Florida Senate - 2012                      CS for CS for SB 1514
       
       
       
       By the Committees on Banking and Insurance; and Commerce and
       Tourism; and Senator Detert
       
       
       
       597-03519-12                                          20121514c2
    1                        A bill to be entitled                      
    2         An act relating to the tax on sales, use, and other
    3         transactions; amending s. 212.06, F.S.; revising the
    4         definition of the term “dealer” for purposes relating
    5         to the collection of the tax on sales, use, and other
    6         transactions; amending s. 212.0596, F.S.; revising the
    7         term “mail order sale” to specifically include sales
    8         of tangible personal property ordered by Internet;
    9         deleting certain provisions that specify dealer
   10         activities or other circumstances that subject mail
   11         order sales to this state’s power to levy and collect
   12         the sales and use tax; providing that certain persons
   13         who make mail order sales and who have a substantial
   14         nexus with this state are subject to this state’s
   15         power to levy and collect the sales and use tax when
   16         they engage in certain enumerated activities;
   17         specifying that dealers are not required to collect
   18         and remit sales and use tax unless certain
   19         circumstances exist; creating a rebuttable presumption
   20         that a dealer is subject to the state’s power to levy
   21         and collect the sales or use tax under specified
   22         circumstances; specifying evidentiary proof that may
   23         be submitted to rebut the presumption; requiring that
   24         the Department of Revenue develop a tracking system,
   25         in consultation with the Revenue Estimating
   26         Conference, to determine the amount of sales tax
   27         remitted by out-of-state dealers who would otherwise
   28         not be required to collect and remit sales taxes but
   29         for the amendments made by the act; requiring that the
   30         department submit a report to the Governor and
   31         Legislature by a specified date each year; requiring
   32         that the report contain certain information; requiring
   33         that the Revenue Estimating Conference use such
   34         information to determine the amount of sales taxes
   35         remitted in the previous calendar year by such out-of
   36         state dealers and estimate the amount that may be
   37         expected in the following fiscal year; requiring that
   38         the Legislature use the information to develop
   39         legislation designed to return the amount of sales
   40         taxes collected to the taxpayers of the state;
   41         providing an effective date.
   42  
   43  Be It Enacted by the Legislature of the State of Florida:
   44  
   45         Section 1. Subsection (2) of section 212.06, Florida
   46  Statutes, is amended to read:
   47         212.06 Sales, storage, use tax; collectible from dealers;
   48  “dealer” defined; dealers to collect from purchasers;
   49  legislative intent as to scope of tax.—
   50         (2)(a) The term “dealer,” as used in this chapter, means
   51  any includes every person who:
   52         (a) Manufactures or produces tangible personal property for
   53  sale at retail; for use, consumption, or distribution; or for
   54  storage to be used or consumed in this state.
   55         (b) The term “dealer” is further defined to mean every
   56  person, as used in this chapter, who Imports, or causes to be
   57  imported, tangible personal property from any state or foreign
   58  country for sale at retail; for use, consumption, or
   59  distribution; or for storage to be used or consumed in this
   60  state.
   61         (c) The term “dealer” is further defined to mean every
   62  person, as used in this chapter, who Sells at retail or who
   63  offers for sale at retail, or who has in his or her possession
   64  for sale at retail; or for use, consumption, or distribution; or
   65  for storage to be used or consumed in this state, tangible
   66  personal property as defined herein, including a retailer who
   67  transacts a mail order sale.
   68         (d) The term “dealer” is further defined to mean any person
   69  who Has sold at retail; or used, or consumed, or distributed; or
   70  stored for use or consumption in this state, tangible personal
   71  property and who cannot prove that the tax levied by this
   72  chapter has been paid on the sale at retail, the use, the
   73  consumption, the distribution, or the storage of such tangible
   74  personal property. However, The term “dealer” does not include
   75  mean a person who is not a “dealer” as otherwise defined in
   76  under the definition of any other paragraph of this subsection
   77  and whose only owned or leased property (including property
   78  owned or leased by an affiliate) in this state is located at the
   79  premises of a printer with which it has contracted for printing,
   80  if such property consists of the final printed product, property
   81  which becomes a part of the final printed product, or property
   82  from which the printed product is produced.
   83         (e) The term “dealer” is further defined to mean any
   84  person, as used in this chapter, who Leases or rents tangible
   85  personal property, as defined in this chapter, for a
   86  consideration, permitting the use or possession of such property
   87  without transferring title thereto, except as expressly provided
   88  for to the contrary in this chapter herein.
