Case Study: Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co.

This case study analyzes the U.S. Supreme Court case of Wisconsin Department of Revenue v. William Wrigley, Jr., Co., concerning the application of Public Law 86-272, which limits a state's ability to tax the income of corporations whose only in-state activities consist of soliciting orders for tangible goods. The case revolves around whether Wrigley's activities in Wisconsin, including providing display racks, replacing stale gum, and occasionally filling racks from salesmen's stock, exceeded the protection of the law. The Court considered the nature of Wrigley's sales representatives' activities, the extent of their involvement in Wisconsin, and whether these activities constituted more than mere solicitation. The decision ultimately determined whether Wrigley's activities were substantial enough to subject the company to Wisconsin franchise tax, with the Court examining the history of the law and the concerns it addressed regarding the uncertainty surrounding state taxation of interstate commerce.

WISCONSIN DEPARTMENT OF REVENUE, Petitioner v.
WILLIAM WRIGLEY, JR., CO.
Case Information:
Docket/Court: 91-119, U.S. Supreme Court
Date Issued: 06/19/1992
Tax Type(s): Corporate Income Tax
Cite: 505 US 214 , 112 S Ct 2447 , 120 L Ed 2d 174
OPINION
Justice Scalia delivered the opinion of the Court.
Section 101(a) of Public Law 86-272, 73 Stat 555 (1959), 15 USC § 381 [15 USCS § 381],
prohibits a State from taxing the income of a corporation whose only business activities within the
State consist of "solicitation of orders" for tangible goods, provided that the orders are sent
outside the State for approval and the goods are delivered from out-of-state. The issue in this
case is whether respondent's activities in Wisconsin fell outside the protection of this provision.
I
Respondent William Wrigley, Jr., Co. is the world's largest manufacturer of chewing gum. Based
in Chicago, it sells gum nationwide through a marketing system that divides the country into
districts, regions, and territories. During the relevant period (1973-1978), the Midwestern district
included a Milwaukee region, covering most of Wisconsin and parts of other States, which was
subdivided into several geographic territories.
The district manager for the Midwestern district had his residence and company office in Illinois,
and visited Wisconsin only six to nine days each year, usually for a sales meeting or to call on a
particularly important account. The regional manager of the Milwaukee region resided in
Wisconsin, but Wrigley did not provide him with a company office. He had general responsibility
for sales activities in the region, and would typically spend 80-95% of his time working with the

sales representatives in the field or contacting certain "key" accounts. The remainder of his time
was devoted to administrative activities, including writing and reviewing company reports,
recruiting new sales representatives, making recommendations to the district manager
concerning the hiring, firing, and compensation of sales representatives, and evaluating their
performance. He would preside at full-day sales strategy meetings for all regional sales
representatives once or twice a year. The manager from 1973 to 1976, John Kroyer, generally
held these meetings in the "office" he maintained in the basement of his home, whereas his
successor, Gary Hecht, usually held them at a hotel or motel. (Kroyer claimed income tax
deductions for this office, but Wrigley did not reimburse him for it, though it provided a filing
cabinet.) Mr. Kroyer also intervened two or three times a year to help arrange a solution to credit
disputes between the Chicago office and important local accounts. Mr. Hecht testified that he
never engaged in such activities, although Wrigley's formal position description for regional sales
manager continued to list as one of the assigned duties "[r]epresent[ing] the company on credit
problems as necessary."
The sales or "field" representatives in the Milwaukee region, each of whom was assigned his own
territory, resided in Wisconsin. They were provided with company cars, but not with offices. They
were also furnished a stock of gum (with an average wholesale value of about $1000), a supply of
display racks, and promotional literature. These materials were kept at home, except that one
salesman, whose apartment was too small, rented storage space at about $25 per month, for
which he was reimbursed by Wrigley.
On a typical day, the sales representative would load up the company car with a supply of display
racks and several cases of gum, and would visit accounts within his territory. In addition to
handing out promotional materials and free samples, and directly requesting orders of Wrigley
products, he would engage in a number of other activities which Wrigley asserts were designed to
promote sales of its products. He would, for example, provide free display racks to retailers
(perhaps several on any given day), and would seek to have these new racks, as well as pre-
existing ones, prominently located. The new racks were usually filled from the retailer's existing
stock of Wrigley gum, but it would sometimes happen—perhaps once a month—that the retailer
had no Wrigley products on hand and did not want to wait until they could be ordered from the
wholesaler. In that event, the rack would be filled from the stock of gum in the salesman's car.
This gum, which would have a retail value of $15 to $20, was not provided without charge. The

