Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. CS for SB 2068
                                Barcode 255720                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                Floor: 1/AD/2R         .                                
             02/23/2012 04:10 PM       .                                

       Senator Bogdanoff moved the following:
    1         Senate Amendment (with title amendment)
    3         Between lines 28 and 29
    4  insert:
    5         Section 1. Subsections (1) and (2) of section 212.0596,
    6  Florida Statutes, are amended 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, use of 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, and transports the property or causes the
   14  property to be transported, whether or not by mail, from any
   15  jurisdiction of the United States, including this state, to a
   16  person in this state, including the person who ordered the
   17  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 when:
   21         (a) The dealer is a corporation doing business under the
   22  laws of this state or a person domiciled in, a resident of, or a
   23  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 in this state who solicit
   29  business or transact business on behalf of the dealer, whether
   30  the mail order sales thus subject to taxation by this state
   31  result from or are related in any other way to such solicitation
   32  or transaction of business, except that a printer who mails or
   33  delivers for an out-of-state print purchaser material the
   34  printer printed for it shall not be deemed to be the print
   35  purchaser’s agent for purposes of this paragraph;
   36         (d) The property was delivered in this state in fulfillment
   37  of a sales contract that was entered into in this state, in
   38  accordance with applicable conflict of laws rules, when a person
   39  in this state accepted an offer by ordering the property;
   40         (e) The dealer, by purposefully or systematically
   41  exploiting the market provided by this state by any media
   42  assisted, media-facilitated, or media-solicited means,
   43  including, but not limited to, direct mail advertising,
   44  unsolicited distribution of catalogs, computer-assisted
   45  shopping, television, radio, or other electronic media, or
   46  magazine or newspaper advertisements or other media, creates
   47  nexus with this state;
   48         (f) Through compact or reciprocity with another
   49  jurisdiction of the United States, that jurisdiction uses its
   50  taxing power and its jurisdiction over the retailer in support
   51  of this state’s taxing power;
   52         (d)(g) The dealer consents, expressly or by implication, to
   53  the imposition of the tax imposed by this chapter;
   54         (h) The dealer is subject to service of process under s.
   55  48.181;
   56         (e)(i) The dealer’s mail order sales are subject to the
   57  power of this state to tax sales or to require the dealer to
   58  collect use taxes under a statute or statutes of the United
   59  States;
   60         (f)(j) The dealer owns real property or tangible personal
   61  property that is physically in this state, except that a dealer
   62  whose only property (including property owned by an affiliate)
   63  in this state is located at the premises of a printer with which
   64  the vendor has contracted for printing, and is either a final
   65  printed product, or property which becomes a part of the final
   66  printed product, or property from which the printed product is
   67  produced, is not deemed to own such property for purposes of
   68  this paragraph;
   69         (g)(k) The dealer and any affiliated person that,
   70  notwithstanding its form of organization, bears the same
   71  relationship to the dealer as, while not having nexus with this
   72  state on any of the bases described in paragraphs (a)-(j) or
   73  paragraph (l), is a corporation that is a member of an
   74  affiliated group of corporations, as defined in s. 1504(a) of
   75  the Internal Revenue Code, whose members are includable under s.
   76  1504(b) of the Internal Revenue Code, and whose members are
   77  eligible to file a consolidated tax return for federal corporate
   78  income tax purposes bears to and any parent or subsidiary
   79  corporation in the affiliated group; the affiliated person has
   80  nexus with this state; and: on one or more of the bases
   81  described in paragraphs (a)-(j) or paragraph (l); or
   82         1. The dealer sells a similar line of products as the
   83  affiliated person and does so under the same or a similar
   84  business name;
   85         2. The affiliated person uses its in-state employees or in
   86  state facilities to advertise, promote, or facilitate sales by
   87  the dealer to customers;
   88         3. The affiliated person maintains an office, distribution
   89  facility, warehouse, storage place, or similar place of business
   90  in this state to facilitate the delivery of property or services
   91  sold by the dealer to the dealer’s customers;
   92         4. The affiliated person uses trademarks, service marks, or
   93  trade names in this state that are the same or substantially
   94  similar to those used by the dealer; or
   95         5. The affiliated person delivers, installs, assembles, or
   96  performs maintenance services for the dealer’s customers within
   97  this state;
   98         (h) The dealer has an arrangement with any person pursuant
   99  to which that person performs services in this state for the
  100  dealer’s customers on behalf of the dealer, including, but not
  101  limited to, installation, assembly, maintenance, or repair
  102  services;
  103         (i) The dealer has an arrangement with any person, other
  104  than a common carrier, pursuant to which that person facilitates
  105  the dealer’s delivery of property to customers in this state by
  106  allowing the dealer’s customers to pick up property sold by the
  107  person at an office, distribution facility, warehouse, storage
  108  place, or similar place of business maintained by the dealer in
  109  this state; or
  110         (j)(l) The dealer or the dealer’s activities have
  111  sufficient connection with or relationship to this state or its
  112  residents of some type other than those described in paragraphs
  113  (a)-(i) (a)-(k) to create nexus empowering this state to tax its
  114  mail order sales or to require the dealer to collect sales tax
  115  or accrue use tax.
  117  Notwithstanding any provision to the contrary, a dealer is not
  118  required to collect and remit sales or use tax under this
  119  subsection unless the retailer has a physical presence in this
  120  state or the activities conducted in this state on the
  121  retailer’s behalf are significantly associated with the dealer’s
  122  ability to establish and maintain a market for sales in this
  123  state.
  125  ================= T I T L E A M E N D M E N T ================
  126  And the title is amended as follows:
  128         Delete line 2
  129  and insert:
  131         An act relating to taxation; amending s. 212.0596,
  132         F.S.; revising the definition of “mail order sale” to
  133         include the sale of tangible personal property ordered
  134         by use of the Internet for purposes relating to the
  135         imposition and collection of the tax on sales, use,
  136         and other transactions; revising the conditions,
  137         requirements, and criteria that subject a dealer to
  138         the state’s power to impose and collect the tax on
  139         sales, use, and other transactions on mail order
  140         sales; specifying that a dealer is not required to
  141         collect the tax on sales, use, and other transactions
  142         unless certain circumstances exist relating to the
  143         retailer; amending s. 212.12, F.S.;