Martin I. Eisenstein

MANAGING PARTNER

Martin Eisenstein is Managing Partner of Brann & Isaacson.  His current area of concentration is advice and counsel to, and litigation on behalf of, internet/direct marketers and IT service and cloud service providers in connection with state and local tax and unclaimed property matters.  Marty was co-counsel for Wayfair, Overstock, and Newegg throughout the proceedings that led to the U.S. Supreme Court’s decision on June 21, 2018—South Dakota v. Wayfair, Inc., 138 S.Ct. 2080 (2018).  He has represented internet retailers and other direct marketers as well as IT service and cloud service providers in several cases in the last several years involving constitutional and federal and state statutory challenges to the states’ assessments of sales taxes, income taxes, and gross receipts taxes in Alabama, California, Colorado, Indiana, Illinois, Maine, Massachusetts, New Jersey, New York, New York City, Ohio, Tennessee, Texas, Virginia, and Washington, including in the following matters:

• Massachusetts Supreme Judicial Court’s decision – U.S. Auto Parts Network, Inc. v. Commissioner of Revenue, No. 13283 (December 22, 2022) – holding that Internet retailers, which use cookies and other Internet contacts, were not required to remit sales tax on Massachusetts sales, causing the abatement of millions of dollars of assessments of Internet companies;
• The New York Division of Tax Appeals decision – Yesware, Inc., Bellows and Andrus, New York Division of Tax Appeals, Administrative Law Judge Unit, DTA Nos. 829638, 829639 and 829640, (September 29, 2022) – in which we successfully argued that our client Yesware was providing non-taxable data processing services, rather than SaaS, which the Department claimed as the basis for its large sales tax assessment;
• Successful negotiation in the last year of settlements on behalf of the firm’s IT services/Internet retailer clients of assessments and audits for the following taxes: Texas sales tax and franchise taxes, Ohio CAT, New York sales tax, Chicago leased personal property tax, Pennsylvania GRT and sales taxes, California franchise taxes, Colorado home rule jurisdictions’ sales tax; and Washington B & O and retail sales taxes.
• Representation of taxpayers in the following noteworthy cases :  Newegg, Inc. v. State of Alabama Department of Revenue, Alabama Tax Tribunal (2018); Crutchfield, Inc. v. Testa, Supreme Court of Ohio (2016); AOL Inc. v. Department of Revenue, Washington Superior Court, No. 12-2-012005, July 26, 2013; AOL LLC v. Iowa Dep’t of Revenue, 771 N.W. 2d 404 (Iowa 2009); Random House, Inc. v. Div. of Taxation, 23 N.J. Tax 291 (2006); and L. Bean, Inc. v. Tax Assessor, 649 A.2d 331 (Me. 1994);
• Co-author of amicus curiae on behalf of the DMA in the U.S. Supreme Court cases of Quill v. North Dakota, 504 U.S. 298 (1992) and H. Holmes Company, LTD, 486 U.S. 24 (1988);
• Representation of ACMA in a case filed on August 19, 2022 challenging the California Franchise Tax Board’s regulation, interpreting the exemption from state income taxes provided by the federal statute, Public Law 86-272, so as to require companies that engage in no activities in California to pay the state’s income tax because they operate a website from outside of California.

Marty and his firm are state tax counsel for the organizations, ACMA and the Mailers’ Hub.  He regularly authors articles of interest to their members.

Marty regularly makes presentations on a variety of state and local use tax issues before organizations such as the ABA-IPT Advanced Tax Seminars, COST, Mailer’s Hub, Strafford Publications, The Nonprofit Alliance, and trade associations such as the American Catalog Mailers Association and NEMOA.  He is the author of several publications (listed below), including many articles in State Tax Notes for his firm’s quarterly column entitled Eyes on E-Commerce Law, of which he is the editor.

Marty’s extensive background in business transactions, including his CPA, has facilitated his representation and counseling of companies in connection with critical business events for the companies.