representative would issue an "agency stock check" to the retailer, indicating the quantity
supplied; he would send a copy of this to the Chicago office or to the wholesaler, and the retailer
would ultimately be billed (by the wholesaler) in the proper amount.
When visiting a retail account, Wrigley's sales representative would also check the retailer's stock
of gum for freshness, and would replace stale gum at no cost to the retailer. This was a regular
part of a representative's duties, and at any given time up to 40% of the stock of gum in his
possession would be stale gum that had been removed from retail stores. After accumulating a
sufficient amount of stale product, the representative either would ship it back to Wrigley's
Chicago office or would dispose of it at a local Wisconsin landfill.
Wrigley did not own or lease real property in Wisconsin, did not operate any manufacturing,
training, or warehouse facility, and did not have a telephone listing or bank account. All Wisconsin
orders were sent to Chicago for acceptance, and were filled by shipment through common carrier
from outside the State. Credit and collection activities were similarly handled by the Chicago
office. Although Wrigley engaged in print, radio, and television advertising in Wisconsin, the
purchase and placement of that advertising was managed by an independent advertising agency
located in Chicago.
Wrigley had never filed tax returns or paid taxes in Wisconsin; indeed, it was not licensed to do
business in that State. In 1980, petitioner Wisconsin Department of Revenue concluded that the
company's instate business activities during the years 1973-1978 had been sufficient to support
imposition of a franchise tax, and issued a tax assessment on a percentage of the company's
apportionable income for those years. Wrigley objected to the assessment, maintaining that its
Wisconsin activities were limited to "solicitation of orders" within the meaning of 15 USC § 381
[15 USCS § 381], and that it was therefore immune from Wisconsin franchise taxes. After an
evidentiary hearing, the Wisconsin Tax Appeals Commission unanimously upheld the imposition
of the tax. CCH Wis Tax Rptr ¶ 202-792 (1986). It later reaffirmed this decision, with one
commissioner dissenting, after the County Circuit Court vacated the original order on procedural
grounds. CCH Wis Tax Rptr ¶ 202-926 (1987). The County Circuit Court then reversed on the
merits, CCH Wis Tax Rptr ¶ 203-000 (1988), but that decision was in turn reversed by the
Wisconsin Court of Appeals, with one judge dissenting. 153 Wis 2d 559 , 451 NW2d 444
(1989) . The Wisconsin Supreme Court, in a unanimous opinion, reversed yet once again, thus

finally disallowing the Wisconsin tax. 160 Wis 2d 53 , 465 NW2d 800 (1991) . We granted the
State's petition for certiorari, 502 US _______ , 116 L Ed 2d 27 , 112 S Ct 49 (1991) .
II
In Northwestern States Portland Cement Co. v Minnesota, 358 US 450, 454 , 3 L Ed 2d 421, 79
S Ct 357 , 67 ALR2d 1292 (1959) , we considered Minnesota's imposition of a properly
apportioned tax on the net income of an Iowa cement corporation whose "activities in Minnesota
consisted of a regular and systematic course of solicitation of orders for the sale of its products,
each order being subject to acceptance, filling and delivery by it from its plant [in Iowa]." The
company's salesmen, operating out of a three-room office in Minneapolis rented by their
employer, solicited purchases by cement dealers and by customers of cement dealers. They also
received complaints about goods that had been lost or damaged in shipment, and forwarded
these back to Iowa for further instructions. Id., at 454-455, 3 L Ed 2d 421 , 79 S Ct 357 , 67
ALR2d 1292 . The cement company's contacts with Minnesota were otherwise very limited; it had
no bank account, real property, or warehoused merchandise in the State. We nonetheless
rejected Commerce Clause and due process challenges to the tax:
"We conclude that net income from the interstate operations of a foreign corporation
may be subjected to state taxation provided the levy is not discriminatory and is
properly apportioned to local activities within the taxing State forming sufficient
nexus to support the same." Id., at 452, 3 L Ed 2d 421 , 79 S Ct 357 , 67 ALR2d
1292 .
The opinion in Northwestern States was handed down in February 1959. Less than a week later,
we granted a motion to dismiss (apparently on mootness grounds) the appeal of a Louisiana
Supreme Court decision that had rejected due process and Commerce Clause challenges to the
imposition of state net-income taxes based on local solicitation of orders that were sent out-of-
state for approval and shipping. Brown-Forman Distillers Corp. v Collector of Revenue, 234 La
651 , 101 So 2d 70 (1958) , appeal dism'd, 359 US 28 , 3 L Ed 2d 625 , 79 S Ct 602 (1959) .
That decision was particularly significant because, unlike the Iowa cement company in
Northwestern States, the Kentucky liquor company in Brown-Forman did not lease (or own) any
real estate in the taxing state. Rather, its activities were limited to

