Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. CS for SB 316
       
       
       
       
       
       
                                Barcode 126132                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/11/2013           .                                
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       Appropriations Subcommittee on Finance and Tax (Margolis)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 212.0596, Florida Statutes, is amended
    6  to read:
    7         212.0596 Taxation of mail order sales.—
    8         (1) For purposes of this chapter, a “mail order sale” is a
    9  sale of tangible personal property, ordered by mail, the
   10  Internet, or other means of communication, from a dealer who
   11  receives the order in another state of the United States, or in
   12  a commonwealth, territory, or other area under the jurisdiction
   13  of the United States, or in a foreign country, and transports
   14  the property or causes the property to be transported, whether
   15  or not by mail, from any jurisdiction of the United States,
   16  including this state, to a person in this state, including the
   17  person who ordered the property.
   18         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
   19  mail order sale is subject to the power of this state to levy
   20  and collect the tax imposed by this chapter if when:
   21         (a) The dealer is a corporation doing business under the
   22  laws of this state or is a person domiciled in, a resident of,
   23  or a citizen of, this state;
   24         (b) The dealer maintains retail establishments or offices
   25  in this state, whether the mail order sales thus subject to
   26  taxation by this state result from or are related in any other
   27  way to the activities of such establishments or offices;
   28         (c) The dealer has agents or representatives in this state
   29  who solicit business or transact business on behalf of the
   30  dealer, whether the mail order sales thus subject to taxation by
   31  this state result from or are related in any other way to such
   32  solicitation or transaction of business, except that a printer
   33  who mails or delivers for an out-of-state print purchaser
   34  material the printer printed for it is shall not be deemed to be
   35  the print purchaser’s agent or representative for purposes of
   36  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         (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         (i) The dealer’s mail order sales are subject to the power
   58  of this state to tax sales or to require the dealer to collect
   59  use taxes pursuant to federal law under a statute or statutes of
   60  the United States;
   61         (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 that which becomes a part of the
   67  final printed product, or property from which the printed
   68  product is produced, is not deemed to own such property for
   69  purposes of this paragraph;
   70         (k) The dealer, while not having nexus with this state on
   71  any of the bases described in paragraphs (a)-(j) or paragraphs
   72  (l)-(m) paragraph (l), is a corporation that is a member of an
   73  affiliated group of corporations, as defined in s. 1504(a) of
   74  the Internal Revenue Code, whose members are includable under s.
   75  1504(b) of the Internal Revenue Code and whose members are
   76  eligible to file a consolidated tax return for federal corporate
   77  income tax purposes and any parent or subsidiary corporation in
   78  the affiliated group has nexus with this state on one or more of
   79  the bases described in paragraphs (a)-(j) or paragraphs (l)-(m)
   80  paragraph (l); or
   81         (l)A person, other than a person acting in the capacity of
   82  a common carrier, has nexus with this state and:
   83         1. Sells a similar line of products as the dealer and does
   84  so under the same or a similar business name;
   85         2. Maintains an office, distribution facility, warehouse,
   86  storage place, or similar place of business in this state to
   87  facilitate the delivery of property or services sold by the
   88  dealer to the dealer’s customers;
   89         3. Uses trademarks, service marks, or trade names in this
   90  state which are the same or substantially similar to those used
   91  by the dealer;
   92         4. Delivers, installs, assembles, or performs maintenance
   93  services for the dealer’s customers in this state;
   94         5. Facilitates the dealer’s delivery of property to
   95  customers in this state by allowing the dealer’s customers to
   96  pick up property sold by the dealer at an office, distribution
   97  facility, warehouse, storage place, or similar place of business
   98  maintained by the person in this state; or
   99         6. Conducts any other activities in this state which are
  100  significantly associated with the dealer’s ability to establish
  101  and maintain a market in this state for the dealer’s sales; or
  102         (m)(l) The dealer or the dealer’s activities have
  103  sufficient connection with or relationship to this state or its
  104  residents of some type other than those described in paragraphs
  105  (a)-(l) (a)-(k) to create a nexus empowering this state to tax
  106  its mail order sales or to require the dealer to collect sales
  107  tax or accrue use tax.