   89         (f) The term “dealer” is further defined to mean any
   90  person, as used in this chapter, who Maintains or uses has
   91  within this state, directly or by a subsidiary, an office,
   92  distributing house, salesroom, or house, warehouse, or other
   93  place of business operated by any person other than a common
   94  carrier acting in the capacity of a common carrier.
   95         (g) “Dealer” also means and includes every person who
   96  Solicits business either by direct representatives, indirect
   97  representatives, or manufacturers’ agents; by distribution of
   98  catalogs or other advertising matter; or by any other means
   99  whatsoever, and by reason thereof receives orders for tangible
  100  personal property from consumers for use, consumption,
  101  distribution, and storage for use or consumption in the state;
  102  such dealer shall collect the tax imposed by this chapter from
  103  the purchaser, and no action, either in law or in equity, on a
  104  sale or transaction as provided by the terms of this chapter may
  105  be had in this state by any such dealer unless it is
  106  affirmatively shown that the provisions of this chapter have
  107  been fully complied with.
  108         (h) “Dealer” also means and includes every person who, As a
  109  representative, agent, or solicitor of an out-of-state principal
  110  or principals, solicits, receives, and accepts orders from
  111  consumers in the state for future delivery and whose principal
  112  refuses to register as a dealer.
  113         (i) Constitutes “Dealer” also means and includes the state
  114  or any, county, municipality, district any political
  115  subdivision, agency, bureau, or department, or other state or
  116  local governmental instrumentality.
  117         (j) The term “dealer” is further defined to mean any person
  118  who Leases, or grants a license to use, occupy, or enter upon,
  119  living quarters, sleeping or housekeeping accommodations in
  120  hotels, apartment houses, roominghouses, tourist or trailer
  121  camps, real property, space or spaces in parking lots or garages
  122  for motor vehicles, docking or storage space or spaces for boats
  123  in boat docks or marinas, or tie-down or storage space or spaces
  124  for aircraft at airports. The term includes “dealer” also means
  125  any person who has leased, occupied, or used or was entitled to
  126  use any living quarters, sleeping or housekeeping accommodations
  127  in hotels, apartment houses, roominghouses, tourist or trailer
  128  camps, real property, space or spaces in parking lots or garages
  129  for motor vehicles, or docking or storage space or spaces for
  130  boats in boat docks or marinas, or who has purchased
  131  communication services or electric power or energy, and who
  132  cannot prove that the tax levied by this chapter has been paid
  133  to the vendor or lessor on any such transactions. The term
  134  “dealer” does not include any person who leases, lets, rents, or
  135  grants a license to use, occupy, or enter upon any living
  136  quarters, sleeping quarters, or housekeeping accommodations in
  137  apartment houses, roominghouses, tourist camps, or trailer
  138  camps, and who exclusively enters into a bona fide written
  139  agreement for continuous residence for longer than 6 months in
  140  duration with any person who leases, lets, rents, or is granted
  141  a license to use such property.
  142         (k) “Dealer” also means any person who Sells, provides, or
  143  performs a service taxable under this chapter. The term includes
  144  “Dealer” also means any person who purchases, uses, or consumes
  145  a service taxable under this chapter who cannot prove that the
  146  tax levied by this chapter has been paid to the seller of the
  147  taxable service.
  148         (l) “Dealer” also means any person who Solicits, offers,
  149  provides, enters into, issues, or delivers any service warranty
  150  taxable under this chapter, or who receives, on behalf of such a
  151  person, any consideration from a service warranty holder.
  152         Section 2. Section 212.0596, Florida Statutes, is amended
  153  to read:
  154         212.0596 Taxation of mail order sales.—
  155         (1) For purposes of this chapter, a “mail order sale” is a
  156  sale of tangible personal property, ordered by mail, Internet,
  157  or other means of communication, from a dealer who receives the
  158  order in another state of the United States, or in a
  159  commonwealth, territory, or other area under the jurisdiction of
  160  the United States, and transports the property or causes the
  161  property to be transported, whether or not by mail, from any
  162  jurisdiction of the United States, including this state, to a
  163  person in this state, including the person who ordered the
  164  property.
