Bill Text: FL S0316 | 2013 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Taxes

Spectrum: Bipartisan Bill

Status: (Failed) 2013-05-03 - Died in Appropriations, companion bill(s) passed, see CS/CS/HB 7007 (Ch. 2013-39) [S0316 Detail]

Download: Florida-2013-S0316-Introduced.html

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       Florida Senate - 2013                                     SB 316
       
       
       
       By Senator Detert
       
       
       
       
       28-00311A-13                                           2013316__
    1                        A bill to be entitled                      
    2         An act relating to the tax on sales, use, and other
    3         transactions; amending s. 212.0596, F.S.; revising the
    4         term “mail order sale” to specifically include sales
    5         of tangible personal property ordered through the
    6         Internet; deleting certain provisions that specify
    7         dealer activities or other circumstances that subject
    8         mail order sales to this state’s power to levy and
    9         collect the sales and use tax; providing that certain
   10         persons who make mail order sales and who have a
   11         substantial nexus with this state are subject to this
   12         state’s power to levy and collect the sales and use
   13         tax when they engage in certain enumerated activities;
   14         specifying that dealers are not required to collect
   15         and remit sales and use tax unless certain
   16         circumstances exist; creating a rebuttable presumption
   17         that a dealer is subject to the state’s power to levy
   18         and collect the sales or use tax under specified
   19         circumstances; specifying evidentiary proof that may
   20         be submitted to rebut the presumption; amending s.
   21         212.06, F.S.; revising the definition of the term
   22         “dealer”; providing an effective date.
   23  
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Section 212.0596, Florida Statutes, is amended
   27  to read:
   28         212.0596 Taxation of mail order sales.—
   29         (1) For purposes of this chapter, a “mail order sale” is a
   30  sale of tangible personal property, ordered by mail, the
   31  Internet, or other means of communication, from a dealer who
   32  receives the order in another state of the United States, or in
   33  a commonwealth, territory, or other area under the jurisdiction
   34  of the United States, and transports the property or causes the
   35  property to be transported, whether or not by mail, from any
   36  jurisdiction of the United States, including this state, to a
   37  person in this state, including the person who ordered the
   38  property.
   39         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
   40  mail order sale is subject to the power of this state to levy
   41  and collect the tax imposed by this chapter if when:
   42         (a) The dealer is a corporation doing business under the
   43  laws of this state or is a person domiciled in, a resident of,
   44  or a citizen of, this state;
   45         (b) The dealer maintains retail establishments or offices
   46  in this state, whether the mail order sales thus subject to
   47  taxation by this state result from or are related in any other
   48  way to the activities of such establishments or offices;
   49         (c) The dealer has agents or representatives in this state
   50  who solicit business or transact business on behalf of the
   51  dealer, whether the mail order sales thus subject to taxation by
   52  this state result from or are related in any other way to such
   53  solicitation or transaction of business, except that a printer
   54  who mails or delivers for an out-of-state print purchaser
   55  material the printer printed for it is shall not be deemed to be
   56  the print purchaser’s agent or representative for purposes of
   57  this paragraph;
   58         (d) The property was delivered in this state in fulfillment
   59  of a sales contract that was entered into in this state, in
   60  accordance with applicable conflict of laws rules, when a person
   61  in this state accepted an offer by ordering the property;
   62         (e) The dealer, by purposefully or systematically
   63  exploiting the market provided by this state by any media
   64  assisted, media-facilitated, or media-solicited means,
   65  including, but not limited to, direct mail advertising,
   66  unsolicited distribution of catalogs, computer-assisted
   67  shopping, television, radio, or other electronic media, or
   68  magazine or newspaper advertisements or other media, creates
   69  nexus with this state;
   70         (f) Through compact or reciprocity with another
   71  jurisdiction of the United States, that jurisdiction uses its
