Well, it's going to take a Supreme Court decision, since in 1992, the U.S. Supreme Court decided this already in Quill vs. North Dakota, which was basically a followup decision to the case of Complete Auto Transit, Inc. v. Brady.
In essence, the Court said in Quill that:
In the Complete Auto Transit case, the Supreme Court articulated a four-part test to determine if a state tax scheme unduly burdens interstate commerce. The first prong of the Complete Auto test requires a taxpayer to have nexus (i.e. a connection) with a state before it can impose its tax jurisdiction. In Quill Corp. v. North Dakota, the Supreme Court explained that a business had to be physically present in a state before that state could require the business to collect use tax on its behalf.
The facts in Quill Corp. are as follows: North Dakota sent a notice to Quill Corp. that it owed use tax (a companion tax to the sales tax) payments for purchases that North Dakota residents had made through Quill Corp.?s catalogue. Quill responded that it did not have nexus in North Dakota because it had no physical operations or employees and hence did not have to collect North Dakota use tax on sales made to North Dakota customers.
The Supreme Court sided with Quill, ruling that a taxpayer must have a physical presence in a state in order to require collection of sales or use tax for purchases made by in-state customers. Physical presence means offices, branches, warehouses, employees, etc. The existence of customers alone (i.e. economic presence) did not create sufficient nexus under the Commerce Clause for North Dakota to impose a sales tax collection burden on Quill Corp..
The Supreme Court?s reasoning was at least partially based on the fact that, at the time the case was decided in 1992, there were over 6,000 separate sales and use tax jurisdictions in the United States (states, localities, special tax districts, etc.) and to impose a collection obligation on a remote seller would impose a crushing burden that would severely restrict interstate commerce.
Of course, there is a movement afoot to simplify state sales tax systems in order to lobby Congress to overturn Quill and require remote sellers to collect sales and use tax.
So Congress will have to pass a law allowing states to collect sales tax on out-of-state sellers who are interstate sellers with no physical presence in XX state. The interstate tax issue is completely controlled by Congress and despite what any state tries to do, it is typically struck down.
A quickie on the implications of the Complete Auto Transit v. Brady on tax law:
States have nearly complete authority to tax activities within their own borders. These broad taxing powers, however, are subject to limitations of the U.S. Constitution. The most important structural limit on state tax power is the Commerce Clause.
The Commerce Clause gives Congress the sole power to regulate commerce among the states. The Supreme Court has used the Clause to strike down state tax schemes that place an undue burden on interstate commerce. In Complete Auto Transit v. Brady, the Supreme Court articulated a four-part test to determine if a state tax violates the Commerce Clause:
· Nexus: there must be a sufficient connection between the taxpayer and the state to warrant the imposition of state tax authority
· Fair Apportionment: the state must not tax more than it?s fair share of the income of a taxpayer
· No discrimination: the state must not treat out-of-state taxpayers differently than in-state taxpayers
· Related to services: the tax must be fairly related to services provided to the taxpayer by the state
The Complete Auto test serves to protect the free flow of commerce from undue state regulation, including taxes that operate like tariffs to impede interstate commerce. Without the Commerce Clause, states would be free to use their tax powers to benefit in-state businesses by burdening their out-of-state competitors.