Florida Senate - 2012                             CS for SB 1514
       
       
       
       By the Committee on Commerce and Tourism; and Senator Detert
       
       
       
       
       577-02855-12                                          20121514c1
    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; amending s. 212.0596, F.S.; revising the
    7         term “mail order sale” to specifically include sales
    8         of tangible personal property ordered by Internet;
    9         deleting certain provisions that specify dealer
   10         activities or other circumstances that subject mail
   11         order sales to this state’s power to levy and collect
   12         the sales and use tax; providing that certain persons
   13         who make mail order sales and who have a substantial
   14         nexus with this state are subject to this state’s
   15         power to levy and collect the sales and use tax when
   16         they engage in certain enumerated activities;
   17         specifying that dealers are not required to collect
   18         and remit sales and use tax unless certain
   19         circumstances exist; creating a rebuttable presumption
   20         that a dealer is subject to the state’s power to levy
   21         and collect the sales or use tax under specified
   22         circumstances; specifying evidentiary proof that may
   23         be submitted to rebut the presumption; amending s.
   24         212.0506, F.S.; conforming a cross-reference;
   25         providing an effective date.
   26  
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Subsection (2) of section 212.06, Florida
   30  Statutes, is amended to read:
   31         212.06 Sales, storage, use tax; collectible from dealers;
   32  “dealer” defined; dealers to collect from purchasers;
   33  legislative intent as to scope of tax.—
   34         (2)(a) The term “dealer,” as used in this chapter, means
   35  any includes every person who:
   36         (a) Manufactures or produces tangible personal property for
   37  sale at retail; for use, consumption, or distribution; or for
   38  storage to be used or consumed in this state.
   39         (b) The term “dealer” is further defined to mean every
   40  person, as used in this chapter, who Imports, or causes to be
   41  imported, tangible personal property from any state or foreign
   42  country for sale at retail; for use, consumption, or
   43  distribution; or for storage to be used or consumed in this
   44  state.
   45         (c) The term “dealer” is further defined to mean every
   46  person, as used in this chapter, who Sells at retail or who
   47  offers for sale at retail, or who has in his or her possession
   48  for sale at retail; or for use, consumption, or distribution; or
   49  for storage to be used or consumed in this state, tangible
   50  personal property as defined herein, including a retailer who
   51  transacts a mail order sale.
   52         (d) The term “dealer” is further defined to mean any person
   53  who Has sold at retail; or used, or consumed, or distributed; or
   54  stored for use or consumption in this state, tangible personal
   55  property and who cannot prove that the tax levied by this
   56  chapter has been paid on the sale at retail, the use, the
   57  consumption, the distribution, or the storage of such tangible
   58  personal property. However, The term “dealer” does not include
   59  mean a person who is not a “dealer” as otherwise defined in
   60  under the definition of any other paragraph of this subsection
   61  and whose only owned or leased property (including property
   62  owned or leased by an affiliate) in this state is located at the
   63  premises of a printer with which it has contracted for printing,
   64  if such property consists of the final printed product, property
   65  which becomes a part of the final printed product, or property
   66  from which the printed product is produced.
   67         (e) The term “dealer” is further defined to mean any
   68  person, as used in this chapter, who Leases or rents tangible
   69  personal property, as defined in this chapter, for a
   70  consideration, permitting the use or possession of such property
   71  without transferring title thereto, except as expressly provided
   72  for to the contrary in this chapter herein.
   73         (f) The term “dealer” is further defined to mean any
   74  person, as used in this chapter, who Maintains or uses has
   75  within this state, directly or by a subsidiary, an office,
   76  distributing house, salesroom, or house, warehouse, or other
   77  place of business operated by any person other than a common
   78  carrier acting in the capacity of a common carrier.
