Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
The Power of United States Territories to Tax Interstate and Foreign Commerce: Why the Commerce and Import-Export Clauses Do Not Apply
This Article shall consider the legality of taxes enacted by United States territorial possessions that discriminate against interstate commerce, with a focus on the case of a use tax imposed without a corresponding sales tax. Part I provides a brief overview of the five inhabited United States insular territories with a focus on their histories, political status, and the application of the United States Constitution to their jurisdictions. Part II summarizes the use tax, its relationship to the sales tax, and the constraints the Commerce Clause and the Import-Export Clause impose on use taxes enacted by individual states. Part III considers whether the limits these constitutional provisions place on states’ ability to collect a use tax apply to United States territories, ultimately determining that the limits do not apply. Part III further concludes that a rational basis exists for such discriminatory taxes.
*LL.M. in Taxation Candidate, New York University School of Law; Appellate Law Clerk to Chief Justice Rhys S. Hodge, Supreme Court of the Virgin Islands; University of Pennsylvania Law School, J.D., 2007. The opinions in this Article are the author’s alone and do not reflect the views of Chief Justice Hodge, the Supreme Court of the Virgin Islands, or the Virgin Islands judiciary. I would like to thank Professor Mitchell Kane for his helpful feedback and support.