   72  taxing power and its jurisdiction over the retailer in support
   73  of this state’s taxing power;
   74         (d)(g) The dealer consents, expressly or by implication, to
   75  the imposition of the tax imposed by this chapter;
   76         (h) The dealer is subject to service of process under s.
   77  48.181;
   78         (e)(i) The dealer’s mail order sales are subject to the
   79  power of this state to tax sales or to require the dealer to
   80  collect use taxes pursuant to federal law under a statute or
   81  statutes of the United States;
   82         (f)(j) The dealer owns real property or tangible personal
   83  property that is physically in this state, except that a dealer
   84  whose only property, (including property owned by an affiliate,)
   85  in this state is located at the premises of a printer with which
   86  the vendor has contracted for printing, and is either a final
   87  printed product, or property that which becomes a part of the
   88  final printed product, or property from which the printed
   89  product is produced, is not deemed to own such property for
   90  purposes of this paragraph;
   91         (g)(k) A person, other than a person acting in the capacity
   92  of a common carrier, The dealer, while not having nexus with
   93  this state on any of the bases described in paragraphs (a)-(j)
   94  or paragraph (l), is a corporation that is a member of an
   95  affiliated group of corporations, as defined in s. 1504(a) of
   96  the Internal Revenue Code, whose members are includable under s.
   97  1504(b) of the Internal Revenue Code and whose members are
   98  eligible to file a consolidated tax return for federal corporate
   99  income tax purposes and any parent or subsidiary corporation in
  100  the affiliated group has a substantial nexus with this state
  101  and:
  102         1. Sells a similar line of products as the dealer and does
  103  so under the same or a similar business name;
  104         2. Maintains an office, distribution facility, warehouse,
  105  storage place, or similar place of business in this state to
  106  facilitate the delivery of property or services sold by the
  107  dealer to the dealer’s customers;
  108         3. Uses trademarks, service marks, or trade names in this
  109  state which are the same or substantially similar to those used
  110  by the dealer;
  111         4. Delivers, installs, assembles, or performs maintenance
  112  services for the dealer’s customers in this state;
  113         5. Facilitates the dealer’s delivery of property to
  114  customers in this state by allowing the dealer’s customers to
  115  pick up property sold by the dealer at an office, distribution
  116  facility, warehouse, storage place, or similar place of business
  117  maintained by the person in this state; or
  118         6. Conducts any other activities in this state which are
  119  significantly associated with the dealer’s ability to establish
  120  and maintain a market in this state for the dealer’s sales on
  121  one or more of the bases described in paragraphs (a)-(j) or
  122  paragraph (l); or
  123         (h)(l) The dealer or the dealer’s activities have
  124  sufficient connection with or relationship to this state or its
  125  residents of some type other than those described in paragraphs
  126  (a)-(g) (a)-(k) to create a nexus empowering this state to tax
  127  its mail order sales or to require the dealer to collect sales
  128  tax or accrue use tax.
  129  
  130  Notwithstanding other provisions of law, a dealer is not
  131  required to collect and remit sales or use tax under this
  132  subsection unless the dealer has a physical presence in this
  133  state or the activities conducted in this state on the dealer’s
  134  behalf are significantly associated with the dealer’s ability to
  135  establish and maintain a market for sales in this state.
  136         (3)(a) Notwithstanding other provisions of law or this
  137  section, there is a rebuttable presumption that every dealer, as
  138  defined in s. 212.06, who makes a mail order sale is also
  139  subject to the power of this state to levy and collect the tax
  140  imposed by this chapter if the dealer enters into an agreement
  141  with one or more residents of this state under which the
  142  resident, for a commission or other consideration, directly or
  143  indirectly refers potential customers, whether by a link on an
  144  Internet website, an in-person oral presentation, telemarketing,
  145  or otherwise, to the dealer, if the cumulative gross receipts
  146  from sales by the dealer to customers in this state who are
  147  referred to the dealer by all residents having this type of an
  148  agreement with the dealer is in excess of $10,000 during the 12
  149  months immediately before the rebuttable presumption arose.