  108  
  109  Notwithstanding other provisions of law, a dealer, other than a
  110  dealer described in paragraphs (g) and (i), is not required to
  111  collect and remit sales or use tax under this subsection unless
  112  the dealer has a physical presence in this state or the
  113  activities conducted in this state on the dealer’s behalf are
  114  significantly associated with the dealer’s ability to establish
  115  and maintain a market for sales in this state.
  116         (3)(a) Notwithstanding other provisions of law or this
  117  section, there is a rebuttable presumption that every dealer, as
  118  defined in s. 212.06, who makes a mail order sale is also
  119  subject to the power of this state to levy and collect the tax
  120  imposed by this chapter if the dealer enters into an agreement
  121  with one or more persons in this state under which the person in
  122  this state, for a commission or other consideration, directly or
  123  indirectly refers potential customers, whether by a link on an
  124  Internet website, an in-person oral presentation, telemarketing,
  125  or otherwise, to the dealer, if the cumulative gross receipts
  126  from sales by the dealer to customers in this state who are
  127  referred to the dealer by all persons in this state having this
  128  type of an agreement with the dealer is in excess of $10,000
  129  during the 12 months immediately before the rebuttable
  130  presumption arose.
  131         (b) The presumption in paragraph (a) may be rebutted by the
  132  submission of evidence proving that the persons in this state
  133  with whom the dealer has an agreement did not engage in any
  134  activity within this state which was significantly associated
  135  with the dealer’s ability to establish or maintain the dealer’s
  136  market in this state during the 12 months immediately before the
  137  rebuttable presumption arose. The evidence may consist of sworn
  138  affidavits, obtained and given in good faith, from each person
  139  in this state with whom the dealer has an agreement attesting
  140  that he or she did not engage in any solicitation in this state
  141  on the dealer’s behalf during the previous year.
  142         (4)(3)A Every dealer engaged in the business of making
  143  mail order sales is subject to the requirements of this chapter
  144  for cooperation of dealers in collection of taxes and in
  145  administration of this chapter, except that a no fee may not
  146  shall be imposed upon such dealer for carrying out any required
  147  activity.
  148         (5)(4) The department shall, with the consent of another
  149  jurisdiction of the United States whose cooperation is needed,
  150  enforce this chapter in that jurisdiction, either directly or,
  151  at the option of that jurisdiction, through its officers or
  152  employees.
  153         (6)(5) The tax required under this section to be collected
  154  and any amount unreturned to a purchaser which that is not tax
  155  but was collected from the purchaser under the representation
  156  that it was tax constitute funds of this the state of Florida
  157  from the moment of collection.
  158         (7)(6) Notwithstanding other provisions of law, a dealer
  159  who makes a mail order sale in this state is exempt from
  160  collecting and remitting any local option surtax on the sale,
  161  unless the dealer is located in a county that imposes a surtax
  162  within the meaning of s. 212.054(3)(a), the order is placed
  163  through the dealer’s location in such county, and the property
  164  purchased is delivered into such county or into another county
  165  in this state which that levies the surtax, in which case the
  166  provisions of s. 212.054(3)(a) are applicable.
  167         (8)(7) The department may establish by rule procedures for
  168  collecting the use tax from unregistered persons who but for
  169  their mail order purchases would not be required to remit sales
  170  or use tax directly to the department. The procedures may
  171  provide for waiver of registration and registration fees,
  172  provisions for irregular remittance of tax, elimination of the
  173  collection allowance, and nonapplication of local option
  174  surtaxes.
  175         Section 2. Subsection (2) of section 212.06, Florida
  176  Statutes, is amended to read:
  177         212.06 Sales, storage, use tax; collectible from dealers;
  178  “dealer” defined; dealers to collect from purchasers;
  179  legislative intent as to scope of tax.—
  180         (2)(a) The term “dealer,” as used in this chapter, means a
  181  includes every person who:
  182         (a) Manufactures or produces tangible personal property for
  183  sale at retail; for use, consumption, or distribution; or for
  184  storage to be used or consumed in this state.
  185         (b) The term “dealer” is further defined to mean every
  186  person, as used in this chapter, who Imports, or causes to be
  187  imported, tangible personal property from any state or foreign
  188  country for sale at retail; for use, consumption, or
  189  distribution; or for storage to be used or consumed in this
  190  state.
