COMMONWEALTH OF MASSACHUSETTS Suffolk, ss. Superior Court Civil Action No. AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE, v. Plaintiffs, MICHAEL J. HEFFERNAN, in his capacity as the Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE, Defendant. PLAINTIFFS' EMERGENCY MOTION FOR A PRELIMINARY INJUNCTION Pursuant to Mass. R. Civ. P. 65 and Superior Court Rule 9A(e)(l), Plaintiffs American Catalog Mailers Association ("ACMA") and NetChoice (collectively, "Plaintiffs"), respectfully submit this motion for a preliminary injunction to enjoin the Defendant Michael J. Heffeman ("Commissioner") in his capacity as Commissioner of the Department of Revenue ("Department") from implementing or enforcing Department of Revenue Directive 17-1, "Requirement that Out-of-State Internet Vendors with Significant Massachusetts Sales Must Collect Sales or Use Tax" ("Directive"), which is scheduled to take effect July 1, 2017. A copy of the Directive is attached to Plaintiffs' Verified Complaint for Declaratory Judgment ("Complaint") as Ex. A. The Directive should be enjoined before it takes effect and until its validity can be adjudicated by the Court because the Plaintiffs have a strong likelihood of success on their claims against the Commissioner for failure to comply with the requirements of the Administrative Procedures Act ("APA"), M.G.L. c. 30A, 3, and for violation of the federal
Internet Tax Freedom Act ("ITFA"), 42 U.S.C. 151 note. Plaintiffs' affected members will be irreparably harmed if the Directive goes into effect. In support of their Motion, Plaintiffs rely on the attached memorandum of law and supporting Affidavit of Christopher Cox dated June 5, 2017 ("Cox Aff"), which is attached to the Complaint as Ex. B. Plaintiffs also submit the accompanying proposed form of preliminary injunction. The Plaintiffs' lawsuit challenges the Commissioner's attempt, through a new rule announced by administrative fiat in the Directive and in clear violation of the limitations on state taxing authority under both the Commerce Clause of the United States Constitution and the ITFA, to require out-of-state Internet vendors to collect and remit Massachusetts sales and use taxes. It has been established by the Supreme Court for at least 50 years that a state lacks the power to impose a sales or use tax collection obligation on a company located outside the state that has no "physical presence" in the taxing state and communicates with its customers there solely via the instrumentalities of interstate commerce (e.g.. United States mail, common carrier, and, today, the Internet). See National Bellas Hess, Inc. v. Illinois Dep't of Revenue, 386 U.S. 753, 758-60 (1967); Quill Corp. v. North Dakota, 504 U.S. 298, 313-19 (1992). Moreover, as the author of the federal ITFA attests in his affidavit, Congress expressly extended the protections of Quill to Internet vendors through the ITFA. See Cox Aff. 17-20. The Directive violates these express federal protections. Furthermore, the Commissioner issued the Directive in clear violation of the procedural safeguards of the state APA. On April 3, 2017, without prior notice or warning, the Commissioner issued the Directive. See Complaint, 1, 38, and Ex. A. The Directive, by its express terms, "adopts an administrative bright line rule" henceforth to be applied by the Department in demanding sales and use tax compliance by vendors located outside of the Commonwealth on whom the 2
Department never previously imposed the requirements of the Massachusetts sales and use tax laws, and without regard to their particular physical connections, or lack thereof, to the Commonwealth. Id. Ex. A, Part I. Moreover, "rather than applying the state's sales and use tax collection requirements on a case-by-case basis," which the Commissioner acknowledges is required by the Commerce Clause of the U.S. Constitution, as interpreted by the Supreme Court in Quill, the Commissioner announced his intention to enforce an entirely new standard in the service of "administrative simplicity." Id. at Parts I, IV(c). Setting aside for present purposes the constitutional infirmities of the Directive, which are undeniably grave, Plaintiffs are entitled to a preliminary injunction to prevent irreparable harm to their affected members until Plaintiffs can obtain a final judgment on the validity, enforceability, and constitutionality of Directive 17-1 because they are likely to prevail on their APA and ITFA claims. Specifically: (1) The Directive, which states a binding general rule of prospective application, was issued without regard to, or compliance with, the requirements of the APA applicable to agency regulations, including the requirements of notice and the opportunity for interested parties to comment and the preparation of a small business impact statement. See M.G.L. 30A, 1, 3; Complaint 27-44. (2) The Directive is on its face a "discriminatory tax on electronic commerce," prohibited by the plain terms and clear intent of the ITFA. See ITFA 1101(a)(2); Cox Aff. 6-7. Indeed, former-representative Christopher Cox, the original draftsman of the ITFA, attests in his supporting affidavit that the Commissioner's new rule blatantly violates the provisions of the ITFA, a statute crafted by Congress and made permanent in 2016 specifically to prevent the kinds of state tax obligations purportedly created by the Directive, namely, those targeting 3
Internet vendors precisely because the vendors engage in business though electronic commerce. See Cox Aff., ffij 20-24. Plaintiffs and their affected members will be irreparably harmed if the Directive becomes effective during the time that its validity remains subject to serious doubt, while the Commissioner and the Department would be in no way harmed by an injunction against implementation of the Directive, which is a prospective-only rale with an arbitrary effective date. Without the issuance of a preliminary injunction, affected retailers will be confronted with the requirement of registering with the Department of Revenue, collecting Massachusetts sales tax from Massachusetts residents, and remitting those monies to the Department, beginning July 1. Failure to comply will expose affected vendors to potential assessment and liability for sales tax; electing to comply means sacrificing their federal constitutional rights and ITFA protections. Moreover, the Directive may compel them to undertake extensive and expensive modifications to their websites and supporting systems to facilitate the collection of sales or use tax from Massachusetts customers and properly calculate the tax to be collected on behalf of the Commonwealth, all in response to an invalid and unlawful new rule. By contrast, neither the Commissioner nor the public at large will suffer cognizable harm from the issuance of a preliminary injunction for the duration of this litigation. The Directive is entirely prospective and its effective date was arbitrarily selected by the Commissioner; delaying its implementation until after its legality can be adjudicated will, at worst, delay the effective date of tax reporting thresholds selected unilaterally by the Commissioner. 4
For the reasons set forth above and in the Plaintiffs' supporting memorandum and affidavit, the Plaintiffs respectfully request that the Court enter a preliminary injunction substantially in the form of the attached proposal. Respectfully submitted, DATED this % day of June, 2017 BRANN & ISAACSON George S. Isaacson (BBO# 247680) gisaacson@brannlaw.com Matthew P. Schaefer (BBO# 567819) mschaefer@br annlaw. com Jamie Szal (BBO# 677051) j szal@brannlaw. com 184 Main Street P.O. Box 3070 Lewiston, Maine 04243-3070 Telephone: (207) 786-3566 Facsimile: (207) 783-9325 Joseph F. Hardcastle (BBO# 559479) HARDCASTLE & SHOBER 50 Congress Street, Suite 415 Boston, MA 02109 (617) 248-2240 jfh@hardcastleshober.com Attorneys for Plaintiffs American Catalog Mailers Association and NetChoice 5