  150         (b) The presumption in paragraph (a) may be rebutted by the
  151  submission of evidence proving that the residents with whom the
  152  dealer has an agreement did not engage in any activity within
  153  this state which was significantly associated with the dealer’s
  154  ability to establish or maintain the dealer’s market in this
  155  state during the 12 months immediately before the rebuttable
  156  presumption arose. The evidence may consist of sworn affidavits,
  157  obtained and given in good faith, from each resident with whom
  158  the dealer has an agreement attesting that he or she did not
  159  engage in any solicitation in this state on the dealer’s behalf
  160  during the previous year.
  161         (4)(3) A Every dealer engaged in the business of making
  162  mail order sales is subject to the requirements of this chapter
  163  for cooperation of dealers in collection of taxes and in
  164  administration of this chapter, except that a no fee may not
  165  shall be imposed upon such dealer for carrying out any required
  166  activity.
  167         (5)(4) The department shall, with the consent of another
  168  jurisdiction of the United States whose cooperation is needed,
  169  enforce this chapter in that jurisdiction, either directly or,
  170  at the option of that jurisdiction, through its officers or
  171  employees.
  172         (6)(5) The tax required under this section to be collected
  173  and any amount unreturned to a purchaser which that is not tax
  174  but was collected from the purchaser under the representation
  175  that it was tax constitute funds of this the state of Florida
  176  from the moment of collection.
  177         (7)(6) Notwithstanding other provisions of law, a dealer
  178  who makes a mail order sale in this state is exempt from
  179  collecting and remitting any local option surtax on the sale,
  180  unless the dealer is located in a county that imposes a surtax
  181  within the meaning of s. 212.054(3)(a), the order is placed
  182  through the dealer’s location in such county, and the property
  183  purchased is delivered into such county or into another county
  184  in this state which that levies the surtax, in which case the
  185  provisions of s. 212.054(3)(a) are applicable.
  186         (8)(7) The department may establish by rule procedures for
  187  collecting the use tax from unregistered persons who but for
  188  their mail order purchases would not be required to remit sales
  189  or use tax directly to the department. The procedures may
  190  provide for waiver of registration and registration fees,
  191  provisions for irregular remittance of tax, elimination of the
  192  collection allowance, and nonapplication of local option
  193  surtaxes.
  194         Section 2. Subsection (2) of section 212.06, Florida
  195  Statutes, is amended to read:
  196         212.06 Sales, storage, use tax; collectible from dealers;
  197  “dealer” defined; dealers to collect from purchasers;
  198  legislative intent as to scope of tax.—
  199         (2)(a) The term “dealer,” as used in this chapter, means a
  200  includes every person who:
  201         (a) Manufactures or produces tangible personal property for
  202  sale at retail; for use, consumption, or distribution; or for
  203  storage to be used or consumed in this state.
  204         (b) The term “dealer” is further defined to mean every
  205  person, as used in this chapter, who Imports, or causes to be
  206  imported, tangible personal property from any state or foreign
  207  country for sale at retail; for use, consumption, or
  208  distribution; or for storage to be used or consumed in this
  209  state.
  210         (c) The term “dealer” is further defined to mean every
  211  person, as used in this chapter, who Sells at retail or who
  212  offers for sale at retail, or who has in his or her possession
  213  for sale at retail; or for use, consumption, or distribution; or
  214  for storage to be used or consumed in this state, tangible
  215  personal property as defined herein, including a retailer who
  216  transacts a mail order sale.
  217         (d) The term “dealer” is further defined to mean any person
  218  who Has sold at retail; or used, or consumed, or distributed; or
  219  stored for use or consumption in this state, tangible personal
  220  property and who cannot prove that the tax levied by this
  221  chapter has been paid on the sale at retail, the use, the
  222  consumption, the distribution, or the storage of such tangible
  223  personal property. However, The term “dealer” does not include
  224  mean a person who is not a “dealer” as otherwise defined in
  225  under the definition of any other paragraph of this subsection
  226  and whose only owned or leased property, (including property
  227  owned or leased by an affiliate,) in this state is located at