"the presence of 'missionary men' who call upon wholesale dealers [in Louisiana]
and who, on occasion, accompany the salesmen of these wholesalers to assist
them in obtaining a suitable display of appellant's merchandise at the business
establishments of said retailers ...." 234 La, at 653-654, 101 So 2d, at 70.
Two months later, we denied certiorari in another Louisiana case upholding the imposition of
state tax on the income of an out-of-state corporation that neither leased nor owned real property
in Louisiana and whose only activities in that State "consist[ed] of the regular and systematic
solicitation of orders for its product by fifteen salesmen."International Shoe Co. v Fontenot, 236
La 279, 280 , 107 So 2d 640, 640 (1958) , cert denied, 359 US 984 , 3 L Ed 2d 933 , 79 S Ct
943 (1959) .
Although our refusals to disturb the Louisiana Supreme Court's decisions in Brown-Forman and
International Shoe did not themselves have any legal significance, see Hopfmann v Connolly, 471
US 459 , 460-461, 85 L Ed 2d 469 , 105 S Ct 2106 (1985) ; United States v Carver, 260 US 482,
490 , 67 L Ed 361, 43 S Ct 181 (1923) , our actions in those cases raised concerns that the broad
language of Northwestern States might ultimately be read to suggest that a company whose only
contacts with a State consisted of sending "drummers" or salesmen into that State could lawfully
be subjected to (properly apportioned) income taxation based on the interstate sales those
representatives generated. In Heublein, Inc. v South Carolina Tax Comm'n, 409 US 275 , 34 L
Ed 2d 472 , 93 S Ct 483 (1972) , we reviewed the history of § 381 and noted that the complaints
of the business community over the uncertainty created by these cases were the driving force
behind the enactment of § 381:
" 'Persons engaged in interstate commerce are in doubt as to the amount of local
activities within a State that will be regarded as forming a sufficient ... connectio[n]
with the State to support the imposition of a tax on net income from interstate
operations and 'properly apportioned' to the State.' " Id., at 280, 34 L Ed 2d 472 ,
93 S Ct 483 (quoting S Rep No. 658, 86th Cong, 1st Sess, p 2-3 (1959)). 1
Within months after our actions in these three cases, Congress responded to the concerns that
had been expressed by enacting Public Law 86-272, which established what the relevant section
heading referred to as a "minimum standard" for imposition of a state net-income tax based on
solicitation of interstate sales:

