HB 861

1	A bill to be entitled
2	An act relating to the tax on sales, use, and other
3	transactions; amending s. 212.0596, F.S.; revising the
4	definition of "mail order sale" to include the sale of
5	tangible personal property ordered by use of the
6	Internet for purposes relating to the imposition and
7	collection of the tax on sales, use, and other
8	transactions; revising the conditions, requirements,
9	and criteria that subject a dealer to the state's
10	power to impose and collect the tax on sales, use, and
11	other transactions on mail order sales; specifying
12	that a dealer is not required to collect the tax on
13	sales, use, and other transactions unless certain
14	circumstances exist relating to the retailer; amending
15	s. 212.06, F.S.; revising the definition of the term
16	"dealer" for purposes relating to the imposition and
17	collection of the tax on sales, use, and other
18	transactions from dealers; amending s. 212.0506, F.S.;
19	conforming a cross-reference; providing an effective
20	date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Subsections (1) and (2) of section 212.0596,
25	Florida Statutes, are amended to read:
26	212.0596  Taxation of mail order sales.-
27	(1)  For purposes of this chapter, a "mail order sale" is a
28	sale of tangible personal property, ordered by mail, use of the
29	Internet, or other means of communication, from a dealer who
30	receives the order in another state of the United States, or in
31	a commonwealth, territory, or other area under the jurisdiction
32	of the United States, and transports the property or causes the
33	property to be transported, whether or not by mail, from any
34	jurisdiction of the United States, including this state, to a
35	person in this state, including the person who ordered the
36	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 when:
40	(a)  The dealer is a corporation doing business under the
41	laws of this state or a person domiciled in, a resident of, or a
42	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 in this state who solicit
48	business or transact business on behalf of the dealer, whether
49	the mail order sales thus subject to taxation by this state
50	result from or are related in any other way to such solicitation
51	or transaction of business, except that a printer who mails or
52	delivers for an out-of-state print purchaser material the
53	printer printed for it shall not be deemed to be the print
54	purchaser's agent for purposes of this paragraph;
55	(d)  The property was delivered in this state in
56	fulfillment of a sales contract that was entered into in this
57	state, in accordance with applicable conflict of laws rules,
58	when a person in this state accepted an offer by ordering the
59	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,
73	to 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 (including property owned by an affiliate)
83	in this state is located at the premises of a printer with which
84	the vendor has contracted for printing, and is either a final
85	printed product, or property which becomes a part of the final
86	printed product, or property from which the printed product is
87	produced, is not deemed to own such property for purposes of
88	this paragraph;
89	(g)(k)  The dealer and any affiliated person that,
90	notwithstanding its form of organization, bears the same
91	relationship to the dealer as, while not having nexus with this
92	state on any of the bases described in paragraphs (a)-(j) or
93	paragraph (l), is a corporation that is a member of an
94	affiliated group of corporations, as defined in s. 1504(a) of
95	the Internal Revenue Code, whose members are includable under s.
96	1504(b) of the Internal Revenue Code, and whose members are
97	eligible to file a consolidated tax return for federal corporate
98	income tax purposes bears to and any parent or subsidiary
99	corporation in the affiliated group; the affiliated person has
100	nexus with this state; and: on one or more of the bases
101	described in paragraphs (a)-(j) or paragraph (l); or
102	1.  The dealer sells a similar line of products as the
103	affiliated person and does so under the same or a similar
104	business name;
105	2.  The affiliated person uses its in-state employees or
106	in-state facilities to advertise, promote, or facilitate sales
107	by the dealer to customers;
108	3.  The affiliated person maintains an office, distribution
109	facility, warehouse, storage place, or similar place of business
110	in this state to facilitate the delivery of property or services
111	sold by the dealer to the dealer's customers;
112	4.  The affiliated person uses trademarks, service marks,
113	or trade names in this state that are the same or substantially
114	similar to those used by the dealer; or
115	5.  The affiliated person delivers, installs, assembles, or
116	performs maintenance services for the dealer's customers within
117	this state;
118	(h)  The dealer has an arrangement with any person pursuant
119	to which that person performs services in this state for the
120	dealer's customers on behalf of the dealer, including, but not
121	limited to, installation, assembly, maintenance, or repair
122	services;
123	(i)  The dealer has an arrangement with any person, other
124	than a common carrier, pursuant to which that person facilitates
125	the dealer's delivery of property to customers in this state by
126	allowing the dealer's customers to pick up property sold by the
127	person at an office, distribution facility, warehouse, storage
128	place, or similar place of business maintained by the dealer in
129	this state; or
130	(j)(l)  The dealer or the dealer's activities have
131	sufficient connection with or relationship to this state or its
132	residents of some type other than those described in paragraphs
133	(a)-(i) (a)-(k) to create nexus empowering this state to tax its
134	mail order sales or to require the dealer to collect sales tax
135	or accrue use tax.
136
137	Notwithstanding any provision to the contrary, a dealer is not
138	required to collect and remit sales or use tax under this
139	subsection unless the retailer has a physical presence in this
140	state or the activities conducted in this state on the
141	retailer's behalf are significantly associated with the dealer's
142	ability to establish and maintain a market for sales in this
143	state.
144	Section 2.  Subsection (2) of section 212.06, Florida
145	Statutes, is amended to read:
146	212.06  Sales, storage, use tax; collectible from dealers;
147	"dealer" defined; dealers to collect from purchasers;
148	legislative intent as to scope of tax.-
149	(2)(a)  The term "dealer," as used in this chapter,
150	includes every person who manufactures or produces tangible
151	personal property for sale at retail; for use, consumption, or
152	distribution; or for storage to be used or consumed in this
153	state.