  165         (2) Every dealer as defined in s. 212.06(2)(c) who makes a
  166  mail order sale is subject to the power of this state to levy
  167  and collect the tax imposed by this chapter when:
  168         (a) The dealer is a corporation doing business under the
  169  laws of this state or is a person domiciled in, a resident of,
  170  or a citizen of, this state;
  171         (b) The dealer maintains retail establishments or offices
  172  in this state, whether the mail order sales thus subject to
  173  taxation by this state result from or are related in any other
  174  way to the activities of such establishments or offices;
  175         (c) The dealer has agents or representatives in this state
  176  who solicit business or transact business on behalf of the
  177  dealer, whether the mail order sales thus subject to taxation by
  178  this state result from or are related in any other way to such
  179  solicitation or transaction of business, except that a printer
  180  who mails or delivers for an out-of-state print purchaser
  181  material the printer printed for it is shall not be deemed to be
  182  the print purchaser’s agent or representative for purposes of
  183  this paragraph;
  184         (d) The property was delivered in this state in fulfillment
  185  of a sales contract that was entered into in this state, in
  186  accordance with applicable conflict of laws rules, when a person
  187  in this state accepted an offer by ordering the property;
  188         (e) The dealer, by purposefully or systematically
  189  exploiting the market provided by this state by any media
  190  assisted, media-facilitated, or media-solicited means,
  191  including, but not limited to, direct mail advertising,
  192  unsolicited distribution of catalogs, computer-assisted
  193  shopping, television, radio, or other electronic media, or
  194  magazine or newspaper advertisements or other media, creates
  195  nexus with this state;
  196         (f) Through compact or reciprocity with another
  197  jurisdiction of the United States, that jurisdiction uses its
  198  taxing power and its jurisdiction over the retailer in support
  199  of this state’s taxing power;
  200         (d)(g) The dealer consents, expressly or by implication, to
  201  the imposition of the tax imposed by this chapter;
  202         (h) The dealer is subject to service of process under s.
  203  48.181;
  204         (e)(i) The dealer’s mail order sales are subject to the
  205  power of this state to tax sales or to require the dealer to
  206  collect use taxes under a statute or statutes of the United
  207  States;
  208         (f)(j) The dealer owns real property or tangible personal
  209  property that is physically in this state, except that a dealer
  210  whose only property (including property owned by an affiliate)
  211  in this state is located at the premises of a printer with which
  212  the vendor has contracted for printing, and is either a final
  213  printed product, or property which becomes a part of the final
  214  printed product, or property from which the printed product is
  215  produced, is not deemed to own such property for purposes of
  216  this paragraph;
  217         (g)(k)A person, other than a person acting in the capacity
  218  of a common carrier, The dealer, while not having nexus with
  219  this state on any of the bases described in paragraphs (a)-(j)
  220  or paragraph (l), is a corporation that is a member of an
  221  affiliated group of corporations, as defined in s. 1504(a) of
  222  the Internal Revenue Code, whose members are includable under s.
  223  1504(b) of the Internal Revenue Code and whose members are
  224  eligible to file a consolidated tax return for federal corporate
  225  income tax purposes and any parent or subsidiary corporation in
  226  the affiliated group has substantial nexus with this state and:
  227         1. Sells a similar line of products as the dealer and does
  228  so under the same or a similar business name;
  229         2. Maintains an office, distribution facility, warehouse,
  230  storage place, or similar place of business in this state to
  231  facilitate the delivery of property or services sold by the
  232  dealer to the dealer’s customers;
  233         3. Uses trademarks, service marks, or trade names in this
  234  state which are the same or substantially similar to those used
  235  by the dealer;
  236         4. Delivers, installs, assembles, or performs maintenance
  237  services for the dealer’s customers in this state;
  238         5. Facilitates the dealer’s delivery of property to
  239  customers in this state by allowing the dealer’s customers to
  240  pick up property sold by the dealer at an office, distribution
  241  facility, warehouse, storage place, or similar place of business
  242  maintained by the person in this state; or
  243         6. Conducts any other activities in this state which are
  244  significantly associated with the dealer’s ability to establish
  245  and maintain a market in this state for the dealer’s sales on
  246  one or more of the bases described in paragraphs (a)-(j) or
  247  paragraph (l); or
  248         (h)(l) The dealer or the dealer’s activities have
  249  sufficient connection with or relationship to this state or its
  250  residents of some type other than those described in paragraphs
  251  (a)-(g) (a)-(k) to create nexus empowering this state to tax its
  252  mail order sales or to require the dealer to collect sales tax
  253  or accrue use tax.
  254  
  255  Notwithstanding other provisions of law, a dealer is not
  256  required to collect and remit sales or use tax under this
  257  subsection unless the dealer has a physical presence in this
  258  state or the activities conducted in this state on the dealer’s
  259  behalf are significantly associated with the dealer’s ability to
  260  establish and maintain a market for sales in this state.
