Florida Senate - 2013                                      SB 88
       By Senator Margolis
       35-00152A-13                                            201388__
    1                        A bill to be entitled                      
    2         An act relating to mail order sales; amending s.
    3         212.0596, F.S.; revising the term “mail order sale” to
    4         specifically include sales of tangible personal
    5         property ordered by Internet; deleting certain
    6         provisions that specify dealer activities or other
    7         circumstances that subject mail order sales to this
    8         state’s power to levy and collect the sales and use
    9         tax; providing that certain persons who make mail
   10         order sales and who have a substantial nexus with this
   11         state are subject to this state’s power to levy and
   12         collect the sales and use tax if they engage in
   13         certain enumerated activities; specifying that a
   14         dealer is not required to collect and remit sales and
   15         use tax unless certain circumstances exist; creating a
   16         rebuttable presumption that a dealer is subject to the
   17         state’s power to levy and collect the sales or use tax
   18         under specified circumstances; specifying evidentiary
   19         proof that may be submitted to rebut the presumption;
   20         providing an effective date.
   22  Be It Enacted by the Legislature of the State of Florida:
   24         Section 1. Section 212.0596, Florida Statutes, is amended
   25  to read:
   26         212.0596 Taxation of mail order sales.—
   27         (1) As used in For purposes of this chapter, the term a
   28  “mail order sale” means is a sale of tangible personal property,
   29  ordered by mail, Internet, or other means of communication, from
   30  a dealer who receives the order in another state of the United
   31  States, or in a commonwealth, territory, or other area under the
   32  jurisdiction of the United States, and who transports the
   33  property or causes the property to be transported, whether or
   34  not by mail, from any jurisdiction of the United States,
   35  including this state, to a person in this state, including the
   36  person who ordered the property.
   37         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
   38  mail order sale is subject to the power of this state to levy
   39  and collect the tax imposed by this chapter if when:
   40         (a) The dealer is a corporation doing business under the
   41  laws of this state or is a person domiciled in, or a resident or
   42  a citizen of, or a citizen of, this state;
   43         (b) The dealer maintains retail establishments or offices
   44  in this state, whether the mail order sales thus subject to
   45  taxation by this state result from or are related in any other
   46  way to the activities of such establishments or offices;
   47         (c) The dealer has agents or representatives in this state
   48  who solicit business or transact business on behalf of the
   49  dealer, whether the mail order sales thus subject to taxation by
   50  this state result from or are related in any other way to such
   51  solicitation or transaction of business, except that a printer
   52  who mails or delivers for an out-of-state print purchaser
   53  material that the printer printed for an out-of-state print
   54  purchaser is it shall not be deemed to be the print purchaser’s
   55  agent or representative for purposes of this paragraph;
   56         (d) The property was delivered in this state in fulfillment
   57  of a sales contract that was entered into in this state, in
   58  accordance with applicable conflict of laws rules, when a person
   59  in this state accepted an offer by ordering the property;
   60         (e) The dealer, by purposefully or systematically
   61  exploiting the market provided by this state by any media
   62  assisted, media-facilitated, or media-solicited means,
   63  including, but not limited to, direct mail advertising,
   64  unsolicited distribution of catalogs, computer-assisted
   65  shopping, television, radio, or other electronic media, or
   66  magazine or newspaper advertisements or other media, creates
   67  nexus with this state;
   68         (f) Through compact or reciprocity with another
   69  jurisdiction of the United States, that jurisdiction uses its
   70  taxing power and its jurisdiction over the retailer in support
   71  of this state’s taxing power;
   72         (d)(g) The dealer consents, expressly or by implication, to
   73  the imposition of the tax imposed by this chapter;
   74         (h) The dealer is subject to service of process under s.
   75  48.181;
   76         (e)(i) The dealer’s mail order sales are subject to the
   77  power of this state to tax sales or to require the dealer to
   78  collect use taxes under a statute or statutes of the United
   79  States;
   80         (f)(j) The dealer owns real property or tangible personal
   81  property that is physically in this state, except that a dealer
   82  whose only property in this state, (including property owned by
   83  an affiliate,) in this state is located at the premises of a
   84  printer with which the vendor has contracted for printing, and
   85  is either a final printed product, or property that which
   86  becomes a part of the final printed product, or property from
   87  which the printed product is produced, is not deemed to own such
   88  property for purposes of this paragraph;
   89         (g)(k)A person, other than a person acting in the capacity
   90  of a common carrier, The dealer, while not having nexus with
   91  this state on any of the bases described in paragraphs (a)-(j)
   92  or paragraph (l), is a corporation that is a member of an
   93  affiliated group of corporations, as defined in s. 1504(a) of
   94  the Internal Revenue Code, whose members are includable under s.
