Arizona Department of Revenue v. O'Connor, Cavanagh, Anderson, Killingsworth & Beshears

In Arizona Department of Revenue v. O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A., 192 Ariz. 200, 963 P.2d 279 (App. 1997) the question was whether Arizona activities of an out-of-state vendor created a sufficient nexus with Arizona to permit Arizona to impose retail transaction privilege taxes. 192 Ariz. at 201-02, 963 P.2d at 280-81. The out-of-state vendor, Dunbar Furniture, Inc., built custom workstations for an Arizona customer, the O'Connor law firm. Dunbar had no property, employees, offices, or showrooms in Arizona, although an Arizona retailer did serve as its independent representative on occasion. All negotiations between O'Connor and Dunbar took place in Arizona, either in person or by telephone. During that time, Dunbar employees brought two prototype workstations to Arizona and assembled them for review by O'Connor. Under the parties' contract, title to the workstations passed to O'Connor when they were delivered, and the risk of loss passed to O'Connor when they were installed. See id. at 202, 963 P.2d at 281. Dunbar employees delivered the workstations to Arizona. A local retailer installed them under contract with Dunbar and under supervision of a Dunbar factory representative. On three occasions thereafter, Dunbar sent employees to the O'Connor offices on warranty claims. See id. at 203, 963 P.2d at 282. In O'Connor, where ADOR imposed a use tax on the Arizona customer because the vendor did not maintain a place of business in Arizona, this court applied the Complete Auto test and the Tyler Pipe "crucial factor" and held that ADOR could not impose a use tax on the customer--because it could have imposed a retail transaction privilege tax on the vendor. O'Connor, 192 Ariz. at 204-08, 963 P.2d at 283-87. That holding illustrates that the vendor's place of business is an overly simplistic test in light of current Commerce Clause jurisprudence regarding taxation. That the regulation in question specifies that vendors maintaining a place of business in Arizona are subject to the sales tax does not necessarily mean that other vendors are not subject to the sales tax.