  191         (c) The term “dealer” is further defined to mean every
  192  person, as used in this chapter, who Sells at retail or who
  193  offers for sale at retail, or who has in his or her possession
  194  for sale at retail; or for use, consumption, or distribution; or
  195  for storage to be used or consumed in this state, tangible
  196  personal property as defined herein, including a retailer who
  197  transacts a mail order sale.
  198         (d) The term “dealer” is further defined to mean any person
  199  who Has sold at retail; or used, or consumed, or distributed; or
  200  stored for use or consumption in this state, tangible personal
  201  property and who cannot prove that the tax levied by this
  202  chapter has been paid on the sale at retail, the use, the
  203  consumption, the distribution, or the storage of such tangible
  204  personal property. However, The term “dealer” does not include
  205  mean a person who is not a “dealer” as otherwise defined in
  206  under the definition of any other paragraph of this subsection
  207  and whose only owned or leased property, (including property
  208  owned or leased by an affiliate,) in this state is located at
  209  the premises of a printer with which it has contracted for
  210  printing, if such property consists of the final printed
  211  product, property which becomes a part of the final printed
  212  product, or property from which the printed product is produced.
  213         (e) The term “dealer” is further defined to mean any
  214  person, as used in this chapter, who Leases or rents tangible
  215  personal property, as defined in this chapter, for a
  216  consideration, permitting the use or possession of such property
  217  without transferring title thereto, except as expressly provided
  218  in this chapter for to the contrary herein.
  219         (f) The term “dealer” is further defined to mean any
  220  person, as used in this chapter, who Maintains or has within
  221  this state, directly or by a subsidiary, an office, distributing
  222  house, salesroom, or house, warehouse, or other place of
  223  business, or uses within this state an office, distributing
  224  house, salesroom, or house, warehouse, or other place of
  225  business operated by any person other than a common carrier
  226  acting in the capacity of a common carrier.
  227         (g) “Dealer” also means and includes every person who
  228  Solicits business either by direct representatives, indirect
  229  representatives, or manufacturers’ agents within this state; by
  230  distribution of catalogs or other advertising matter; or by any
  231  other means whatsoever, and by reason thereof receives orders
  232  for tangible personal property from consumers for use,
  233  consumption, distribution, and storage for use or consumption in
  234  the state.; Such dealer shall collect the tax imposed by this
  235  chapter from the purchaser, and no action, either in law or in
  236  equity, on a sale or transaction as provided by the terms of
  237  this chapter may be had in this state by any such dealer unless
  238  it is affirmatively shown that the provisions of this chapter
  239  have been fully complied with.
  240         (h) “Dealer” also means and includes every person who, As a
  241  representative, agent, or solicitor of an out-of-state principal
  242  or principals, solicits, receives, and accepts orders from
  243  consumers in the state for future delivery and whose principal
  244  refuses to register as a dealer.
  245         (i) Constitutes “Dealer” also means and includes the state
  246  or any, county, municipality, district any political
  247  subdivision, agency, bureau, or department, or other state or
  248  local governmental instrumentality.
  249         (j) The term “dealer” is further defined to mean any person
  250  who Leases, or grants a license to use, occupy, or enter upon,
  251  living quarters, sleeping or housekeeping accommodations in
  252  hotels, apartment houses, roominghouses, tourist or trailer
  253  camps, real property, space or spaces in parking lots or garages
  254  for motor vehicles, docking or storage space or spaces for boats
  255  in boat docks or marinas, or tie-down or storage space or spaces
  256  for aircraft at airports. The term includes “dealer” also means
  257  any person who has leased, occupied, or used or was entitled to
  258  use any living quarters, sleeping or housekeeping accommodations
  259  in hotels, apartment houses, roominghouses, tourist or trailer
  260  camps, real property, space or spaces in parking lots or garages
  261  for motor vehicles, or docking or storage space or spaces for
  262  boats in boat docks or marinas, or who has purchased
  263  communication services or electric power or energy, and who
  264  cannot prove that the tax levied by this chapter has been paid
  265  to the vendor or lessor on any such transactions. The term
  266  “dealer” does not include a any person who leases, lets, rents,
  267  or grants a license to use, occupy, or enter upon any living
  268  quarters, sleeping quarters, or housekeeping accommodations in
  269  apartment houses, roominghouses, tourist camps, or trailer
  270  camps, and who exclusively enters into a bona fide written
  271  agreement for continuous residence for longer than 6 months in
  272  duration with a any person who leases, lets, rents, or is
  273  granted a license to use such property.
