Florida Senate - 2012                                    SB 1514
       
       
       
       By Senator Detert
       
       
       
       
       23-01269-12                                           20121514__
    1                        A bill to be entitled                      
    2         An act relating to the tax on sales, use, and other
    3         transactions; amending s. 212.06, F.S.; revising the
    4         definition of the term “dealer” for purposes relating
    5         to the collection of the tax on sales, use, and other
    6         transactions; declaring void certain rulings,
    7         agreements, or contracts that maintain certain persons
    8         are not dealers required to collect sales and use tax
    9         in this state unless the Legislature approves the
   10         ruling, agreement, or contract by a specified vote of
   11         each house; defining the term “affiliated person”;
   12         amending s. 212.0596, F.S.; revising the term “mail
   13         order sale” to specifically include sales of tangible
   14         personal property ordered by Internet; deleting
   15         certain provisions that specify dealer activities or
   16         other circumstances that subject mail order sales to
   17         this state’s power to levy and collect the sales and
   18         use tax; providing that certain persons who make mail
   19         order sales and who have a substantial nexus with this
   20         state are subject to this state’s power to levy and
   21         collect the sales and use tax when they engage in
   22         certain enumerated activities; specifying that dealers
   23         are not required to collect and remit sales and use
   24         tax unless certain circumstances exist; creating a
   25         rebuttable presumption that a dealer is subject to the
   26         state’s power to levy and collect the sales or use tax
   27         under specified circumstances; specifying evidentiary
   28         proof that may be submitted to rebut the presumption;
   29         amending s. 212.0506, F.S.; conforming a cross
   30         reference; providing an effective date.
   31  
   32  Be It Enacted by the Legislature of the State of Florida:
   33  
   34         Section 1. Subsection (2) of section 212.06, Florida
   35  Statutes, is amended to read:
   36         212.06 Sales, storage, use tax; collectible from dealers;
   37  “dealer” defined; dealers to collect from purchasers;
   38  legislative intent as to scope of tax.—
   39         (2)(a) The term “dealer,” as used in this chapter, means
   40  any includes every person who:
   41         1. Manufactures or produces tangible personal property for
   42  sale at retail; for use, consumption, or distribution; or for
   43  storage to be used or consumed in this state.
   44         2.(b)The term “dealer” is further defined to mean every
   45  person, as used in this chapter, who Imports, or causes to be
   46  imported, tangible personal property from any state or foreign
   47  country for sale at retail; for use, consumption, or
   48  distribution; or for storage to be used or consumed in this
   49  state.
   50         3.(c)The term “dealer” is further defined to mean every
   51  person, as used in this chapter, who Sells at retail or who
   52  offers for sale at retail, or who has in his or her possession
   53  for sale at retail; or for use, consumption, or distribution; or
   54  for storage to be used or consumed in this state, tangible
   55  personal property as defined herein, including a retailer who
   56  transacts a mail order sale.
   57         4.(d)The term “dealer” is further defined to mean any
   58  person who Has sold at retail; or used, or consumed, or
   59  distributed; or stored for use or consumption in this state,
   60  tangible personal property and who cannot prove that the tax
   61  levied by this chapter has been paid on the sale at retail, the
   62  use, the consumption, the distribution, or the storage of such
   63  tangible personal property. However, The term “dealer” does not
   64  include mean a person who is not a “dealer” as otherwise defined
   65  in under the definition of any other paragraph of this
   66  subsection and whose only owned or leased property (including
   67  property owned or leased by an affiliate) in this state is
   68  located at the premises of a printer with which it has
   69  contracted for printing, if such property consists of the final
   70  printed product, property which becomes a part of the final
   71  printed product, or property from which the printed product is
   72  produced.
   73         5.(e)The term “dealer” is further defined to mean any
   74  person, as used in this chapter, who Leases or rents tangible
   75  personal property, as defined in this chapter, for a
   76  consideration, permitting the use or possession of such property
   77  without transferring title thereto, except as expressly provided
   78  for to the contrary in this chapter herein.
   79         6.(f)The term “dealer” is further defined to mean any
   80  person, as used in this chapter, who Maintains or uses has
   81  within this state, directly or by a subsidiary, an office,
   82  distributing house, salesroom, or house, warehouse, or other
   83  place of business operated by any person other than a common
   84  carrier acting in the capacity of a common carrier.