154	(b)  The term "dealer" is further defined to mean every
155	person, as used in this chapter, who imports, or causes to be
156	imported, tangible personal property from any state or foreign
157	country for sale at retail; for use, consumption, or
158	distribution; or for storage to be used or consumed in this
159	state.
160	(c)  The term "dealer" is further defined to mean every
161	person, as used in this chapter, who sells at retail or who
162	offers for sale at retail, or who has in his or her possession
163	for sale at retail; or for use, consumption, or distribution; or
164	for storage to be used or consumed in this state, tangible
165	personal property as defined herein, including a retailer who
166	transacts a mail order sale.
167	(d)  The term "dealer" is further defined to mean any
168	person who has sold at retail; or used, or consumed, or
169	distributed; or stored for use or consumption in this state,
170	tangible personal property and who cannot prove that the tax
171	levied by this chapter has been paid on the sale at retail, the
172	use, the consumption, the distribution, or the storage of such
173	tangible personal property. However, the term "dealer" does not
174	mean a person who is not a "dealer" under the definition of any
175	other paragraph of this subsection and whose only owned or
176	leased property (including property owned or leased by an
177	affiliate) in this state is located at the premises of a printer
178	with which it has contracted for printing, if such property
179	consists of the final printed product, property which becomes a
180	part of the final printed product, or property from which the
181	printed product is produced.
182	(e)  The term "dealer" is further defined to mean any
183	person, as used in this chapter, who leases or rents tangible
184	personal property, as defined in this chapter, for a
185	consideration, permitting the use or possession of such property
186	without transferring title thereto, except as expressly provided
187	for to the contrary herein.
188	(f)  The term "dealer" is further defined to mean any
189	person, as used in this chapter, who maintains or has within
190	this state, directly or by an affiliated person as defined in s.
191	212.0596(2)(g) a subsidiary, an office, distributing house,
192	salesroom, or house, warehouse, or other place of business.
193	(g)  "Dealer" also means and includes every person who
194	solicits business either by direct representatives, indirect
195	representatives, or manufacturers' agents; by distribution of
196	catalogs or other advertising matter; or by any other means
197	whatsoever, and by reason thereof receives orders for tangible
198	personal property from consumers for use, consumption,
199	distribution, and storage for use or consumption in the state;
200	such dealer shall collect the tax imposed by this chapter from
201	the purchaser, and no action, either in law or in equity, on a
202	sale or transaction as provided by the terms of this chapter may
203	be had in this state by any such dealer unless it is
204	affirmatively shown that the provisions of this chapter have
205	been fully complied with.
206	(g)(h)  "Dealer" also means and includes every person who,
207	as a representative, agent, or solicitor of an out-of-state
208	principal or principals, solicits, receives, and accepts orders
209	from consumers in the state for future delivery and whose
210	principal refuses to register as a dealer.
211	(h)(i)  "Dealer" also means and includes the state, county,
212	municipality, any political subdivision, agency, bureau or
213	department, or other state or local governmental
214	instrumentality.
215	(i)(j)  The term "dealer" is further defined to mean any
216	person who leases, or grants a license to use, occupy, or enter
217	upon, living quarters, sleeping or housekeeping accommodations
218	in hotels, apartment houses, roominghouses, tourist or trailer
219	camps, real property, space or spaces in parking lots or garages
220	for motor vehicles, docking or storage space or spaces for boats
221	in boat docks or marinas, or tie-down or storage space or spaces
222	for aircraft at airports. The term "dealer" also means any
223	person who has leased, occupied, or used or was entitled to use
224	any living quarters, sleeping or housekeeping accommodations in
225	hotels, apartment houses, roominghouses, tourist or trailer
226	camps, real property, space or spaces in parking lots or garages
227	for motor vehicles or docking or storage space or spaces for
228	boats in boat docks or marinas, or who has purchased
229	communication services or electric power or energy, and who
230	cannot prove that the tax levied by this chapter has been paid
231	to the vendor or lessor on any such transactions. The term
232	"dealer" does not include any person who leases, lets, rents, or
233	grants a license to use, occupy, or enter upon any living
234	quarters, sleeping quarters, or housekeeping accommodations in
235	apartment houses, roominghouses, tourist camps, or trailer
236	camps, and who exclusively enters into a bona fide written
237	agreement for continuous residence for longer than 6 months in
238	duration with any person who leases, lets, rents, or is granted
239	a license to use such property.
240	(j)(k)  "Dealer" also means any person who sells, provides,
241	or performs a service taxable under this chapter. "Dealer" also
242	means any person who purchases, uses, or consumes a service
243	taxable under this chapter who cannot prove that the tax levied
244	by this chapter has been paid to the seller of the taxable
245	service.
246	(k)(l)  "Dealer" also means any person who solicits,
247	offers, provides, enters into, issues, or delivers any service
248	warranty taxable under this chapter, or who receives, on behalf
249	of such a person, any consideration from a service warranty
250	holder.
251	Section 3.  Subsection (11) of section 212.0506, Florida
252	Statutes, is amended to read:
253	212.0506  Taxation of service warranties.-
254	(11)  Any duties imposed by this chapter upon dealers of
255	tangible personal property with respect to collecting and
256	remitting taxes; making returns; keeping books, records, and
257	accounts; and complying with the rules and regulations of the
258	department apply to all dealers as defined in s. 212.06(2)(k)
259	212.06(2)(l).
260	Section 4.  This act shall take effect July 1, 2012.

CODING: Words stricken are deletions; words underlined are additions.