Bill Text: MI HB4540 | 2019-2020 | 100th Legislature | Enrolled
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-Enrolled.html
state of michigan
100th Legislature
Regular session of 2019
Introduced by Reps. Afendoulis, Webber, Tate and Yancey
ENROLLED HOUSE BILL No. 4540
AN ACT to amend
1933 PA 167, entitled “An act to provide for the raising of additional public
revenue by prescribing certain specific taxes, fees, and charges to be paid to
the state for the privilege of engaging in certain business activities; to
provide, incident to the enforcement thereof, for the issuance of licenses to
engage in such occupations; to provide for the ascertainment, assessment and
collection thereof; to appropriate the proceeds thereof; and to prescribe
penalties for violations of the provisions of this 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.
This act is ordered to take immediate effect.
Clerk of the House of Representatives
Secretary of the Senate
Approved___________________________________________
____________________________________________________
Governor
