The practical impact of the landmark decision in South Dakota v. Wayfair, Inc. et al.,138 S. Ct. 2080 (2018) was that all states had implemented economic nexus standards for sales tax, along with marketplace facilitator rules by 2021. However, the expansion of economic nexus rules has led many businesses to overlook traditional bases of establishing physical presence, such as remote employees working in-state, independent contractors, inventory holdings, and supply-chain relationships. State tax authorities and courts still treat physical presence as a valid and independent basis for establishing nexus, with longstanding case law that offers guidance on how even minimal in-state activities are evaluated.
For tax professionals who advise multistate retailers, it remains essential to understand physical presence principles in addition to economic nexus standards. The lack of consistency across states makes this task more complicated.
Furthermore, the financial risks can be significant, for example, a 2024 case in Arizona led to an $8 million tax assessment after a retailer failed to account for nexus created by third-party distributors. Since that decision, several state tax agencies have issued guidance continuing to stake out aggressive physical presence nexus policies.
Physical Presence Nexus and Economic Nexus are Separate and Independent Bases for Establishing Nexus
Prior to the decision in South Dakota v. Wayfair, Inc. (2018), the U.S. Supreme Court established a bright-line Commerce Clause standard requiring a taxpayer to have a “physical presence” in a state to be subject to sales and use tax collection obligations. (Quill Corp. v. North Dakota, 504 U.S. 298 (1992); National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967).)
State legislatures also adopted click-through and affiliate nexus laws that applied relatively low-threshold physical presence standards to an increasingly digital economy, including activities involving website cookies or application downloads.
Although many states repealed these provisions after Wayfair, some continue to enforce them, leaving unwary taxpayers exposed to unexpected nexus determinations.
In the decades leading up to Wayfair, courts refined the physical presence standard, holding that nexus could be established by more than the “slightest presence” and where in-state activities were meaningfully connected to a retailer’s ability to develop or maintain a market in the state. (National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967); Scripto, Inc. v. Carson, 362 U.S. 207 (1960).)
Even minimal in-state activities, such as the presence of a sales representative or an independent contractor, was sufficient to satisfy the physical presence requirement. (Standard Steel Co. v. Washington Revenue Dept., 419 U.S. 560, 562).
However, the Court left open the question of how much in-state activity is sufficient to establish physical presence.
Courts continue to grapple with how Wayfair affects other Commerce Clause analyses and whether traditional physical presence standards retain their force as sufficient (though no longer necessary) bases for establishing nexus.
Physical Presence Litigation Continues: The Lessons of RockAuto, LLC v. Arizona Department of Revenue
A recent case in the physical presence jurisprudence is the 2024 Arizona Court of Appeals decision in RockAuto, LLC v. Arizona Department of Revenue (Dkt. No. 1 CA-TX 23-0002, (Az. Ct. App. Div. One, 04/02/2024). The Arizona Department of Revenue (“ADOR”) assessed a transaction privilege tax on sales by RockAuto, LLC (“RockAuto” or “the Company”) to Arizona customers between April 1, 2013 and April 30, 2019 (“the audit period”).
Since Arizona’s economic nexus rules did not become effective until October 1, 2019, this case addressed whether an online retailer that contracted with six third-party fulfillment centers in Arizona had physical presence in the State.
RockAuto’s Factual Background
RockAuto, an e-commerce auto-parts retailer based in Wisconsin, did not maintain a physical location or inventory in Arizona. RockAuto had employees who would occasionally take business trips to Arizona, the Company did not have any office or employees.
However, the Company contracted with at least six Arizona distributors (i.e., independent contractors) to provide product inventories and fulfill customer orders pursuant to RockAuto’s shipping an return policies. If a customer’s online cart contained multiple items, the customer could see if the products would ship from different warehouses.
But RockAuto did not disclose the warehouse’s location or that it used distributors to fulfill orders. RockAuto’s website also allowed customers to select different brands of the same part and then click “Choose for Me to Minimize Cost,” and RockAuto’s system selected the brand that would ship with the other products for the “lowest total cost.”
As a result, 89% of orders that RockAuto placed with Arizona suppliers shipped to customers outside of Arizona, while 83% of RockAuto’s sales to Arizona customers came from suppliers outside Arizona.
Unpacking the Ruling
The Tax Court and the Court of Appeals applied the same nexus principle that looks at whether the independent contractor’s (i.e., the supplier’s) activities in the state are “significantly associated with the taxpayer’s ability to establish and maintain a market in this state for the sales.”
