Bill Text: MI HB4540 | 2019-2020 | 100th Legislature | Engrossed
Bill Title: Sales tax; other; nexus of marketplace facilitators; clarify. Amends 1933 PA 167 (MCL 205.51 - 205.78) by adding sec. 2d.
Spectrum: Bipartisan Bill
Status: (Passed) 2019-12-19 - Assigned Pa 143'19 With Immediate Effect [HB4540 Detail]
Download: Michigan-2019-HB4540-Engrossed.html
Substitute For
HOUSE BILL NO. 4540
A bill to amend 1933 PA 167, entitled
"General sales tax act,"
(MCL 205.51 to 205.78) by adding section 2d.
The people of the state of michigan enact:
Sec. 2d. (1) Notwithstanding anything to the contrary in this act, a marketplace facilitator engaged in the business of making sales at retail of tangible personal property in this state shall remit the tax due under this act on all taxable sales made by the marketplace facilitator or facilitated for marketplace sellers to a purchaser in this state regardless of whether the marketplace seller for whom sales are facilitated has nexus with this state.
(2) A marketplace facilitator is a person engaged in the business of making sales at retail for purposes of this act regardless of whether the marketplace facilitator makes only facilitated sales for marketplace sellers or a combination of direct and facilitated sales and has all the rights and duties of a taxpayer under this act.
(3) A marketplace facilitator shall report its direct sales and the sales it facilitates to purchasers in this state in a manner as prescribed by the department.
(4) A class action shall not be brought against a marketplace facilitator in any court of this state on behalf of purchasers arising from or in any way related to an overpayment of sales tax remitted on sales facilitated by the marketplace facilitator, regardless of whether that claim is characterized as a tax refund claim. Nothing in this subsection affects a purchaser's right to seek a refund as provided under section 12.
(5) Nothing in this section affects the obligation of a purchaser to remit use tax under the use tax act, 1937 PA 94, MCL 205.91 to 205.111, for a taxable transaction on which a marketplace facilitator or marketplace seller does not remit sales tax.
(6) Except as otherwise provided in this subsection, if a marketplace facilitator is required to remit tax under subsection (1), the department shall audit only the marketplace facilitator for sales made by marketplace sellers that were facilitated by the marketplace facilitator. The department shall not audit a marketplace seller for sales facilitated by a marketplace facilitator required to remit tax under subsection (1) unless the marketplace seller fails to provide the marketplace facilitator with sufficient information to the extent that the marketplace facilitator is not liable under subsection (7).
(7) A marketplace facilitator is relieved of liability under this section for failure to remit the correct amount of tax to the extent that the marketplace facilitator demonstrates, to the satisfaction of the department, that the failure was due to incorrect or insufficient information given to the marketplace facilitator by the marketplace seller. The relief under this subsection does not apply if the marketplace seller is an affiliate of the marketplace facilitator.
(8) A marketplace facilitator is relieved of liability under this section if the marketplace facilitator demonstrates, to the satisfaction of the department, that the tax levied under this act on a sale facilitated by the marketplace facilitator was paid to the department by the marketplace seller or provides a claim of exemption provided by the marketplace seller's purchaser.
(9) A marketplace seller is not liable for the tax imposed by this act on sales made through a marketplace facilitator required to remit tax under subsection (1) unless the marketplace seller fails to provide the marketplace facilitator with sufficient information to the extent that the marketplace facilitator is not liable under subsection (7).
(10) This section applies regardless of whether the marketplace facilitator has a physical presence in this state.
(11) As used in this section:
(a) "Affiliate" means an affiliated person as that term is defined in section 2b.
(b) "Marketplace facilitator" means a person that meets the requirements of subparagraph (i), but does not include a person described in subparagraph (ii):
(i) A person is a marketplace facilitator if the person facilitates a retail sale by a marketplace seller by listing or advertising for sale by a marketplace seller in a marketplace, tangible personal property and either directly or indirectly through agreements or arrangements with third parties or its affiliates collecting payment from the customer and transmitting that payment to the marketplace seller for consideration.
(ii) Marketplace facilitator does not include a person who operates a platform or forum that provides internet, print, electronic, or any other form of advertising services, including listing tangible personal property for sale, if the person does not also engage directly or indirectly, through 1 or more affiliates, in the activities described in subparagraph (i).
(c) "Marketplace seller" means a person that makes retail sales through a physical or electronic marketplace operated by a marketplace facilitator.
Enacting section 1. As provided in section 5 of 1846 RS 1, MCL 8.5, this amendatory act is severable.
Enacting section 2. This amendatory act takes effect January 1, 2020. An obligation to collect sales tax under this amendatory act does not apply retroactively.
