City of Boulder v. Leanin' Tree, Inc.

I agree with the majority that we should apply a multi-factor or totality-of-the-cireum-stances test to determine whether the transaction involved here is the sale or use of tangible personal property under the Boulder ordinance. I also agree that in applying the test, we should apply a practical, common sense understanding to determine the nature of the transaction. This is the approach advocated by 2 Jerome R. Hellerstein & Walter Hellerstein, State Taxation, I 12.08[2] (3d ed.2002). As the authors point out, courts will have to untangle transactions that have both tangible and intangible…