,
beyond exemption
those
go
of §
did not
corpora
exemptions
381 have involved
granting
under §
cases
other
go beyond
activity
narrow solicitation.
not
did
whose in-state
tions
Corp.,
P.2d
Distillers
v. Brown-Forman
Tax Comm’n
Oklahoma
facts);
Shoe
v. Cocre
(Okl.1966) (stipulated
International
Co.
denied,
(1964),
ham,
379 U.S.
cert.
EAGEN, J., joins C. dissenting opinion.
386A.2d482 COMMONWEALTHof MANGINI, Anthony (two Appellant cases). Robert Supreme Pennsylvania. Court
Argued March 1978. April
Decided 1978.