Florida Senate - 2012                                    SB 1352
       
       
       
       By Senator Detert
       
       
       
       
       23-01256B-12                                          20121352__
    1                        A bill to be entitled                      
    2         An act relating to mail order sales; amending s.
    3         212.0596, F.S.; redefining the term “mail order sale”
    4         to include sales ordered through the Internet;
    5         defining the term “agent”; providing an exception to
    6         provisions that subject a dealer who makes sales
    7         through the Internet to requirements to collect sales
    8         and use taxes; creating a presumption that a dealer is
    9         presumed to be soliciting business through state
   10         residents under certain circumstances; subjecting a
   11         dealer who makes mail order sales to requirements to
   12         collect sales and use taxes if the dealer has a
   13         contract with a person located in this state under
   14         which the dealer sells the same or substantially
   15         similar line of products as the person under certain
   16         circumstances; creating s. 212.05961, F.S.; requiring
   17         a dealer who makes mail order sales and who is not
   18         required to collect sales and use taxes to notify
   19         purchasers of the duty to submit sales and use taxes
   20         to this state; specifying requirements for the notice;
   21         authorizing a dealer to use a consolidated notice that
   22         includes the information required by this state and
   23         another state; providing a contingent effective date.
   24  
   25         WHEREAS, the use of the Internet for shopping and making
   26  purchases has increased in recent years, and
   27         WHEREAS, the United States Census Bureau reports that
   28  national e-commerce sales from November 1, 2010, through October
   29  31, 2011, total more than $180 billion, and
   30         WHEREAS, many retailers who make sales through the Internet
   31  are not located in Florida and are not registered as dealers to
   32  remit sales and use tax to this state, and
   33         WHEREAS, a September 2011 report by Arduin, Laffer, and
   34  Moore Econometrics estimates that, as the result of Internet
   35  purchases, the state lost $374 million in tax revenues in 2010
   36  and will lose between $449.6 million and $454.0 million in tax
   37  revenues in 2012, and
   38         WHEREAS, dealers and purchasers should be required to remit
   39  sales and use taxes on purchases made over the Internet, NOW,
   40  THEREFORE,
   41  
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. Section 212.0596, Florida Statutes, is amended
   45  to read:
   46         212.0596 Taxation of mail order sales.—
   47         (1) As used in For purposes of this chapter, the term a
   48  “mail order sale” means is a sale of tangible personal property,
   49  ordered by mail, ordered through the Internet, or ordered by
   50  other means of communication, from a dealer who receives the
   51  order in another state of the United States, or in a
   52  commonwealth, territory, or other area under the jurisdiction of
   53  the United States, and transports the property or causes the
   54  property to be transported, whether or not by mail, from any
   55  jurisdiction of the United States, including this state, to a
   56  person in this state, including the person who ordered the
   57  property.
   58         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
   59  mail order sale is subject to the power of this state to levy
   60  and collect the tax imposed by this chapter if any of the
   61  following are satisfied when:
   62         (a) The dealer is a corporation doing business under the
   63  laws of this state or a person domiciled in, a resident of, or a
   64  citizen of, this state.;
   65         (b) The dealer maintains retail establishments, or offices,
   66  or warehouses in this state, whether the mail order sales thus
   67  subject to taxation by this state result from or are related in
   68  any other way to the activities of such establishments, or
   69  offices, or warehouses.;
   70         (c) The dealer has an agent agents in this state who
   71  solicits solicit business or transacts transact business on
   72  behalf of the dealer, whether the mail order sales thus subject
   73  to taxation by this state result from or are related in any
   74  other way to such solicitation or transaction of business,
   75  except that a printer who mails or delivers for an out-of-state
   76  print purchaser material the printer printed for it is shall not
   77  be deemed to be the print purchaser’s agent for purposes of this
   78  paragraph.;
   79         1. As used in this paragraph, the term “agent” includes,
   80  but is not limited to, a resident of this state who enters into
   81  a contract with the dealer under which the resident, for a
   82  commission or other consideration, directly or indirectly refers
   83  potential customers to the dealer, whether by a link on an
   84  Internet website or otherwise. This subparagraph does not apply
   85  to a dealer having an agreement with a resident of this state to
   86  refer potential customers to the dealer by a link on an Internet
   87  website or otherwise if the cumulative gross receipts from sales
   88  by the dealer to customers in the state who are referred to the
   89  dealer by all residents under such an agreement are less than
   90  $10,000 during the preceding four quarterly periods ending on
   91  the last day of March, June, September, and December.