  261         (3)(a) Notwithstanding other provisions of law or this
  262  section, there is established a rebuttable presumption that
  263  every dealer, as defined in s. 212.06(2), who makes a mail order
  264  sale is also subject to the power of this state to levy and
  265  collect the tax imposed by this chapter if the dealer enters
  266  into an agreement with one or more residents of this state under
  267  which the resident, for a commission or other consideration,
  268  directly or indirectly refers potential customers, whether by a
  269  link on an Internet website, an in-person oral presentation,
  270  telemarketing, or otherwise, to the dealer, if the cumulative
  271  gross receipts from sales by the dealer to customers in this
  272  state who are referred to the dealer by all residents having
  273  this type of an agreement with the dealer is in excess of
  274  $10,000 during the 12-month period immediately before the
  275  rebuttable presumption arose.
  276         (b) The presumption in paragraph (a) may be rebutted by the
  277  submission of evidence proving that the residents with whom the
  278  dealer has an agreement did not engage in any activity within
  279  this state which was significantly associated with the dealer’s
  280  ability to establish or maintain the dealer’s market in this
  281  state during the 12 months immediately before the rebuttable
  282  presumption arose. The evidence may consist of sworn affidavits,
  283  obtained and given in good faith, from each resident with whom
  284  the dealer has an agreement attesting that he or she did not
  285  engage in any solicitation in this state on the dealer’s behalf
  286  during the previous year.
  287         (4)(3) Every dealer engaged in the business of making mail
  288  order sales is subject to the requirements of this chapter for
  289  cooperation of dealers in collection of taxes and in
  290  administration of this chapter, except that no fee shall be
  291  imposed upon such dealer for carrying out any required activity.
  292         (5)(4) The department shall, with the consent of another
  293  jurisdiction of the United States whose cooperation is needed,
  294  enforce this chapter in that jurisdiction, either directly or,
  295  at the option of that jurisdiction, through its officers or
  296  employees.
  297         (6)(5) The tax required under this section to be collected
  298  and any amount unreturned to a purchaser that is not tax but was
  299  collected from the purchaser under the representation that it
  300  was tax constitute funds of the State of Florida from the moment
  301  of collection.
  302         (7)(6) Notwithstanding other provisions of law, a dealer
  303  who makes a mail order sale in this state is exempt from
  304  collecting and remitting any local option surtax on the sale,
  305  unless the dealer is located in a county that imposes a surtax
  306  within the meaning of s. 212.054(3)(a), the order is placed
  307  through the dealer’s location in such county, and the property
  308  purchased is delivered into such county or into another county
  309  in this state that levies the surtax, in which case the
  310  provisions of s. 212.054(3)(a) are applicable.
  311         (8)(7) The department may establish by rule procedures for
  312  collecting the use tax from unregistered persons who but for
  313  their mail order purchases would not be required to remit sales
  314  or use tax directly to the department. The procedures may
  315  provide for waiver of registration and registration fees,
  316  provisions for irregular remittance of tax, elimination of the
  317  collection allowance, and nonapplication of local option
  318  surtaxes.
  319         Section 3. (1) The Department of Revenue shall develop a
  320  tracking system, in consultation with the Revenue Estimating
  321  Conference, to determine the amount of sales taxes remitted by
  322  out–of-state dealers who would otherwise not be required to
  323  collect and remit sales taxes in the absence of the amendments
  324  made to s. 212.0596, Florida Statutes, in section 2 of this act.
  325  By February 1 of each year, the Department of Revenue shall
  326  submit a report to the Governor, the President of the Senate,
  327  and the Speaker of the House of Representatives which sets forth
  328  the amount of sales taxes collected and remitted by such dealers
  329  in the previous calendar year and the methodology used to
  330  determine the amount.
  331         (2) By March 1 of each year, the Revenue Estimating
  332  Conference shall use the information provided by the Department
  333  of Revenue pursuant to subsection (1) to determine the amount of
  334  sales taxes remitted in the previous calendar year by such out
  335  of-state dealers who would otherwise not be required to collect
  336  and remit sales taxes and estimate the amount that may be
  337  expected in the following fiscal year.
  338         (3) The Legislature shall use the information provided by
  339  the Department of Revenue and the Revenue Estimating Conference
  340  to develop legislation designed to return the amount of those
  341  sales taxes collected to the taxpayers of this state. The
  342  Legislature may accomplish this by establishing one or more
  343  sales tax holidays designed to reduce tax collections in an
  344  amount not less than the amounts determined by the Revenue
  345  Estimating Conference. If the amounts collected are determined
  346  to be of a recurring nature and sufficient to lower the tax rate
  347  set forth in chapter 212, Florida Statutes, the Legislature may
  348  lower the tax rate and implement other tax relief as it deems
  349  appropriate.
  350         Section 4. This act shall take effect July 1, 2012.