On August 20, 2013, the United States Court of Appeals for the Tenth Circuit remanded
Direct Marketing Association v. Barbara Brohl to the District Court of Colorado and instructed the lower court to discuss the Commerce Clause claims of the Direct Marketing Association for lack of jurisdiction.
While the District Court must dissolve its permanent injunction against the Department from
enforcing Colorado’s remote seller sales and use tax notice and reporting requirements and dismiss
DMA’s Commerce Clause claims upon which the District Court ruled, the Court of Appeals did not
order the dismissal of DMA’s other claims that were stayed pending the resolution of the Commerce
Clause claims. It is unclear what effect the Court of Appeal’s ruling will have on these other claim.
When the District Court dissolves its permanent injunction against the Department, the Department
is expected to issue guidance regarding the timing of it enforcement of the remote seller sales tax
notice and reporting requirements. It is unclear what affect recent Colorado legislation
enacted in anticipation of the proposed federal Marketplace Fairness Act will have on the Department’s
enforcement of Colo. Rev. Stat. § 39-21-112.5(3.5) and its associated regulations.