   95  1504(b) of the Internal Revenue Code and whose members are
   96  eligible to file a consolidated tax return for federal corporate
   97  income tax purposes and any parent or subsidiary corporation in
   98  the affiliated group has substantial nexus with this state and:
   99         1. Sells a similar line of products as the dealer and does
  100  so under the same or a similar business name;
  101         2. Maintains an office, distribution facility, warehouse,
  102  storage place, or similar place of business in this state to
  103  facilitate the delivery of property or services sold by the
  104  dealer to the dealer’s customers;
  105         3. Uses trademarks, service marks, or trade names in this
  106  state which are the same or substantially similar to those used
  107  by the dealer;
  108         4. Delivers, installs, assembles, or performs maintenance
  109  services for the dealer’s customers in this state;
  110         5. Facilitates the dealer’s delivery of property to
  111  customers in this state by allowing the dealer’s customers to
  112  pick up property sold by the dealer at an office, distribution
  113  facility, warehouse, storage place, or similar place of business
  114  maintained by the person in this state; or
  115         6. Conducts any other activities in this state which are
  116  significantly associated with the dealer’s ability to establish
  117  and maintain a market in this state for the dealer’s sales on
  118  one or more of the bases described in paragraphs (a)-(j) or
  119  paragraph (l); or
  120         (h)(l) The dealer or the dealer’s activities have
  121  sufficient connection with or relationship to this state or its
  122  residents of some type other than those described in paragraphs
  123  (a)-(g) (a)-(k) to create a nexus empowering this state to tax
  124  its mail order sales or to require the dealer to collect sales
  125  tax or accrue use tax.
  127  Notwithstanding other provisions of law, a dealer is not
  128  required to collect and remit sales or use tax under this
  129  section unless the dealer has a physical presence in this state
  130  or the activities conducted in this state on the dealer’s behalf
  131  are significantly associated with the dealer’s ability to
  132  establish and maintain a market for sales in this state.
  133         (3)(a) Notwithstanding other provisions of law, there is
  134  established a rebuttable presumption that every dealer as
  135  defined in s. 212.06(2) who makes a mail order sale is also
  136  subject to the power of this state to levy and collect the tax
  137  imposed by this chapter if the dealer enters into an agreement
  138  with one or more residents of this state under which the
  139  resident, for a commission or other consideration, directly or
  140  indirectly refers potential customers to the dealer, whether by
  141  a link on an Internet website, an in-person oral presentation,
  142  telemarketing, or otherwise, and if the cumulative gross
  143  receipts from sales by the dealer to the customers in this state
  144  who are referred to the dealer by all residents having this type
  145  of an agreement with the dealer are more than $10,000 during the
  146  12-month period immediately before the rebuttable presumption
  147  arose.
  148         (b) The presumption in paragraph (a) may be rebutted by the
  149  submission of evidence proving that the residents with whom the
  150  dealer has an agreement did not engage in any activity within
  151  this state which was significantly associated with the dealer’s
  152  ability to establish or maintain the dealer’s market in this
  153  state during the 12 months immediately before the rebuttable
  154  presumption arose. The evidence may consist of sworn affidavits,
  155  obtained and given in good faith, from each resident with whom
  156  the dealer has an agreement attesting that he or she did not
  157  engage in any solicitation in this state on the dealer’s behalf
  158  during the 12-month period immediately before the rebuttable
  159  presumption arose.
  160         (4)(3)Each Every dealer engaged in the business of making
  161  mail order sales is subject to the requirements of this chapter
  162  for cooperation of dealers in collection of taxes and in
  163  administration of this chapter, except that no fee shall be
  164  imposed upon such dealer for carrying out any required activity.
  165         (5)(4) The department shall, with the consent of another
  166  jurisdiction of the United States whose cooperation is needed,
  167  enforce this chapter in that jurisdiction, either directly or,
  168  at the option of that jurisdiction, through its officers or
  169  employees.
  170         (6)(5) The tax required under this section to be collected
  171  and any amount unreturned to a purchaser which that is not tax
  172  but was collected from the purchaser under the representation
  173  that it was tax constitute funds of the State of Florida from
  174  the moment of collection.
  175         (7)(6) Notwithstanding other provisions of law, a dealer
  176  who makes a mail order sale in this state is exempt from
  177  collecting and remitting any local option surtax on the sale,
  178  unless the dealer is located in a county that imposes a surtax
  179  within the meaning of s. 212.054(3)(a), the order is placed
  180  through the dealer’s location in such county, and the property
  181  purchased is delivered into such county or into another county
  182  in this state which that levies the surtax, in which case the
  183  provisions of s. 212.054(3)(a) are applicable.
  184         (8)(7) The department may establish by rule procedures for
  185  collecting the use tax from unregistered persons who but for
  186  their mail order purchases would not be required to remit sales
  187  or use tax directly to the department. The procedures may
  188  provide for waiver of registration and registration fees,
  189  provisions for irregular remittance of tax, elimination of the
  190  collection allowance, and nonapplication of local option
  191  surtaxes.
  192         Section 2. This act shall take effect July 1, 2013.