   85         (g) “Dealer” also means and includes every person who
   86  solicits business either by direct representatives, indirect
   87  representatives, or manufacturers’ agents; by distribution of
   88  catalogs or other advertising matter; or by any other means
   89  whatsoever, and by reason thereof receives orders for tangible
   90  personal property from consumers for use, consumption,
   91  distribution, and storage for use or consumption in the state;
   92  such dealer shall collect the tax imposed by this chapter from
   93  the purchaser, and no action, either in law or in equity, on a
   94  sale or transaction as provided by the terms of this chapter may
   95  be had in this state by any such dealer unless it is
   96  affirmatively shown that the provisions of this chapter have
   97  been fully complied with.
   98         7.(h)“Dealer” also means and includes every person who, As
   99  a representative, agent, or solicitor of an out-of-state
  100  principal or principals, solicits, receives, and accepts orders
  101  from consumers in the state for future delivery and whose
  102  principal refuses to register as a dealer.
  103         8.(i)Constitutes “Dealer” also means and includes the
  104  state or any, county, municipality, district any political
  105  subdivision, agency, bureau, or department, or other state or
  106  local governmental instrumentality.
  107         9.(j)The term “dealer” is further defined to mean any
  108  person who Leases, or grants a license to use, occupy, or enter
  109  upon, living quarters, sleeping or housekeeping accommodations
  110  in hotels, apartment houses, roominghouses, tourist or trailer
  111  camps, real property, space or spaces in parking lots or garages
  112  for motor vehicles, docking or storage space or spaces for boats
  113  in boat docks or marinas, or tie-down or storage space or spaces
  114  for aircraft at airports. The term includes “dealer” also means
  115  any person who has leased, occupied, or used or was entitled to
  116  use any living quarters, sleeping or housekeeping accommodations
  117  in hotels, apartment houses, roominghouses, tourist or trailer
  118  camps, real property, space or spaces in parking lots or garages
  119  for motor vehicles, or docking or storage space or spaces for
  120  boats in boat docks or marinas, or who has purchased
  121  communication services or electric power or energy, and who
  122  cannot prove that the tax levied by this chapter has been paid
  123  to the vendor or lessor on any such transactions. The term
  124  “dealer” does not include any person who leases, lets, rents, or
  125  grants a license to use, occupy, or enter upon any living
  126  quarters, sleeping quarters, or housekeeping accommodations in
  127  apartment houses, roominghouses, tourist camps, or trailer
  128  camps, and who exclusively enters into a bona fide written
  129  agreement for continuous residence for longer than 6 months in
  130  duration with any person who leases, lets, rents, or is granted
  131  a license to use such property.
  132         10.(k)“Dealer” also means any person who Sells, provides,
  133  or performs a service taxable under this chapter. The term
  134  includes “Dealer” also means any person who purchases, uses, or
  135  consumes a service taxable under this chapter who cannot prove
  136  that the tax levied by this chapter has been paid to the seller
  137  of the taxable service.
  138         11.(l)“Dealer” also means any person who Solicits, offers,
  139  provides, enters into, issues, or delivers any service warranty
  140  taxable under this chapter, or who receives, on behalf of such a
  141  person, any consideration from a service warranty holder.
  142         (b) Any ruling, agreement, or contract, whether written or
  143  oral, express or implied, between a person and the executive
  144  branch of this state, or any other agency or department of this
  145  state, stating, agreeing, or ruling that the person is not a
  146  “dealer” required to collect sales and use tax in this state
  147  despite the presence of a warehouse, distribution center, or
  148  fulfillment center in this state that is owned or operated by
  149  the person or an affiliated person is void unless it is
  150  specifically approved by a majority vote of each house of the
  151  Legislature. As used in this paragraph, the term “affiliated
  152  person” means any person that is a member of the same
  153  “controlled group of corporations” as defined in s. 1563(a) of
  154  the Internal Revenue Code as the dealer or any other entity
  155  that, notwithstanding its form of organization, bears the same
  156  ownership relationship to the dealer as a corporation that is a
  157  member of the same “controlled group of corporations” as defined
  158  in s. 1563(a) of the Internal Revenue Code.
  159         Section 2. Section 212.0596, Florida Statutes, is amended
  160  to read:
  161         212.0596 Taxation of mail order sales.—
  162         (1) For purposes of this chapter, a “mail order sale” is a
  163  sale of tangible personal property, ordered by mail, Internet,
  164  or other means of communication, from a dealer who receives the
  165  order in another state of the United States, or in a
  166  commonwealth, territory, or other area under the jurisdiction of
  167  the United States, and transports the property or causes the
  168  property to be transported, whether or not by mail, from any
  169  jurisdiction of the United States, including this state, to a
  170  person in this state, including the person who ordered the
  171  property.