"No State ... shall have power to impose, for any taxable year ..., a net income tax
on the income derived within such State by any person from interstate commerce if
the only business activities within such State by or on behalf of such person during
such taxable year are either, or both, of the following:
"(1) the solicitation of orders by such person, or his representative, in such State for
sales of tangible personal property, which orders are sent outside the State for
approval or rejection, and, if approved, are filled by shipment or delivery from a
point outside the State; and
"(2) the solicitation of orders by such person, or his representative, in such State in
the name of or for the benefit of a prospective customer of such person, if orders by
such customer to such person to enable such customer to fill orders resulting from
such solicitation are orders described in paragraph (1)."
73 Stat 555, 15 USC § 381(a) [15 USCS § 381(a)].
Although we have stated that § 381 was "designed to define clearly a lower limit" for the exercise
of state taxing power, and that "Congress' primary goal" was to provide "[c]larity that would
remove [the] uncertainty" created by Northwestern States, see Heublein, supra, at 280, 34 L Ed
2d 472 , 93 S Ct 483 , experience has proved § 381's "minimum standard" to be somewhat less
than entirely clear. The primary sources of confusion, in this case as in others, have been two
questions: (1) what is the scope of the crucial term "solicitation of orders"; and (2) whether there
is a de minimis exception to the activity (beyond "solicitation of orders") that forfeits § 381
immunity. We address these issues in turn.
A
Section 381(a)(1) confers immunity from state income taxes on any company whose "only
business activities" in that State consist of "solicitation of orders" for interstate sales.
"Solicitation," commonly understood, means "[a]sking" for, or "enticing" to, something, see Black's
Law Dictionary 1393 (6th ed 1990); Webster's Third New International Dictionary 2169 (1981)
("solicit" means "to approach with a request or plea (as in selling or begging)"). We think it evident
that in this statute the term includes, not just explicit verbal requests for orders, but also any
speech or conduct that implicitly invites an order. Thus, for example, a salesman who extols the

virtues of his company's product to the retailer of a competitive brand is engaged in "solicitation"
even if he does not come right out and ask the retailer to buy some. The key question in this case
is whether, and to what extent, "solicitation of orders" covers activities that neither explicitly nor
implicitly propose a sale.
In seeking the answer to that question, we reject the proposition put forward by Wisconsin and its
amici that we must construe § 381 narrowly because we said in Heublein that " 'unless Congress
conveys its purpose clearly, it will not be deemed to have significantly changed the Federal-State
balance,' " 409 US, at 281-282, 34 L Ed 2d 472 , 93 S Ct 483 (citation omitted). That principle—
which we applied in Heublein to reject a suggested inference from § 381 that States cannot
regulate solicitation in a manner that might cause an out-of-state company to forfeit its tax
immunity—has no application in the present case. Because § 381 unquestionably does limit the
power of States to tax companies whose only in-state activity is "the solicitation of orders," our
task is simply to ascertain the fair meaning of that term. FMC Corp. v Holliday, 498 US _______ ,
_______ - _______ , 112 L Ed 2d 356 , 111 S Ct 403 (1990) .
Wisconsin views some courts as having adopted the position that an out-of-state company forfeits
its § 381 immunity if it engages in "any activity other than requesting the customer to purchase
the product." Brief for Petitioner 21; see also id., at 19, n 8 (citing Hervey v AMF Beaird, Inc., 250
Ark 147 , 464 SW2d 557 (1971) ; Clairol, Inc. v Kingsley, 109 NJ Super 22 , 262 A2d 213 ,
aff'd, 57 NJ 199, 270 A2d 702 (1970) , appeal dism'd, 402 US 902 , 28 L Ed 2d 643 , 91 S Ct
1377 (1971) ). 2 Arguably supporting this interpretation is subsection (c) of § 381, which expands
the immunity of subsection (a) when the out-of-state seller does its marketing though independent
contractors, to include not only solicitation of orders for sales, but also actual sales, and in
addition "the maintenance ... of an office ... by one or more independent contractors whose
activities ... consist solely of making sales, or soliciting orders for sales ...." 3 The plain implication
of this is that without that separate indulgence the maintenance of an office for the exclusive
purpose of conducting the exempted solicitation and sales would have provided a basis for
taxation—i.e., that the phrase "solicitation of orders" does not embrace the maintenance of an
office for the exclusive purpose of soliciting orders. Of course the phrase "solicitation of orders"
ought to be accorded a consistent meaning within the section, seeSorenson v Secretary of the
Treasury, 475 US 851 , 860, 89 L Ed 2d 855 , 106 S Ct 1600 (1986) , and if it does not embrace
maintaining an office for soliciting in subsection (c), it does not do so in subsection (a) either. One

