Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. HB 5701
                                Barcode 178758                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                 Floor: WD/2R          .                                
             02/23/2012 07:48 PM       .                                

       Senator Bogdanoff moved the following:
    1         Senate Amendment to Amendment (716500) (with title
    2  amendment)
    4         Between lines 195 and 196
    5  insert:
    6         Section 7. Subsections (1) and (2) of section 212.0596,
    7  Florida Statutes, are amended to read:
    8         212.0596 Taxation of mail order sales.—
    9         (1) For purposes of this chapter, a “mail order sale” is a
   10  sale of tangible personal property, ordered by mail, use of the
   11  Internet, or other means of communication, from a dealer who
   12  receives the order in another state of the United States, or in
   13  a commonwealth, territory, or other area under the jurisdiction
   14  of the United States, and transports the property or causes the
   15  property to be transported, whether or not by mail, from any
   16  jurisdiction of the United States, including this state, to a
   17  person in this state, including the person who ordered the
   18  property.
   19         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
   20  mail order sale is subject to the power of this state to levy
   21  and collect the tax imposed by this chapter when:
   22         (a) The dealer is a corporation doing business under the
   23  laws of this state or a person domiciled in, a resident of, or a
   24  citizen of, this state;
   25         (b) The dealer maintains retail establishments or offices
   26  in this state, whether the mail order sales thus subject to
   27  taxation by this state result from or are related in any other
   28  way to the activities of such establishments or offices;
   29         (c) The dealer has agents in this state who solicit
   30  business or transact business on behalf of the dealer, whether
   31  the mail order sales thus subject to taxation by this state
   32  result from or are related in any other way to such solicitation
   33  or transaction of business, except that a printer who mails or
   34  delivers for an out-of-state print purchaser material the
   35  printer printed for it shall not be deemed to be the print
   36  purchaser’s agent for purposes of this paragraph;
   37         (d) The property was delivered in this state in fulfillment
   38  of a sales contract that was entered into in this state, in
   39  accordance with applicable conflict of laws rules, when a person
   40  in this state accepted an offer by ordering the property;
   41         (e) The dealer, by purposefully or systematically
   42  exploiting the market provided by this state by any media
   43  assisted, media-facilitated, or media-solicited means,
   44  including, but not limited to, direct mail advertising,
   45  unsolicited distribution of catalogs, computer-assisted
   46  shopping, television, radio, or other electronic media, or
   47  magazine or newspaper advertisements or other media, creates
   48  nexus with this state;
   49         (f) Through compact or reciprocity with another
   50  jurisdiction of the United States, that jurisdiction uses its
   51  taxing power and its jurisdiction over the retailer in support
   52  of this state’s taxing power;
   53         (d)(g) The dealer consents, expressly or by implication, to
   54  the imposition of the tax imposed by this chapter;
   55         (h) The dealer is subject to service of process under s.
   56  48.181;
   57         (e)(i) The dealer’s mail order sales are subject to the
   58  power of this state to tax sales or to require the dealer to
   59  collect use taxes under a statute or statutes of the United
   60  States;
   61         (f)(j) The dealer owns real property or tangible personal
   62  property that is physically in this state, except that a dealer
   63  whose only property (including property owned by an affiliate)
   64  in this state is located at the premises of a printer with which
   65  the vendor has contracted for printing, and is either a final
   66  printed product, or property which becomes a part of the final
   67  printed product, or property from which the printed product is
   68  produced, is not deemed to own such property for purposes of
   69  this paragraph;
   70         (g)(k) The dealer and any affiliated person that,
   71  notwithstanding its form of organization, bears the same
   72  relationship to the dealer as, while not having nexus with this
   73  state on any of the bases described in paragraphs (a)-(j) or
   74  paragraph (l), is a corporation that is a member of an
   75  affiliated group of corporations, as defined in s. 1504(a) of
   76  the Internal Revenue Code, whose members are includable under s.
   77  1504(b) of the Internal Revenue Code, and whose members are
   78  eligible to file a consolidated tax return for federal corporate
   79  income tax purposes bears to and any parent or subsidiary
   80  corporation in the affiliated group; the affiliated person has
   81  nexus with this state; and: on one or more of the bases
   82  described in paragraphs (a)-(j) or paragraph (l); or
   83         1. The dealer sells a similar line of products as the
   84  affiliated person and does so under the same or a similar
   85  business name;
   86         2. The affiliated person uses its in-state employees or in
   87  state facilities to advertise, promote, or facilitate sales by
   88  the dealer to customers;
   89         3. The affiliated person maintains an office, distribution
   90  facility, warehouse, storage place, or similar place of business
   91  in this state to facilitate the delivery of property or services
   92  sold by the dealer to the dealer’s customers;
   93         4. The affiliated person uses trademarks, service marks, or
   94  trade names in this state that are the same or substantially
   95  similar to those used by the dealer; or
   96         5. The affiliated person delivers, installs, assembles, or
   97  performs maintenance services for the dealer’s customers within
   98  this state;
   99         (h) The dealer has an arrangement with any person pursuant
  100  to which that person performs services in this state for the
  101  dealer’s customers on behalf of the dealer, including, but not
  102  limited to, installation, assembly, maintenance, or repair
  103  services;
  104         (i) The dealer has an arrangement with any person, other
  105  than a common carrier, pursuant to which that person facilitates
  106  the dealer’s delivery of property to customers in this state by
  107  allowing the dealer’s customers to pick up property sold by the
  108  person at an office, distribution facility, warehouse, storage
  109  place, or similar place of business maintained by the dealer in
  110  this state; or
  111         (j)(l) The dealer or the dealer’s activities have
  112  sufficient connection with or relationship to this state or its
  113  residents of some type other than those described in paragraphs
  114  (a)-(i) (a)-(k) to create nexus empowering this state to tax its
  115  mail order sales or to require the dealer to collect sales tax
  116  or accrue use tax.
  118  Notwithstanding any provision to the contrary, a dealer is not
  119  required to collect and remit sales or use tax under this
  120  subsection unless the retailer has a physical presence in this
  121  state or the activities conducted in this state on the
  122  retailer’s behalf are significantly associated with the dealer’s
  123  ability to establish and maintain a market for sales in this
  124  state.
  126  ================= T I T L E  A M E N D M E N T ================
  127  And the title is amended as follows:
  129         Delete line 229
  130  and insert:
  132         estimated payment; revising the definition of “mail
  133         order sale” to include the sale of tangible personal
  134         property ordered by use of the Internet for purposes
  135         relating to the imposition and collection of the tax
  136         on sales, use, and other transactions; revising the
  137         conditions, requirements, and criteria that subject a
  138         dealer to the state’s power to impose and collect the
  139         tax on sales, use, and other transactions on mail
  140         order sales; specifying that a dealer is not required
  141         to collect the tax on sales, use, and other
  142         transactions unless certain circumstances exist
  143         relating to the retailer; providing effective dates.