   92         2. A dealer is presumed to be soliciting business through
   93  residents who have an agreement with the dealer to refer
   94  customers to the dealer by a link on an Internet website or
   95  otherwise. However, the dealer may rebut this presumption by
   96  showing that the residents with whom the dealer has an agreement
   97  did not engage in any solicitation in the state on behalf of the
   98  dealer which would satisfy the nexus requirement of the United
   99  States Constitution during the preceding four quarterly periods.
  100         (d) The dealer has a contract with a person located in this
  101  state under which the dealer sells the same or substantially
  102  similar line of products as the person and does so using an
  103  identical or substantially similar name, trade name, or
  104  trademark as the person, and provides a commission or other
  105  consideration to the person based upon sales by the dealer. This
  106  paragraph does not apply if the cumulative gross receipts from
  107  sales by the dealer to customers in the state under all such
  108  contracts are less than $10,000 during the preceding four
  109  quarterly periods ending on the last day of March, June,
  110  September, and December.
  111         (e)(d) The property was delivered in this state in
  112  fulfillment of a sales contract that was entered into in this
  113  state, in accordance with applicable conflict of laws rules,
  114  when a person in this state accepted an offer by ordering the
  115  property.;
  116         (f)(e) The dealer, by purposefully or systematically
  117  exploiting the market provided by this state by any media
  118  assisted, media-facilitated, or media-solicited means,
  119  including, but not limited to, direct mail advertising,
  120  unsolicited distribution of catalogs, computer-assisted
  121  shopping, television, radio, or other electronic media, or
  122  magazine or newspaper advertisements or other media, creates
  123  nexus with this state.;
  124         (g)(f) Through compact or reciprocity with another
  125  jurisdiction of the United States, that jurisdiction uses its
  126  taxing power and its jurisdiction over the retailer in support
  127  of this state’s taxing power.;
  128         (h)(g) The dealer consents, expressly or by implication, to
  129  the imposition of the tax imposed by this chapter.;
  130         (i)(h) The dealer is subject to service of process under s.
  131  48.181.;
  132         (j)(i) The dealer’s mail order sales are subject to the
  133  power of this state to tax sales or to require the dealer to
  134  collect use taxes under a statute or statutes of the United
  135  States.;
  136         (k)(j) The dealer owns real property or tangible personal
  137  property that is physically in this state, except that a dealer
  138  whose only property, (including property owned by an affiliate,)
  139  in this state is located at the premises of a printer with which
  140  the vendor has contracted for printing, and is either a final
  141  printed product, or property that which becomes a part of the
  142  final printed product, or property from which the printed
  143  product is produced, is not deemed to own such property for
  144  purposes of this paragraph.;
  145         (l)(k) The dealer, while not having nexus with this state
  146  on any of the bases described in paragraphs (a)­(k) (a)-(j) or
  147  paragraph (m) (l), is a corporation that is a member of an
  148  affiliated group of corporations, as defined in s. 1504(a) of
  149  the Internal Revenue Code, whose members are includable under s.
  150  1504(b) of the Internal Revenue Code and whose members are
  151  eligible to file a consolidated tax return for federal corporate
  152  income tax purposes and any parent or subsidiary corporation in
  153  the affiliated group has nexus with this state on one or more of
  154  the bases described in paragraphs (a)­(k) (a)-(j) or paragraph
  155  (m). (l); or
  156         (m)(l) The dealer or the dealer’s activities have
  157  sufficient connection with or relationship to this state or its
  158  residents of some type other than those described in paragraphs
  159  (a)­(l) (a)-(k) to create nexus empowering this state to tax its
  160  mail order sales or to require the dealer to collect sales tax
  161  or accrue use tax.
  162         (3) Every dealer engaged in the business of making mail
  163  order sales is subject to the requirements of this chapter for
  164  cooperation of dealers in collection of taxes and in
  165  administration of this chapter, except that no fee shall be
  166  imposed upon such dealer for carrying out any required activity.