might argue that the necessity of special permission for an office establishes that the phrase
"solicitation of orders" covers only the actual requests for purchases or, at most, the actions
absolutely essential to making those requests.
We think, however, that would be an unreasonable reading of the text. That the statutory phrase
uses the term "solicitation" in a more general sense that includes not merely the ultimate act of
inviting an order but the entire process associated with the invitation, is suggested by the fact that
§ 381 describes "the solicitation of orders" as a subcategory, not of in-state acts, but rather of in-
state "business activities"—a term that more naturally connotes courses of conduct. See
Webster's Third New International Dictionary 22 (1981) (defining "activity" as "an occupation,
pursuit, or recreation in which a person is active—often used in pl. <businessactivities>").
Moreover, limiting "solicitation of orders" to actual requests for purchases would reduce § 381(a)
(1) to a nullity. (It is obviously impossible to make a request without some accompanying action,
such as placing a phone call or driving a car to the customer's location.) And limiting it to acts
"essential" for making requests would engender endless uncertainty, contrary to the whole
purpose of the statute. (Is it "essential" to use a company car, or to take a taxi, in order to conduct
in-person solicitation? For that matter, is it "essential" to solicit in person?) It seems to us evident
that "solicitation of orders" embraces request-related activity that is not even, strictly speaking,
essential, or else it would not cover salesmen's driving on the State's roads, spending the night in
the State's hotels, or displaying within the State samples of their product. We hardly think the
statute had in mind only day-trips into the taxing jurisdiction by empty-handed drummers on foot.
SeeUnited States Tobacco Co. v Commonwealth, 478 Pa 125, 140 , 386 A2d 471, 478
("Congress could hardly have intended to exempt only walking solicitors"), cert denied, 439 US
880 , 58 L Ed 2d 193 , 99 S Ct 217 (1978) . And finally, this extremely narrow interpretation of
"solicitation" would cause § 381 to leave virtually unchanged the law that existed before its
enactment. Both Brown-Forman (where the salesman assisted wholesalers in obtaining suitable
displays for whiskey at retail stores) and International Shoe (where hotel rooms were used to
display shoes) would be decided as they were before, upholding the taxation.
[7a] At the other extreme, Wrigley urges that we adopt a broad interpretation of "solicitation"
which it describes as having been adopted by the Wisconsin Supreme Court based on that
court's reading of cases in Pennsylvania and New York, see 160 Wis 2d, at 82, 465 NW2d, at
811-812 (citing United States Tobacco Co. v Commonwealth, supra;Gillette Co. v State Tax

Comm'n, 56 App Div 2d 475, 393 NYS2d 186 (1977) , aff'd, 45 NY2d 846 , 382 NE2d 764
(1978) ). See alsoIndiana Dept. of Revenue v Kimberly-Clark Corp., 275 Ind 378, 384 , 416
NE2d 1264, 1268 (1981) . According to Wrigley, this would treat as "solicitation of orders" any
activities that are "ordinary and necessary 'business activities' accompanying the solicitation
process" or are "routinely associated with deploying a sales force to conduct the solicitation, so
long as there is no office, plant, warehouse or inventory in the State." Brief for Respondent 9, 19-
20; see also J. Hellerstein, State Taxation ¶ 6.11[2], p 245 (1983) ("solicitation ought to be held to
embrace other normal incidents of activities of salesmen" or the "customary functions of sales
representatives of out-of-state merchants"). We reject this "routinely-associated-with-solicitation"
or "customarily-performed-by-salesmen" approach, since it converts a standard embracing only a
particular activity ("solicitation") into a standard embracing all activities routinely conducted by
those who engage in that particular activity ("salesmen"). If, moreover, the approach were to be
applied (as respondent apparently intends) on an industry-by-industry basis, it would render the
limitations of § 381(a) toothless, permitting "solicitation of orders" to be whatever a particular
industry wants its salesmen to do. 4
In any case, we do not regard respondent's proposed approach to be an accurate
characterization of the Wisconsin Supreme Court's opinion. The Wisconsin court construed
"solicitation of orders" to reach only those activities that are "closely associated" with solicitation,
industry practice being only one factor to be considered in judging the "close[ness]" of the
connection between the challenged activity and the actual requests for orders. 160 Wis 2d, at 82,
465 NW2d, at 811-812. The problem with that standard, it seems to us, is that it merely
reformulates rather than answers the crucial question. "What constitutes the 'solicitation of
orders'?" becomes "What is 'closely related' to a solicitation request?" This fails to provide the
"[c]larity that would remove uncertainty" which we identified as the primary goal of § 381.
Heublein, 409 US, at 280, 34 L Ed 2d 472 , 93 S Ct 483 .
We proceed, therefore, to describe what we think the proper standard to be. Once it is
acknowledged, as we have concluded it must be, that "solicitation of orders" covers more than
what is strictly essential to making requests for purchases, the next (and perhaps the only other)
clear line is the one between those activities that are entirely ancillary to requests for purchases—
those that serve no independent business function apart from their connection to the soliciting of
orders—and those activities that the company would have reason to engage in anyway but

