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AMAZON.COM, LLC v. NYS. DEPT.

1534, 1535, 601247/08, 107581/08.

81 A.D.3d 183 (2010)

913 N.Y.S.2d 129

AMAZON.COM, LLC, et al., Appellants, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE et al., Respondents. OVERSTOCK.COM, INC., Appellant, v. NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided November 4, 2010.

Attorney(s) appearing for the Case

Gibson, Dunn & Crutcher LLP, New York City ( Randy M. Mastro , Gabriel Herrmann and Timothy D. Swain [and Julian W. Poon , Taheane E. Kapur and Kahn A. Scolnick , of the California bar, admitted pro hac vice] of counsel), for Amazon.com, LLC, and another, appellants.

Bracewell & Giuliani, LLP, New York City ( Daniel S. Connolly , Rachel B. Goldman , David A. Shargel and David J. Ball of counsel), for Overstock.com, Inc., appellant.

Andrew M. Cuomo , Attorney General, New York City ( Peter Karanjia , Barbara D. Underwood and Andrew D. Bing of counsel), for respondents.

Venable LLP, New York City ( Gregory W. Gilliam of counsel), for Performance Marketing Alliance, amicus curiae.

McDermott Will & Emery LLP, New York City ( Arthur R. Rosen of counsel), for Tax Foundation, amicus curiae.

Stewart Occhipinti, LLP, New York City ( Charles A. Stewart, III of counsel), for American Legislative Exchange Council, amicus curiae.

ANDRIAS, J.P., SWEENY and DeGRASSE, JJ., concur with NARDELLI, J.; CATTERSON, J., concurs in a separate opinion.

OPINION OF THE COURT

NARDELLI, J.

In a case with far-reaching ramifications because of the exponential expansion of cyberspace in general, and commerce over the Internet in particular, the issue presented is the constitutionality of a recent amendment to Tax Law § 1101 (b) (8) (vi) intended to force on-line retailers to collect a sales tax on purchases made by New York residents. Since we find that there are issues of fact concerning some of the as...

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