  167         (4) The department shall, with the consent of another
  168  jurisdiction of the United States whose cooperation is needed,
  169  enforce this chapter in that jurisdiction, either directly or,
  170  at the option of that jurisdiction, through its officers or
  171  employees.
  172         (5) The tax required under this section to be collected and
  173  any amount unreturned to a purchaser that is not tax but was
  174  collected from the purchaser under the representation that it
  175  was tax constitute funds of the State of Florida from the moment
  176  of collection.
  177         (6) Notwithstanding other provisions of law, a dealer who
  178  makes a mail order sale in this state is exempt from collecting
  179  and remitting any local option surtax on the sale, unless the
  180  dealer is located in a county that imposes a surtax within the
  181  meaning of s. 212.054(3)(a), the order is placed through the
  182  dealer’s location in such county, and the property purchased is
  183  delivered into such county or into another county in this state
  184  that levies the surtax, in which case the provisions of s.
  185  212.054(3)(a) are applicable.
  186         (7) The department may establish by rule procedures for
  187  collecting the use tax from unregistered persons who but for
  188  their mail order purchases would not be required to remit sales
  189  or use tax directly to the department. The procedures may
  190  provide for waiver of registration and registration fees,
  191  provisions for irregular remittance of tax, elimination of the
  192  collection allowance, and nonapplication of local option
  193  surtaxes.
  194         Section 2. Section 212.05961, Florida Statutes, is created
  195  to read:
  196         212.05961 Notice for certain mail order sales.—
  197         (1) A dealer who makes a mail order sale but who is not
  198  subject to s. 212.0596 must give notice to the purchaser who
  199  resides in this state that use tax must be paid by the purchaser
  200  on nonexempt purchases of tangible personal property as provided
  201  in s. 212.05.
  202         (2) The notice in this section must be readily visible and
  203  must state that:
  204         (a) The dealer is not required to collect and does not
  205  collect Florida sales and use tax.
  206         (b) The purchase is subject to state use tax unless it is
  207  specifically exempt from taxation.
  208         (c) The purchase is not exempt merely because the purchase
  209  is made over the Internet, by catalog, or by other remote means.
  210         (d) The State of Florida requires each resident to report
  211  any purchase that was not taxed and to pay tax on the purchase.
  212  The tax may be reported and paid on the Florida use tax form.
  213         (e) The use tax form and corresponding instructions are
  214  available on the website of the Florida Department of Revenue.
  215         (3)If a dealer knows that a purchase is exempt from
  216  Florida sales and use tax, the dealer may display or indicate
  217  that no sales or use tax is due.
  218         (4) For purchases occurring through a website, the notice
  219  may be displayed on a page necessary to facilitate the
  220  applicable transaction, on the check-out page, or on any
  221  electronic order confirmation. Notice is sufficient if the
  222  dealer prominently displays a link that reads: “See important
  223  Florida sales and use tax information regarding the tax you may
  224  owe directly to the State of Florida.” The link must direct the
  225  purchaser to the notice required under subsection (2). If the
  226  dealer does not issue an electronic order confirmation, the
  227  notice required under subsection (2) must be prominently
  228  displayed on the purchase order, bill, receipt, sales slip,
  229  order form, or packing statement.
  230         (5) For purchases made from a catalog, the notice required
  231  under subsection (2) must be part of the order form. Notice is
  232  also sufficient if the dealer provides a prominent reference to
  233  a supplemental page that reads as follows: “See important
  234  Florida sales and use tax information regarding the tax you may
  235  owe directly to the state of Florida on page .....”
  236         (6) For any telephone purchases, the notice required under
  237  subsection (2) must be placed on the purchase order, bill,
  238  receipt, sales slip, order form, or packing statement.
  239         (7) If a dealer is required to provide a similar notice for
  240  another state in addition to this state, the dealer may provide
  241  a consolidated notice if the notice includes the information
  242  required under subsection (2), specifically references this
  243  state, and meets the placement requirements of this section.
  244         Section 3. This act shall take effect July 1, 2013, if SJR
  245  1064, or a similar proposed amendment to the State Constitution,
  246  is approved by a vote of the electors in the 2012 General
  247  Election.