ANALYSIS OF FLORIDA ECONOMIC NEXUS BILLS

There are two bills before the Florida legislature concerning economic nexus and marketplace facilitator laws that would require out-of-state sellers to collect sales tax on sales into Florida or the marketplace facilitator, such as Amazon, to collect for the out of state seller. This article will provide an analysis of the Florida Senate bill in its current form. A similar bill is currently in the Florida House. A copy of both bills may be downloaded at the end of this article.

Initially, the bill amends Section 212.02(14)(e) and creates (14)(f), Florida Statutes (“F.S.”). Subsection (14)(e) is amended to read remote sales and not mail-order sales are included in the term “retail sale” while the newly created (14)(f) states a retail sale includes a sale via a marketplace. From there, the bill changes mail order sales to remote sales as being considered subject to sales tax in Florida per Section 212.05, F.S.

Per section 4 of the bill beginning on line 585 and going until line 713, the bill removes reference to mail order sales throughout Section 212.0596, F.S., and replaces such references with remote sales, inclusive of sales via the telephone or internet. The term includes the origin of the sale being anywhere outside of the state with the goods coming into Florida to be delivered to a purchaser. It is via this avenue the bill states that any dealer making a remote sale through one of various avenues will be required to collect tax. One method of being required to collect tax, which is new, is by making a substantial number of remote sales, which is defined to mean 200 or more retail sales of tangible personal property in the previous calendar year and delivered in Florida; or retail sales of tangible personal property in an amount greater than $100,000 in the previous calendar year that are delivered in Florida.

Next, the bill adds a new section entitled “Taxation of marketplace sellers” under Section 212.05965, F.S. This is done on lines 714 – 843. This section is designed to capture Amazon with respect to third-party sellers as well as eBay and other similar marketplaces. Specifically, this newly-created provision says a marketplace seller is anyone who agrees to make sales through a marketplace provider. The bill defines a marketplace provider as anyone, person or business, who facilitates a retail sale by a marketplace seller by listing/advertising tangible personal property for sale and collects payment from the customer to the seller, regardless of whether the facilitator receives payment. However, the proposed definition excludes travel agent services (arranging, booking, or facilitating a vacation, travel package, car rental, travel reservation, tickets for transportation, or hotel accommodations). Also excluded from the proposed definition is a delivery network company, unless the company is registered for sales tax purposes and notifies all local merchants that sell through the company’s website or mobile app that the company is subject to this provision (a delivery network company means a person who maintains a website or mobile app that facilitates delivery services, the sale of local products, or both).

The bill requires a marketplace provider to collect tax if the marketplace provider is physically present in Florida or makes sales in an amount greater than $100,000 or 200 sales of tangible personal property in the prior calendar year. The marketplace provider must certify to the marketplace sellers the provider will collect and remit the tax. In such cases, the marketplace seller cannot collect and remit tax on those transactions sold through the marketplace provider. The marketplace seller excludes from its sales tax returns the sales made on the marketplace through the marketplace seller that has provided such certification.

For a marketplace seller that is a remote seller, the sales made through the marketplace will not count in determining whether the marketplace seller must register with Florida via the $100,000 or 200 transaction standard mentioned previously. Marketplace providers and marketplace sellers may contractually agree that if the marketplace provider pays the sales tax for a sale facilitated through the marketplace for a marketplace seller as a result of an audit, the marketplace provider has the right to recover the tax, penalties, and interest, from the marketplace seller.

From here, and via section 6 of the bill, the bill amends Section 212.06(2)(c) to define a dealer as one making a remote sale or is a marketplace provider. In the next section of the bill, the bill seeks to change Section 212.12, F.S., to remove references to mail order sales as well as language that would have allowed a larger collection allowance than normal for mail order sellers. By sections 8 and 9 of the bill, Sections 212.18 and 212.20, F.S., respectively, have references to “mail order” changed to “remote” such that it is remote sales that are being referenced.

Pursuant to the bill, the Department is allowed to adopt emergency rules to implement the bill’s provisions and such authorization will remain effective from when the bill becomes law until July 1, 2021.

In whole and unless said otherwise, the bill would go into effect July 1, 2020.

With respect to the bill in the Florida House, the bill is substantially similar to the Senate bill. The biggest difference is the House bill makes an amendment to allow the Department of Revenue to contract with an auditing agency to audit remote sellers in certain circumstances.

Florida Department of Revenue Letter; Florida Sales Tax Attorney; Florida Sales Tax Audit; Florida Sales Tax Audit Defense; Florida Department of Revenue Audit; Florida Wayfair NexusAbout the author: David Brennan is an associate attorney with Moffa, Sutton, & Donnini, P.A. His primary practice area is multistate tax controversy. David received a B.S. in Accounting and Finance, with a minor in Computer Science, from Florida State University. He worked as an accountant for a CPA firm before attending law school at Regent University. He received his Juris Doctor in 2013 and was licensed to practice law in Florida in the same year. In 2015, David earned his Masters of Law in Taxation from Boston University. While working for the Florida Department of Revenue as a Senior Attorney, David focused on various sales and use tax issues. You can read his BIO HERE.

At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is Florida taxes, with a very heavy emphasis in Florida sales and use tax. We have defended Florida businesses against the Florida Department of Revenue since 1991 and have over 100 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.

Interested in learning more about Florida sales and use tax laws? You can find a listing of up and coming speaking engagements by our attorneys HERE!

AUTHORITY

Senate Bill 126 - Florida Economic Nexus and Marketplace Facilitator 

House Bill 159 - - Florida Economic Nexus and Marketplace Facilitator

South Dakota v. Wayfair, 585 U.S. _____ (June 21, 2018).

Section 212.05, F.S., Sales, storage, use tax.

Section 212.06, F.S., Sales, storage, use tax; collectible from dealers; "dealer" defined; dealers to collect from purchasers; legislative intent as to scope of tax.

ADDITIONAL RESOURCES

FLORIDA SALES TAX INFORMAL WRITTEN PROTEST, published November 17, 2018, by James Sutton, C.P.A., Esq.

SHIPPING: AN OVERLOOKED FLORIDA SALES TAX EXEMPTION, published September 12, 2019, by Jeanette Moffa, Esq.

FLORIDA - ECONOMIC NEXUS & MARKETPLACE FACILITATOR BILL IINTRODUCED, published February 20, 2019, by James Sutton, C.P.A., Esq.

POST-WAYFAIR - CAN YOU AFFORD TO WAIT TO REGISTER, published August 8, 2018, by James Sutton, C.P.A., Esq.

FLORIDA SALES TAX - VOLUNTARY DISCLOSURE PROGRAM, published April 9, 2018, by Jeanette Moffa, Esq.

FLORIDA USE TAX AUDIT LETTER?, published June 14, 2015, by James Sutton, CPA, Esq. and Jerry Donnini, Esq.

GO TO JAIL FOR NOT PAYING FLORIDA SALES TAX?, published November 3, 2013, by James Sutton, CPA, Esq.

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