chooses to allocate to its in-state sales force. 5 Cf.National Tires, Inc. v Lindley, 68 Ohio App 2d
71, 78-79 , 426 NE2d 793, 798 (1980) (company's activities went beyond solicitation to
"functions more commonly related to maintaining an on-going business"). Providing a car and a
stock of free samples to salesmen is part of the "solicitation of orders," because the only reason
to do it is to facilitate requests for purchases. Contrariwise, employing salesmen to repair or
service the company's products is not part of the "solicitation of orders," since there is good
reason to get that done whether or not the company has a sales force. Repair and servicing may
help to increase purchases; but it is not ancillary to requesting purchases, and cannot be
converted into "solicitation" by merely being assigned to salesmen. See, e.g., Herff Jones Co. v
State Tax Comm'n, 247 Ore 404, 412 , 430 P2d 998, 1001-1002 (1967) (no § 381 immunity for
sales representatives' collection activities). 6
As we have discussed earlier, the text of the statute (the "office" exception in subsection (c))
requires one exception to this principle: Even if engaged in exclusively to facilitate requests for
purchases, the maintenance of an office within the State, by the company or on its behalf, would
go beyond the "solicitation of orders." We would not make any more generalized exception to our
immunity standard on the basis of the "office" provision. It seemingly represents a judgment that a
company office within a State is such a significant manifestation of company "presence" that,
absent a specific exemption, income taxation should always be allowed.Jantzen, Inc. v District of
Columbia, 395 A2d 29 , 32 (DC 1978) ; see generally Hellerstein, supra, ¶ 6.4.
Wisconsin urges us to hold that no post-sale activities can be included within the scope of
covered "solicitation." We decline to do so. Activities that take place after a sale will ordinarily not
be entirely ancillary in the sense we have described, see, e.g., Miles Laboratories v Department
of Revenue, 274 Ore 395, 400 , 546 P2d 1081, 1083 (1976) (replacing damaged goods), but we
are not prepared to say that will invariably be true. Moreover, the pre-sale/post-sale distinction is
hopelessly unworkable. Even if one disregards the confusion that may exist concerning when a
sale takes place, cf. Uniform Commercial Code § 2-401, 1A ULA 675 (1989), manufacturers and
distributors ordinarily have ongoing relationships that involve continuous sales, making it often
impossible to determine whether a particular incidental activity was related to the sale that
preceded it or the sale that followed it.
B