  172         (2) Every dealer as defined in s. 212.06(2)(a)3.
  173  212.06(2)(c) who makes a mail order sale is subject to the power
  174  of this state to levy and collect the tax imposed by this
  175  chapter when:
  176         (a) The dealer is a corporation doing business under the
  177  laws of this state or is a person domiciled in, a resident of,
  178  or a citizen of, this state;
  179         (b) The dealer maintains retail establishments or offices
  180  in this state, whether the mail order sales thus subject to
  181  taxation by this state result from or are related in any other
  182  way to the activities of such establishments or offices;
  183         (c) The dealer has agents or representatives in this state
  184  who solicit business or transact business on behalf of the
  185  dealer, whether the mail order sales thus subject to taxation by
  186  this state result from or are related in any other way to such
  187  solicitation or transaction of business, except that a printer
  188  who mails or delivers for an out-of-state print purchaser
  189  material the printer printed for it is shall not be deemed to be
  190  the print purchaser’s agent or representative for purposes of
  191  this paragraph;
  192         (d) The property was delivered in this state in fulfillment
  193  of a sales contract that was entered into in this state, in
  194  accordance with applicable conflict of laws rules, when a person
  195  in this state accepted an offer by ordering the property;
  196         (e) The dealer, by purposefully or systematically
  197  exploiting the market provided by this state by any media
  198  assisted, media-facilitated, or media-solicited means,
  199  including, but not limited to, direct mail advertising,
  200  unsolicited distribution of catalogs, computer-assisted
  201  shopping, television, radio, or other electronic media, or
  202  magazine or newspaper advertisements or other media, creates
  203  nexus with this state;
  204         (f) Through compact or reciprocity with another
  205  jurisdiction of the United States, that jurisdiction uses its
  206  taxing power and its jurisdiction over the retailer in support
  207  of this state’s taxing power;
  208         (d)(g) The dealer consents, expressly or by implication, to
  209  the imposition of the tax imposed by this chapter;
  210         (h) The dealer is subject to service of process under s.
  211  48.181;
  212         (e)(i) The dealer’s mail order sales are subject to the
  213  power of this state to tax sales or to require the dealer to
  214  collect use taxes under a statute or statutes of the United
  215  States;
  216         (f)(j) The dealer owns real property or tangible personal
  217  property that is physically in this state, except that a dealer
  218  whose only property (including property owned by an affiliate)
  219  in this state is located at the premises of a printer with which
  220  the vendor has contracted for printing, and is either a final
  221  printed product, or property which becomes a part of the final
  222  printed product, or property from which the printed product is
  223  produced, is not deemed to own such property for purposes of
  224  this paragraph;
  225         (g)(k)The person, other than a person acting in the
  226  capacity of a common carrier, The dealer, while not having nexus
  227  with this state on any of the bases described in paragraphs (a)
  228  (j) or paragraph (l), is a corporation that is a member of an
  229  affiliated group of corporations, as defined in s. 1504(a) of
  230  the Internal Revenue Code, whose members are includable under s.
  231  1504(b) of the Internal Revenue Code and whose members are
  232  eligible to file a consolidated tax return for federal corporate
  233  income tax purposes and any parent or subsidiary corporation in
  234  the affiliated group has substantial nexus with this state and:
  235         1. Sells a similar line of products as the dealer and does
  236  so under the same or a similar business name;
  237         2. Maintains an office, distribution facility, warehouse or
  238  storage place, or similar place of business in this state to
  239  facilitate the delivery of property or services sold by the
  240  dealer to the dealer’s customers;
  241         3. Uses trademarks, service marks, or trade names in this
  242  state that are the same or substantially similar to those used
  243  by the dealer;
  244         4. Delivers, installs, assembles, or performs maintenance
  245  services for the dealer’s customers in this state;
  246         5. Facilitates the dealer’s delivery of property to
  247  customers in this state by allowing the dealer’s customers to
  248  pick up property sold by the person at an office, distribution
  249  facility, warehouse, storage place, or similar place of business
  250  maintained by the person in this state; or
  251         6. Conducts any other activities in this state that are
  252  significantly associated with the dealer’s ability to establish
  253  and maintain a market in this state for the dealer’s sales on
  254  one or more of the bases described in paragraphs (a)-(j) or
  255  paragraph (l); or
  256         (h)(l) The dealer or the dealer’s activities have
  257  sufficient connection with or relationship to this state or its
  258  residents of some type other than those described in paragraphs
  259  (a)-(g) (a)-(k) to create nexus empowering this state to tax its
  260  mail order sales or to require the dealer to collect sales tax
  261  or accrue use tax.