RockAuto argued that it had no physical presence in Arizona because its distributors did not have “in-person contact with Arizona customers for sales, product installation, and/or customer service.”
In ruling for RockAuto, the Tax Court was persuaded by the fact that the suppliers’ activities were not specifically directed towards Arizona customers, as evidenced by the low percentage of Arizona sales that were fulfilled by the in-state suppliers.
Court of Appeals’ Different View
However, the Arizona Court of Appeals disagreed with the Tax Court’s decision. The Court of Appeal’s legal framework turned on whether the in-state independent contractors’ activities were “significantly associated with the taxpayer’s ability to establish and maintain a market in this state for the sales,” a standard drawn from Tyler Pipe Industries, Inc. v. Washington Department of Revenue (483 U.S. 232, 250 (1987)).
The decision notes that “an activity need not produce business in order to create nexus.” In other words, it is the nature of the activity that is relevant, not whether the activity itself includes direct in-person contact with customers.
In-State Activities That Created Nexus Under
For example, the Court of Appeals noted that the suppliers sent promotional materials to Arizona customers by using RockAuto’s branded tape and including a promotional magnet with each order.
The Court determined that the Arizona distributor’s activities were significantly associated with RockAuto’s ability to establish and maintain an in-state market by relying on the distributors to maintain inventory, ship orders to Arizona customers, accept returns, and use RockAuto promotional materials.
The Court also emphasized that the Company’s business model, aimed at improving customer satisfaction by lowering shipping times and costs, further supported its efforts to establish and maintain a market in Arizona.
Furthermore, the Court of Appeals also dismissed the Company’s claim that its suppliers did not aim to maintain an Arizona market because it chose which supplier would fulfill an order based on inventory and cost rather than location.
In other words, it did not matter to the Court of Appeals that only about 10% of the sales fulfilled by Arizona suppliers were shipped to Arizona customers or that 83% of sales to Arizona customers were fulfilled by out-of-state suppliers.
The Court of Appeals stated that a “representative’s in-state activities support concluding a taxpayer has a physical in-state presence, even when the representative is predominately focused on serving an out-of-state market.”
In addition, the Court noted that four Arizona business trips to meet with distributors within the six-year audit period supported a finding of physical presence.
Accordingly, RockAuto demonstrates Arizona’s assertive approach to establishing nexus based on in‑state fulfillment activities. The nature of remote employees’ and independent contractors’ duties in the state determines the nexus consequences, and tax professionals must evaluate those consequences on a case‑by‑case basis.
Key Takeaways
From a legal perspective, the importance of the RockAuto decision reaches well beyond Arizona.
As one of the few post-Wayfair analyses of physical presence, it underscores that the longstanding body of physical presence case law continues to inform state nexus determinations unless a state clearly provides otherwise.
Although post-Wayfair case law remains limited, numerous state tax authorities continue to interpret physical presence nexus broadly, often through recent rulings or guidance.
For example, the South Carolina Department of Revenue’s 2025 sales and use tax manual identifies activities that can create physical presence nexus, including: authorizing employees or third parties to install, deliver, service, or repair products, or to provide customer training or technical support; storing inventory within the state; or having an in-state representative operating from a home office in South Carolina. (South Carolina Sales and Use Tax Manual 2025 Edition, 09/01/2025.)
The North Carolina and Pennsylvania tax authorities follow similar approaches in their post-Wayfair guidance regarding remote employees working within the state and engaging in in-state activities. (North Carolina Sales and Use Technical Bulletin No. 1, 01/01/2025; Telework Guidance, Pennsylvania Department of Revenue, 07/01/2021.)
Practical Implications for 2026
When considered alongside the broader trend of assertive state guidance on physical presence, the RockAuto decision sends a clear message for 2026: physical presence nexus is far from a historical concept.
It remains a current, actively litigated, and broadly interpreted standard that functions independently of economic nexus and carries its own exposure risks.
Businesses and tax advisors must prepare to conduct comprehensive audits of in-state activities, not just assessments of economic nexus.
Relationships with third parties and the mobility of remote employees pose substantial risks, and unlike economic nexus, physical presence nexus has no sales volume threshold or small-seller exemption.
Following RockAuto, Arizona’s legislative efforts to define “physical presence” could establish guidance that influences how other states interpret the concept.
Leyton USA continues to closely track legislative and judicial developments, keeping tax practitioners informed of the latest guidance as this area of law evolves.
