Martin I. Eisenstein
C: (207) 212-9123
After hours: (207) 786-3566 EXT: 111
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.
University of Illinois (B.S., with high honors, 1972; J.D., with distinction, 1975)
University of Stockholm, Sweden (Masters of Law, 1976)
Illinois
Maine
U.S. Supreme Court
U.S. Court of Appeals, First, Fourth, and Ninth Circuits
U.S. Tax Court
U.S. District Court, District of Maine
Androscoggin County, Maine State and American (Antitrust, Business Law and Taxation Sections) Bar Associations
Member, Order of the Coif
Certified Public Accountant, Illinois
Martindale AV Rating: 5.0
Super Lawyers (2007 – 2024)
The Best Lawyers in America®, Litigation & Controversy: Tax and Tax Law (2007 – 2024)
Benchmark Litigation, Local Litigation Star, Tax Litigation.
“Economic Presence Nexus for State and Local Taxes: Emerging Trends in Gross Receipts, Income, Sales and Use Tax,” Strafford Publishing Webinar (February 16, 2023)
“Tax Landscape for Direct Mail Producers,” The Mailers Hub webinar (February 21, 2023)
“Tax(onomy) of Service: The True Object Test?” State Tax Notes (January 9, 2023)
“A Step Too Far: Economic Nexus in Colorado,” State Tax Notes (August 1, 2022)
“Step Into the Brave New SALT World of Blockchain,” State Tax Notes (April 7, 2022)
“State Taxes in the Digital Economy: From Digital Services to Blockchain Technologies,” Strafford Publishing webinar (March 2, 2022)
“State Taxes: The Other Shoe to Drop,” The Mailers Hub webinar (January 18, 2022)
“Post-Wayfair, Franchise Taxes Still Fail Complete Auto Inspection,” State Tax Notes (October 18, 2021)
“Sales Tax Treatment of Direct Mail and Online Communications Under New State Tax Rules,” Strafford Publishing webinar (July 7, 2021)
“State and Local Tax Claims in Ch. 11 Bankruptcy Challenges and Strategies for Attorneys and SALT Practitioners,” Strafford Publishing webinar (April 1, 2021)
“State Sales Tax in E-Commerce: Navigating Electronic Taxability and the Economic Nexus Rule,” Strafford Publishing webinar (February 11, 2021)
“Go Broke: State Tax Bankruptcy in the COVID Era,” State Tax Notes (December 21, 2020)
“Hey Siri, What About Income Taxes on AI?” State Tax Notes (6/8/2020)
“Alexa, Is AI Taxable?” State Tax Notes (5/11/2020)
“Wayfair Misused: States and Cities Seek to Expand Their Tax Powers,” State Tax Notes (December 16, 2019)
“Economic Presence Nexus for State and Local Taxes: Meeting the Challenges of Developing State Standards After Wayfair,” Strafford Publishing webinar (September 24, 2019)
“Sales Tax Treatment of Direct Mail and Online Communications Post-Wayfair,” Strafford Publishing webinar (August 20, 2019)
“Chaos Theory: The States’ Response to Wayfair,” State Tax Notes (June 10, 2019)
“It’s a Wayfair World Now and We All Have to Live In It,” American Catalog Mailer’s Association, 2019 National Catalog Forum (April 8, 2019)
“The Nexus Conundrum in the Post-Wayfair World,” Advanced Sales/Use Tax Seminar, Institute for Professional Taxation, (March 13, 2019)
“P.L. 86-72 Protection for Service Providers,” Strafford Publishing webinar (February 19, 2019)
“New Economic Presence Nexus Standards for Foreign Remote Sellers: Impact of Wayfair Holding on Non-U.S. Companies,” Strafford Publishing webinar (February 5, 2019)
“Nexus Limitations and Protections for Service Providers Post-Wayfair,” Strafford Publishing webinar (February 2, 2019)
“Wayfair and P.L. 86-272 In a Services Economy,” State Tax Notes (November 5, 2018)
“Public Law 86-272: Sunlight for a Cloud Service,” State Tax Notes (May 21, 2018)
“Here, There, and Everywhere: Constitutional Limits on IT Sourcing,” State Tax Notes (November 27, 2017)
“The L in SALT: Limits on Local Jurisdiction to Tax,” State Tax Notes (May 29, 2017)
“Where’s Waldo: Sourcing IT and Cloud Services,” State Tax Notes (August 8, 2016)
“State Sales Tax in the Digital Economy: Navigating Electronic Taxability and the Factor Presence Rule,” Strafford Publishing webinar (February 10, 2016)
“Taxing Thin Air: Cloud Computing Meets Limitless Jurisdiction,” State Tax Notes (February 8, 2016)
“State Sales and Transaction Taxes of IT Products and Services: Navigating the Evolving Landscape,” Strafford Publishing webinar (March 5, 2015)
“Transaction Taxes on Information Technologies: The Threat,” State Tax Notes (December 22, 2014)
“Let the Sunshine In: The Age of Cloud Computing,” State Tax Notes (November 28, 2011)
“Sales Tax on Information Services: Navigating Aggressive State Policies,” Strafford Publishing webinar (August 11, 2011)
“The Right Question on the Nexus Standard for Gross Receipts Taxes,” State Tax Notes (February 7, 2011)
“Interstate or Intrastate: Taxability of Telecommunications,” State Tax Notes (November 12, 2007)
Past Chair of the Board of Northern New England Passenger Rail Authority
Past Member of Board of Directors of St. Mary’s Health System
Past Chair of Board of Directors, Lewiston Auburn Economic Growth Council
Founder, Cedar Beach Cedar Island Supporters, Inc.
Past Chair of Central Maine Community Foundation Board;
Past Chair, Federal and State Tax Section, Maine Bar Association
Past Member of Governor’s Judicial Selection Committee
Past Chair of LA Arts Board