  262  
  263  Notwithstanding other provisions of law, a dealer is not
  264  required to collect and remit sales or use tax under this
  265  subsection unless the dealer has a physical presence in this
  266  state or the activities conducted in this state on the dealer’s
  267  behalf are significantly associated with the dealer’s ability to
  268  establish and maintain a market for sales in this state.
  269         (3)(a) Notwithstanding other provisions of law or this
  270  section, on or after October 1, 2012, there is established a
  271  rebuttable presumption that every dealer as defined in s.
  272  212.06(2)(a) who makes a mail order sale is also subject to the
  273  power of this state to levy and collect the tax imposed by this
  274  chapter if the dealer enters into an agreement with one or more
  275  residents of this state under which the resident, for a
  276  commission or other consideration, directly or indirectly refers
  277  potential customers, whether by a link on an Internet website,
  278  an in-person oral presentation, telemarketing, or otherwise, to
  279  the dealer, if the cumulative gross receipts from sales by the
  280  dealer to customers in this state who are referred to the dealer
  281  by all residents with this type of an agreement with the dealer
  282  is in excess of $10,000 during the 12-month period immediately
  283  before the rebuttable presumption arose.
  284         (b) The presumption in paragraph (a) may be rebutted by the
  285  submission of evidence proving the residents with whom the
  286  dealer has an agreement did not engage in any activity within
  287  this state that was significantly associated with the dealer’s
  288  ability to establish or maintain the dealer’s market in this
  289  state during the 12 months immediately before the rebuttable
  290  presumption arose. The evidence may consist of sworn affidavits,
  291  obtained and given in good faith, from each resident with whom
  292  the dealer has an agreement attesting that he or she did not
  293  engage in any solicitation in this state on the dealer’s behalf
  294  during the previous year.
  295         (4)(3) Every dealer engaged in the business of making mail
  296  order sales is subject to the requirements of this chapter for
  297  cooperation of dealers in collection of taxes and in
  298  administration of this chapter, except that no fee shall be
  299  imposed upon such dealer for carrying out any required activity.
  300         (5)(4) The department shall, with the consent of another
  301  jurisdiction of the United States whose cooperation is needed,
  302  enforce this chapter in that jurisdiction, either directly or,
  303  at the option of that jurisdiction, through its officers or
  304  employees.
  305         (6)(5) The tax required under this section to be collected
  306  and any amount unreturned to a purchaser that is not tax but was
  307  collected from the purchaser under the representation that it
  308  was tax constitute funds of the State of Florida from the moment
  309  of collection.
  310         (7)(6) Notwithstanding other provisions of law, a dealer
  311  who makes a mail order sale in this state is exempt from
  312  collecting and remitting any local option surtax on the sale,
  313  unless the dealer is located in a county that imposes a surtax
  314  within the meaning of s. 212.054(3)(a), the order is placed
  315  through the dealer’s location in such county, and the property
  316  purchased is delivered into such county or into another county
  317  in this state that levies the surtax, in which case the
  318  provisions of s. 212.054(3)(a) are applicable.
  319         (8)(7) The department may establish by rule procedures for
  320  collecting the use tax from unregistered persons who but for
  321  their mail order purchases would not be required to remit sales
  322  or use tax directly to the department. The procedures may
  323  provide for waiver of registration and registration fees,
  324  provisions for irregular remittance of tax, elimination of the
  325  collection allowance, and nonapplication of local option
  326  surtaxes.
  327         Section 3. Subsection (11) of section 212.0506, Florida
  328  Statutes, is amended to read:
  329         212.0506 Taxation of service warranties.—
  330         (11) Any duties imposed by this chapter upon dealers of
  331  tangible personal property with respect to collecting and
  332  remitting taxes; making returns; keeping books, records, and
  333  accounts; and complying with the rules and regulations of the
  334  department apply to all dealers as defined in s. 212.06(2)(a)11.
  335  212.06(2)(l).
  336         Section 4. This act shall take effect July 1, 2012.