The New Jersey Tax Court has issued a written amplification of its bench decision in Lorillard Licensing Company LLC's appeal that the Division of Taxation may not apply dual nexus standards for throwout purposes.

In 2011 the New Jersey Supreme Court narrowed 'throwout' to find it constitutional on its face in Whirlpool Properties, Inc v Director, Division of Taxation. In so doing, it held that throwout does not apply when another state may constitutionally impose a tax on the taxpayer – regardless of the tax decisions by the other state. In its amplification, the tax court applied Whirlpool Properties and held that, because New Jersey successfully asserted an economic nexus standard for corporation business tax constitutional subjectivity purposes, in applying throwout, that same standard must also apply for other states' subjectivity.

The state has appealed the tax court's bench decision (now amplified).

For further information on this topic please contact Craig Fields or Mitchell Newmark at Morrison & Foerster LLP by telephone (+1 303 592 1500), fax (+1 303 592 1510) or email (cfields@mofo.com or mnewmark@mofo.com). The Morrison & Foerster website can be accessed at www.mofo.com.