Kansas Enacts Internet Affiliate Nexus Law

On April 16, 2013, Kansas Governor Sam Brownback signed SB 83, which includes a provision patterned after the New York Internet affiliate nexus law recently upheld by the New York Court of Appeals in Overstock.com v. New York Department of Taxation and Finance. The law amends the definition of “retailer doing business in the state” in K.S. § 79-3702(h)(1) to create a presumption of nexus if a retailer enters into an agreement with one or more Kansas residents under which the resident, for a commission or other consideration, refers customers to the retailer “by a link or an Internet website, by telemarketing, by an in-person oral presentation, or otherwise.” The presumption will apply so long as the cumulative gross receipts of the retailer for sales to Kansas customers purchasing through such referrals is at least $10,000 in the preceding 12 months. The presumption may be rebutted by a retailer submitting proof that the affiliates did not engage in activity that is significantly associated with the retailer’s ability to make and maintain a market in the state. Such a rebuttal “may consist” of sworn statements obtained from all affiliates that they did not solicit sales in the state on behalf of the retailer. The law takes effect 90 days after enactment, or on July 15, 2013. Ecommerce vendors should evaluate their Kansas affiliate relationships to determine how to respond to the law.