Argued Dec. 5, 1989.
Richard K. Greenberg, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, Atty. Gen. and Shelagh P. McClure, Asst. Atty. Gen., for appellant (defendant).
Christopher F. Droney, with whom was Michael L. Coyle, Hartford, for appellee (plaintiff).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.
[214 Conn. 293] GLASS, Associate Justice.
This is an appeal from a judgment of the Superior Court sustaining an appeal by the plaintiff, Cally Curtis Company (Curtis), from an assessment by the defendant, commissioner of revenue services (commissioner), of Connecticut sales and use tax for the review period of January 1, 1982, through May 31, 1985 (review period). We find no error.
The facts stipulated by the parties may be summarized as follows. Curtis is a California corporation engaged in the business of producing, selling, leasing and distributing industrial films and videotapes (films) for personnel training purposes. In late 1985, the commissioner, acting through his representative, conducted a review of the books and records of Curtis for the period of January 1, 1982, through May 31, 1985. As a result of the review, the commissioner, pursuant to General Statutes § 12-411, 
assessed a Connecticut use [214 Conn. 294] tax liability against Curtis in the amount of $5020.40 plus interest and penalty with respect to certain rentals and sales of films by Curtis to customers in Connecticut.
[214 Conn. 295] During the review period, Curtis was engaged in the sale and rental of its films to customers in Connecticut. None of the rentals exceeded three days. Some of the sales and rentals resulted from preview transactions in which customers were allowed to examine films for three days Before deciding whether to purchase or rent them for training purposes.  During the
review period, the gross receipts for sales, rentals for training purposes and previews to customers in Connecticut were as follows:
[214 Conn. 296] For the review period, Curtis marketed its sales and rentals in Connecticut only through: (a) trade shows held in states other than Connecticut, at which catalogs were distributed to patrons; (b) mailing lists; and (c) referrals. Catalogs were mailed to Connecticut customers identified on mailing lists or by referrals. Curtis did not utilize the services of any (a) salesmen, personnel or independent representatives in or visiting Connecticut, (b) own or rent offices or warehouses, or any inventory, in Connecticut, or (c) advertise by newspaper, radio or television in Connecticut. A Connecticut customer who wished to order a film from Curtis would have had to complete a purchase or rental order for the film and have sent it to Curtis at its California offices for acceptance in California. In addition, all deliveries and returns of films to and from customers in Connecticut, by sale or rental, were made by common carrier or the United States mail. Curtis had no telephone in Connecticut, nor any property in Connecticut other than the films previewed or rented, and Curtis did not visit its customers in Connecticut.
By way of letters dated December 21, 1985, and January 29, 1986, Curtis duly protested and appealed the assessment with the department of revenue services. On May 27, 1986, the commissioner issued a final determination letter in which he ruled that the assessment was proper and, therefore, denied Curtis' appeal. Curtis then appealed the commissioner's final determination to the Superior Court pursuant to General Statutes § 12-422. Before the trial court, Curtis claimed that the commissioner "wrongfully assessed sales or [214 Conn. 297] use tax against [it] because it [did] not have the level of contacts or nexus with Connecticut necessary to tax a foreign corporation; and it contends that without such contacts or nexus, the tax assessed against it by the commissioner violates the Due Process and Commerce Clauses." Conversely, the commissioner contended that "personal property within a taxing state is a sufficient nexus between the taxing state and the entity being taxed to satisfy due process; [and] that Curtis is leasing and thus maintaining films and videotapes, which are personal property, within Connecticut." The trial court sustained Curtis' appeal, stating that "the presence in Connecticut of Curtis' films which are then being leased to its customers in Connecticut is not the kind of 'property within [the taxing] State ...' which constitutes a nexus sufficient to satisfy Constitutional requirements." The commissioner then appealed the judgment of the trial court to the Appellate Court and we thereafter transferred the case to ourselves pursuant to Practice Book § 4023.
On appeal, the commissioner argues that the trial court erred in ruling that there was an insufficient nexus between Curtis and the state of Connecticut to subject Curtis to the Connecticut use tax. We disagree. Not every out-of-state seller can be held liable for obtaining payment for use tax without a constitutional violation occurring. Such a collection burden when placed upon an out-of-state seller triggers due process concerns as well as imposes a restraint upon interstate commerce. See National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 756, 87 S.Ct. 1389, 1391, 18 L.Ed.2d 505 (1967); L.L. Bean, Inc. v. Department of Revenue, 101 Pa.Cmwlth. 435, 516 A.2d 820, 824 (1986).
In determining whether a state tax comports with constitutional due process requirements, the United States Supreme Court has stated that the " 'simple but controlling question is whether the state has given anything[214 Conn. 298] for which it can ask return.' " National Bellas Hess, Inc. v. Department of Revenue, supra, quoting Wisconsin v. J.C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 250, 85 L.Ed. 267 (1940). In regard to the question of restraint on interstate commerce, the United States Supreme Court has held that " '[s]tate taxation falling on interstate commerce ... can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys.' " National Bellas Hess, Inc. v. Department of Revenue, supra, quoting Freeman v. Hewit, 329 U.S. 249, 253, 67 S.Ct. 274, 277, 91 L.Ed. 265 (1946). Accordingly, when examining the constitutionality of imposing the duty of collection of a use tax upon an out-of-state seller, the relevant legal inquiry is whether there exists " 'some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.' " National Bellas Hess, Inc. v. Department of Revenue, ...