   79         (g) “Dealer” also means and includes every person who
   80  solicits business either by direct representatives, indirect
   81  representatives, or manufacturers’ agents; by distribution of
   82  catalogs or other advertising matter; or by any other means
   83  whatsoever, and by reason thereof receives orders for tangible
   84  personal property from consumers for use, consumption,
   85  distribution, and storage for use or consumption in the state;
   86  such dealer shall collect the tax imposed by this chapter from
   87  the purchaser, and no action, either in law or in equity, on a
   88  sale or transaction as provided by the terms of this chapter may
   89  be had in this state by any such dealer unless it is
   90  affirmatively shown that the provisions of this chapter have
   91  been fully complied with.
   92         (g)(h)“Dealer” also means and includes every person who,
   93  As a representative, agent, or solicitor of an out-of-state
   94  principal or principals, solicits, receives, and accepts orders
   95  from consumers in the state for future delivery and whose
   96  principal refuses to register as a dealer.
   97         (h)(i)Constitutes “Dealer” also means and includes the
   98  state or any, county, municipality, district any political
   99  subdivision, agency, bureau, or department, or other state or
  100  local governmental instrumentality.
  101         (i)(j)The term “dealer” is further defined to mean any
  102  person who Leases, or grants a license to use, occupy, or enter
  103  upon, living quarters, sleeping or housekeeping accommodations
  104  in hotels, apartment houses, roominghouses, tourist or trailer
  105  camps, real property, space or spaces in parking lots or garages
  106  for motor vehicles, docking or storage space or spaces for boats
  107  in boat docks or marinas, or tie-down or storage space or spaces
  108  for aircraft at airports. The term includes “dealer” also means
  109  any person who has leased, occupied, or used or was entitled to
  110  use any living quarters, sleeping or housekeeping accommodations
  111  in hotels, apartment houses, roominghouses, tourist or trailer
  112  camps, real property, space or spaces in parking lots or garages
  113  for motor vehicles, or docking or storage space or spaces for
  114  boats in boat docks or marinas, or who has purchased
  115  communication services or electric power or energy, and who
  116  cannot prove that the tax levied by this chapter has been paid
  117  to the vendor or lessor on any such transactions. The term
  118  “dealer” does not include any person who leases, lets, rents, or
  119  grants a license to use, occupy, or enter upon any living
  120  quarters, sleeping quarters, or housekeeping accommodations in
  121  apartment houses, roominghouses, tourist camps, or trailer
  122  camps, and who exclusively enters into a bona fide written
  123  agreement for continuous residence for longer than 6 months in
  124  duration with any person who leases, lets, rents, or is granted
  125  a license to use such property.
  126         (j)(k)“Dealer” also means any person who Sells, provides,
  127  or performs a service taxable under this chapter. The term
  128  includes “Dealer” also means any person who purchases, uses, or
  129  consumes a service taxable under this chapter who cannot prove
  130  that the tax levied by this chapter has been paid to the seller
  131  of the taxable service.
  132         (k)(l)“Dealer” also means any person who Solicits, offers,
  133  provides, enters into, issues, or delivers any service warranty
  134  taxable under this chapter, or who receives, on behalf of such a
  135  person, any consideration from a service warranty holder.
  136         Section 2. Section 212.0596, Florida Statutes, is amended
  137  to read:
  138         212.0596 Taxation of mail order sales.—
  139         (1) For purposes of this chapter, a “mail order sale” is a
  140  sale of tangible personal property, ordered by mail, Internet,
  141  or other means of communication, from a dealer who receives the
  142  order in another state of the United States, or in a
  143  commonwealth, territory, or other area under the jurisdiction of
  144  the United States, and transports the property or causes the
  145  property to be transported, whether or not by mail, from any
  146  jurisdiction of the United States, including this state, to a
  147  person in this state, including the person who ordered the
  148  property.
