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OVERSTOCK.COM v. NYS DEPT.

No. 33

20 N.Y.3d 586 (2013)

987 N.E.2d 621

965 N.Y.S.2d 61

2013 NY Slip Op 2102

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

Court of Appeals of New York.

Decided March 28, 2013.

Attorney(s) appearing for the Case

Bracewell & Giuliani LLP, New York City ( Daniel S. Connolly and Rachel B. Goldman of counsel), for appellant in the first above-entitled action.

Gibson, Dunn & Crutcher LLP, New York City ( Randy M. Mastro and Oliver M. Olanoff of counsel), and Gibson, Dunn & Crutcher LLP ( Julian W. Poon , of the California bar, admitted pro hac vice, and Kahn A. Scolnick , of the California bar, admitted pro hac vice, of counsel) for appellants in the second above-entitled action.

Eric T. Schneiderman , Attorney General, New York City ( Steven C. Wu , Barbara D. Underwood and Andrew D. Bing of counsel), for respondents in the first and second above-entitled actions.

Judges GRAFFEO, READ and PIGOTT concur with Chief Judge LIPPMAN; Judge SMITH dissents in an opinion; Judge RIVERA taking no part.

OPINION OF THE COURT

Chief Judge LIPPMAN.

Plaintiffs challenge Tax Law § 1101 (b) (8) (vi) (the Internet tax), alleging that it is unconstitutional on its face because it violates the Commerce Clause by subjecting online retailers, without a physical presence in the state, to New York sales and compensating use taxes. They also maintain that the Internet tax violates the Due Process Clause by creating an irrational, irrebuttable presumption of solicitation...

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