  274         (k) “Dealer” also means any person who Sells, provides, or
  275  performs a service taxable under this chapter. The term includes
  276  a “Dealer” also means any person who purchases, uses, or
  277  consumes a service taxable under this chapter who cannot prove
  278  that the tax levied by this chapter has been paid to the seller
  279  of the taxable service.
  280         (l) “Dealer” also means any person who Solicits, offers,
  281  provides, enters into, issues, or delivers any service warranty
  282  taxable under this chapter, or who receives, on behalf of such a
  283  person, any consideration from a service warranty holder.
  284         Section 3. (1) The Department of Revenue shall develop a
  285  tracking system, in consultation with the Revenue Estimating
  286  Conference, to determine the amount of sales taxes remitted by
  287  out–of-state dealers who would otherwise not be required to
  288  collect and remit sales taxes in the absence of the amendments
  289  made to s. 212.0596, Florida Statutes, in section 1 of this act.
  290  By February 1 of each year, the Department of Revenue shall
  291  submit a report to the Governor, the President of the Senate,
  292  and the Speaker of the House of Representatives which sets forth
  293  the amount of sales taxes collected and remitted by such dealers
  294  in the previous calendar year and the methodology used to
  295  determine the amount.
  296         (2) By March 1 of each year, the Revenue Estimating
  297  Conference shall use the information provided by the Department
  298  of Revenue pursuant to subsection (1) to determine the amount of
  299  sales taxes remitted in the previous calendar year by such out
  300  of-state dealers who would otherwise not be required to collect
  301  and remit sales taxes and estimate the amount that may be
  302  expected in the following fiscal year.
  303         (3) The Legislature shall use the information provided by
  304  the Department of Revenue and the Revenue Estimating Conference
  305  to develop legislation designed to return the amount of those
  306  sales taxes collected to the taxpayers of this state. If the
  307  amount collected is determined to be of a recurring nature and
  308  sufficient to lower tax rates, the Legislature shall reduce the
  309  communication services tax rate set forth in chapter 202,
  310  Florida Statutes. The legislature shall also implement a three
  311  day sales tax holiday reduce taxes. Both actions shall reduce
  312  tax collections in an amount not less than the amount determined
  313  by the Revenue Estimating Conference.
  314         Section 4. This act shall take effect February 1, 2014.
  315  
  316  ================= T I T L E  A M E N D M E N T ================
  317         And the title is amended as follows:
  318         Delete everything before the enacting clause
  319  and insert:
  320                        A bill to be entitled                      
  321         An act relating to taxes; amending s. 212.0596, F.S.;
  322         revising the term “mail order sale” to specifically
  323         include sales of tangible personal property ordered
  324         through the Internet or from a dealer who receives the
  325         order in a foreign country; providing that certain
  326         persons who make mail order sales and who have a nexus
  327         with this state are subject to this state’s power to
  328         levy and collect the sales and use tax when they
  329         engage in certain enumerated activities; specifying
  330         that dealers are not required to collect and remit
  331         sales and use tax unless certain circumstances exist;
  332         creating a rebuttable presumption that a dealer is
  333         subject to the state’s power to levy and collect the
  334         sales or use tax under specified circumstances;
  335         specifying evidentiary proof that may be submitted to
  336         rebut the presumption; amending s. 212.06, F.S.;
  337         revising the definition of the term “dealer”;
  338         requiring that the Department of Revenue develop a
  339         tracking system, in consultation with the Revenue
  340         Estimating Conference, to determine the amount of
  341         sales tax remitted by out-of-state dealers who would
  342         otherwise not be required to collect and remit sales
  343         taxes but for the amendments made by the act;
  344         requiring that the department submit a report to the
  345         Governor and Legislature by a specified date each
  346         year; requiring that the Revenue Estimating Conference
  347         use such report to determine the amount of sales taxes
  348         remitted in the previous calendar year by such out-of
  349         state dealers and estimate the amount that may be
  350         expected in the following fiscal year; requiring that
  351         the Legislature use the information to reduce
  352         communication services tax rates and provide a sales
  353         tax holiday as deemed appropriate; providing an
  354         effective date.
  355