  149         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
  150  mail order sale is subject to the power of this state to levy
  151  and collect the tax imposed by this chapter when:
  152         (a) The dealer is a corporation doing business under the
  153  laws of this state or is a person domiciled in, a resident of,
  154  or a citizen of, this state;
  155         (b) The dealer maintains retail establishments or offices
  156  in this state, whether the mail order sales thus subject to
  157  taxation by this state result from or are related in any other
  158  way to the activities of such establishments or offices;
  159         (c) The dealer has agents or representatives in this state
  160  who solicit business or transact business on behalf of the
  161  dealer, whether the mail order sales thus subject to taxation by
  162  this state result from or are related in any other way to such
  163  solicitation or transaction of business, except that a printer
  164  who mails or delivers for an out-of-state print purchaser
  165  material the printer printed for it is shall not be deemed to be
  166  the print purchaser’s agent or representative for purposes of
  167  this paragraph;
  168         (d) The property was delivered in this state in fulfillment
  169  of a sales contract that was entered into in this state, in
  170  accordance with applicable conflict of laws rules, when a person
  171  in this state accepted an offer by ordering the property;
  172         (e) The dealer, by purposefully or systematically
  173  exploiting the market provided by this state by any media
  174  assisted, media-facilitated, or media-solicited means,
  175  including, but not limited to, direct mail advertising,
  176  unsolicited distribution of catalogs, computer-assisted
  177  shopping, television, radio, or other electronic media, or
  178  magazine or newspaper advertisements or other media, creates
  179  nexus with this state;
  180         (f) Through compact or reciprocity with another
  181  jurisdiction of the United States, that jurisdiction uses its
  182  taxing power and its jurisdiction over the retailer in support
  183  of this state’s taxing power;
  184         (d)(g) The dealer consents, expressly or by implication, to
  185  the imposition of the tax imposed by this chapter;
  186         (h) The dealer is subject to service of process under s.
  187  48.181;
  188         (e)(i) The dealer’s mail order sales are subject to the
  189  power of this state to tax sales or to require the dealer to
  190  collect use taxes under a statute or statutes of the United
  191  States;
  192         (f)(j) The dealer owns real property or tangible personal
  193  property that is physically in this state, except that a dealer
  194  whose only property (including property owned by an affiliate)
  195  in this state is located at the premises of a printer with which
  196  the vendor has contracted for printing, and is either a final
  197  printed product, or property which becomes a part of the final
  198  printed product, or property from which the printed product is
  199  produced, is not deemed to own such property for purposes of
  200  this paragraph;
  201         (g)(k)The person, other than a person acting in the
  202  capacity of a common carrier, The dealer, while not having nexus
  203  with this state on any of the bases described in paragraphs (a)
  204  (j) or paragraph (l), is a corporation that is a member of an
  205  affiliated group of corporations, as defined in s. 1504(a) of
  206  the Internal Revenue Code, whose members are includable under s.
  207  1504(b) of the Internal Revenue Code and whose members are
  208  eligible to file a consolidated tax return for federal corporate
  209  income tax purposes and any parent or subsidiary corporation in
  210  the affiliated group has substantial nexus with this state and:
  211         1. Sells a similar line of products as the dealer and does
  212  so under the same or a similar business name;
  213         2. Maintains an office, distribution facility, warehouse or
  214  storage place, or similar place of business in this state to
  215  facilitate the delivery of property or services sold by the
  216  dealer to the dealer’s customers;
  217         3. Uses trademarks, service marks, or trade names in this
  218  state that are the same or substantially similar to those used
  219  by the dealer;
  220         4. Delivers, installs, assembles, or performs maintenance
  221  services for the dealer’s customers in this state;
  222         5. Facilitates the dealer’s delivery of property to
  223  customers in this state by allowing the dealer’s customers to
  224  pick up property sold by the person at an office, distribution
  225  facility, warehouse, storage place, or similar place of business
  226  maintained by the person in this state; or
  227         6. Conducts any other activities in this state that are
  228  significantly associated with the dealer’s ability to establish
  229  and maintain a market in this state for the dealer’s sales on
  230  one or more of the bases described in paragraphs (a)-(j) or
  231  paragraph (l); or
  232         (h)(l) The dealer or the dealer’s activities have
  233  sufficient connection with or relationship to this state or its
  234  residents of some type other than those described in paragraphs
  235  (a)-(g) (a)-(k) to create nexus empowering this state to tax its
  236  mail order sales or to require the dealer to collect sales tax
  237  or accrue use tax.