  228  the premises of a printer with which it has contracted for
  229  printing, if such property consists of the final printed
  230  product, property which becomes a part of the final printed
  231  product, or property from which the printed product is produced.
  232         (e) The term “dealer” is further defined to mean any
  233  person, as used in this chapter, who Leases or rents tangible
  234  personal property, as defined in this chapter, for a
  235  consideration, permitting the use or possession of such property
  236  without transferring title thereto, except as expressly provided
  237  in this chapter for to the contrary herein.
  238         (f) The term “dealer” is further defined to mean any
  239  person, as used in this chapter, who Maintains or uses has
  240  within this state, directly or by a subsidiary, an office,
  241  distributing house, salesroom, or house, warehouse, or other
  242  place of business operated by any person other than a common
  243  carrier acting in the capacity of a common carrier.
  244         (g) “Dealer” also means and includes every person who
  245  Solicits business either by direct representatives, indirect
  246  representatives, or manufacturers’ agents; by distribution of
  247  catalogs or other advertising matter; or by any other means
  248  whatsoever, and by reason thereof receives orders for tangible
  249  personal property from consumers for use, consumption,
  250  distribution, and storage for use or consumption in the state.;
  251  Such dealer shall collect the tax imposed by this chapter from
  252  the purchaser, and no action, either in law or in equity, on a
  253  sale or transaction as provided by the terms of this chapter may
  254  be had in this state by any such dealer unless it is
  255  affirmatively shown that the provisions of this chapter have
  256  been fully complied with.
  257         (h) “Dealer” also means and includes every person who, As a
  258  representative, agent, or solicitor of an out-of-state principal
  259  or principals, solicits, receives, and accepts orders from
  260  consumers in the state for future delivery and whose principal
  261  refuses to register as a dealer.
  262         (i) Constitutes “Dealer” also means and includes the state
  263  or any, county, municipality, district any political
  264  subdivision, agency, bureau, or department, or other state or
  265  local governmental instrumentality.
  266         (j) The term “dealer” is further defined to mean any person
  267  who Leases, or grants a license to use, occupy, or enter upon,
  268  living quarters, sleeping or housekeeping accommodations in
  269  hotels, apartment houses, roominghouses, tourist or trailer
  270  camps, real property, space or spaces in parking lots or garages
  271  for motor vehicles, docking or storage space or spaces for boats
  272  in boat docks or marinas, or tie-down or storage space or spaces
  273  for aircraft at airports. The term includes “dealer” also means
  274  any person who has leased, occupied, or used or was entitled to
  275  use any living quarters, sleeping or housekeeping accommodations
  276  in hotels, apartment houses, roominghouses, tourist or trailer
  277  camps, real property, space or spaces in parking lots or garages
  278  for motor vehicles, or docking or storage space or spaces for
  279  boats in boat docks or marinas, or who has purchased
  280  communication services or electric power or energy, and who
  281  cannot prove that the tax levied by this chapter has been paid
  282  to the vendor or lessor on any such transactions. The term
  283  “dealer” does not include a any person who leases, lets, rents,
  284  or grants a license to use, occupy, or enter upon any living
  285  quarters, sleeping quarters, or housekeeping accommodations in
  286  apartment houses, roominghouses, tourist camps, or trailer
  287  camps, and who exclusively enters into a bona fide written
  288  agreement for continuous residence for longer than 6 months in
  289  duration with a any person who leases, lets, rents, or is
  290  granted a license to use such property.
  291         (k) “Dealer” also means any person who Sells, provides, or
  292  performs a service taxable under this chapter. The term includes
  293  a “Dealer” also means any person who purchases, uses, or
  294  consumes a service taxable under this chapter who cannot prove
  295  that the tax levied by this chapter has been paid to the seller
  296  of the taxable service.
  297         (l) “Dealer” also means any person who Solicits, offers,
  298  provides, enters into, issues, or delivers any service warranty
  299  taxable under this chapter, or who receives, on behalf of such a
  300  person, any consideration from a service warranty holder.
  301         Section 3. This act shall take effect July 1, 2013.
  302