The Wisconsin Supreme Court also held that a company does not necessarily forfeit its tax
immunity under § 381 by performing some instate business activities that go beyond "solicitation
of orders"; rather, it said, "[c]ourts should also analyze" whether these additional activities were "
'deviations from the norm" ' or "de minimis activities." 160 Wis 2d, at 82, 465 NW2d, at 811
(citation omitted). Wisconsin asserts that the plain language of the statute bars this recognition of
a de minimis exception, because the immunity is limited to situations where "the only business
activities within [the] State" are those described, 15 USC § 381 [15 USCS § 381] (emphasis
added). This ignores the fact that the venerable maxim de minimis non curat lex ("the law cares
not for trifles") is part of the established background of legal principles against which all
enactments are adopted, and which all enactments (absent contrary indication) are deemed to
accept. See, e.g., Republic of Argentina v Weltover, Inc., 504 US_______ , _______ , 119 L Ed
2d 394 , 112 S Ct _______ , (1992) ; Hudson v McMillian, 503 US _______ ,, _______ ,, 117 L
Ed 2d 156 , 112 S Ct 995 (1992) ; Ingraham v Wright, 430 US 651 , 674, 51 L Ed 2d 711 , 97 S
Ct 1401 (1977) ; Abbott Laboratories v Portland Retail Druggists Assn., Inc., 425 US 1, 18, 47 L
Ed 2d 537 , 96 S Ct 1305 (1976) ;Industrial Assn. of San Francisco v United States, 268 US 64,
84 , 69 L Ed 849 , 45 S Ct 503 (1925) . It would be especially unreasonable to abandon normal
application of the de minimis principle in construing § 381, which operates in such stark, all-or-
nothing fashion: A company either has complete net-income tax immunity or it has none at all,
even for its solicitation activities. Wisconsin's reading of the statute renders a company liable for
hundreds of thousands of dollars in taxes if one of its salesmen sells a 10¢ 34 item in-state.
Finally, Wisconsin is wrong in asserting that application of the de minimis principle "excise[s] the
word 'only' from the statute." Brief for Petitioner 27. The word "only" places a strict limit upon the
categories of activities that are covered by § 381, not upon their substantiality. See, e. g.,Drackett
Prods. Co. v Conrad, 370 NW2d 723 , 726 (ND 1985); Kimberly Clark, 275 Ind, at 383-384, 416
NE2d, at 1268 .
Whether a particular activity is a de minimis deviation from a prescribed standard must, of course,
be determined with reference to the purpose of the standard. Section 381 was designed to
increase—beyond what Northwestern States suggested was required by the Constitution—the
connection that a company could have with a State before subjecting itself to tax. Accordingly,
whether in-state activity other than "solicitation of orders" is sufficiently de minimis to avoid loss of
the tax immunity conferred by § 381 depends upon whether that activity establishes a nontrivial
additional connection with the taxing State.

III
Wisconsin asserts that at least six activities performed by Wrigley within its borders went beyond
the "solicitation of orders": the replacement of stale gum by sales representatives; the supplying
of gum through "agency stock checks"; the storage of gum, racks, and promotional materials; the
rental of space for storage; the regional manager's recruitment, training, and evaluation of
employees; and the regional manager's intervention in credit disputes. 7 Since none of these
activities can reasonably be viewed as requests for orders covered by § 381, Wrigley was subject
to tax unless they were either ancillary to requesting orders or de minimis.
We conclude that the replacement of stale gum, the supplying of gum through "agency stock
checks," and the storage of gum were not ancillary. As to the first: Wrigley would wish to attend to
the replacement of spoiled product whether or not it employed a sales force. Because that activity
serves an independent business function quite separate from requesting orders, it does not
qualify for § 381 immunity. Miles Laboratories, 274 Ore, at 400, 546 P2d, at 1083. Although
Wrigley argues that gum replacement was a "promotional necessity" designed to ensure
continued sales, Brief for Respondent 31, it is not enough that the activity facilitatesales; it must
facilitate the requesting of sales, which this did not. 8
The provision of gum through "agency stock checks" presents a somewhat more complicated
question. It appears from the record that this activity occurred only in connection with the
furnishing of display racks to retailers, so that it was arguably ancillary to a form of consumer
solicitation. Section 381(a)(2) shields a manufacturer's "missionary" request that an indirect
customer (such as a consumer) place an order, if a successful request would ultimately result in
an order's being filled by a § 381 "customer" of the manufacturer, i.e., by the wholesaler who fills
the orders of the retailer with goods shipped to the wholesaler from out-of-state. Cf. Gillette, 56
App Div 2d, at 482, 393 NYS2d, at 191 ("Advice to retailers on the art of displaying goods to the
public can hardly be more thoroughly solicitation ..."). It might seem, therefore, that setting up
gum-filled display racks, like Wrigley's general advertising in Wisconsin, would be immunized by
§ 381(a)(2). What destroys this analysis, however, is the fact that Wrigley made the retailers pay
for the gum, thereby providing a business purpose for supplying the gum quite independent from
the purpose of soliciting consumers. Since providing the gum was not entirely ancillary to
requesting purchases, it was not within the scope of "solicitation of orders." 9 And because the