  238  
  239  Notwithstanding other provisions of law, a dealer is not
  240  required to collect and remit sales or use tax under this
  241  subsection unless the dealer has a physical presence in this
  242  state or the activities conducted in this state on the dealer’s
  243  behalf are significantly associated with the dealer’s ability to
  244  establish and maintain a market for sales in this state.
  245         (3)(a) Notwithstanding other provisions of law or this
  246  section, on or after October 1, 2012, there is established a
  247  rebuttable presumption that every dealer as defined in s.
  248  212.06(2) who makes a mail order sale is also subject to the
  249  power of this state to levy and collect the tax imposed by this
  250  chapter if the dealer enters into an agreement with one or more
  251  residents of this state under which the resident, for a
  252  commission or other consideration, directly or indirectly refers
  253  potential customers, whether by a link on an Internet website,
  254  an in-person oral presentation, telemarketing, or otherwise, to
  255  the dealer, if the cumulative gross receipts from sales by the
  256  dealer to customers in this state who are referred to the dealer
  257  by all residents with this type of an agreement with the dealer
  258  is in excess of $10,000 during the 12-month period immediately
  259  before the rebuttable presumption arose.
  260         (b) The presumption in paragraph (a) may be rebutted by the
  261  submission of evidence proving the residents with whom the
  262  dealer has an agreement did not engage in any activity within
  263  this state that was significantly associated with the dealer’s
  264  ability to establish or maintain the dealer’s market in this
  265  state during the 12 months immediately before the rebuttable
  266  presumption arose. The evidence may consist of sworn affidavits,
  267  obtained and given in good faith, from each resident with whom
  268  the dealer has an agreement attesting that he or she did not
  269  engage in any solicitation in this state on the dealer’s behalf
  270  during the previous year.
  271         (4)(3) Every dealer engaged in the business of making mail
  272  order sales is subject to the requirements of this chapter for
  273  cooperation of dealers in collection of taxes and in
  274  administration of this chapter, except that no fee shall be
  275  imposed upon such dealer for carrying out any required activity.
  276         (5)(4) The department shall, with the consent of another
  277  jurisdiction of the United States whose cooperation is needed,
  278  enforce this chapter in that jurisdiction, either directly or,
  279  at the option of that jurisdiction, through its officers or
  280  employees.
  281         (6)(5) The tax required under this section to be collected
  282  and any amount unreturned to a purchaser that is not tax but was
  283  collected from the purchaser under the representation that it
  284  was tax constitute funds of the State of Florida from the moment
  285  of collection.
  286         (7)(6) Notwithstanding other provisions of law, a dealer
  287  who makes a mail order sale in this state is exempt from
  288  collecting and remitting any local option surtax on the sale,
  289  unless the dealer is located in a county that imposes a surtax
  290  within the meaning of s. 212.054(3)(a), the order is placed
  291  through the dealer’s location in such county, and the property
  292  purchased is delivered into such county or into another county
  293  in this state that levies the surtax, in which case the
  294  provisions of s. 212.054(3)(a) are applicable.
  295         (8)(7) The department may establish by rule procedures for
  296  collecting the use tax from unregistered persons who but for
  297  their mail order purchases would not be required to remit sales
  298  or use tax directly to the department. The procedures may
  299  provide for waiver of registration and registration fees,
  300  provisions for irregular remittance of tax, elimination of the
  301  collection allowance, and nonapplication of local option
  302  surtaxes.
  303         Section 3. Subsection (11) of section 212.0506, Florida
  304  Statutes, is amended to read:
  305         212.0506 Taxation of service warranties.—
  306         (11) Any duties imposed by this chapter upon dealers of
  307  tangible personal property with respect to collecting and
  308  remitting taxes; making returns; keeping books, records, and
  309  accounts; and complying with the rules and regulations of the
  310  department apply to all dealers as defined in s. 212.06(2)(k)
  311  212.06(2)(l).
  312         Section 4. This act shall take effect July 1, 2012.