Transacting business, and the tests that trigger obligations.
Esshaki Legal Media TeamCurrent as of July 2023
Operating across state lines creates registration and tax obligations that are
easy to trigger and easy to miss.
Qualification to do business. Required where the entity transacts business
in the state, a term defined by exclusion in most statutes — maintaining bank
accounts, holding meetings, and isolated transactions do not count; employees,
offices, property and a regular course of business do.
Consequences of failure. Inability to bring suit in the state’s courts until
qualified, back fees and penalties, and in a few states contract
unenforceability. Defendants raise it as a threshold defense.
Income tax nexus. Physical presence, and increasingly economic nexus based
on receipts thresholds. Federal law protects solicitation of orders for tangible
goods where the orders are approved and filled outside the state — a narrow
protection that does not cover services, licensing or most modern business
models.
Sales tax nexus on economic thresholds following the abandonment of the
physical presence requirement, with registration, collection and filing
obligations in every state where the threshold is met.
Employment. A single employee generally creates withholding, unemployment
insurance and workers compensation obligations.
Practical approach. A periodic nexus review as the business grows, because
the obligations accrue whether or not anyone noticed.