Bill Text: MI HB4540 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Sales tax; other; nexus of marketplace facilitators; clarify. Amends 1933 PA 167 (MCL 205.51 - 205.78) by adding sec. 2d.
Spectrum: Bipartisan Bill
Status: (Passed) 2019-12-19 - Assigned Pa 143'19 With Immediate Effect [HB4540 Detail]
Download: Michigan-2019-HB4540-Introduced.html
HOUSE BILL No. 4540
May 2, 2019, Introduced by Reps. Afendoulis, Webber, Tate and Yancey and referred to the Committee on Tax Policy.
A bill to amend 1933 PA 167, entitled
"General sales tax act,"
(MCL 205.51 to 205.78) by adding section 2d.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2d. (1) Notwithstanding anything to the contrary in this
act, a marketplace facilitator that sells or facilitates the sale
of tangible personal property or services subject to the tax under
this act for delivery into this state is presumed to be engaged in
the business of making sales at retail of tangible personal
property or taxable services in this state, is subject to the tax
under this act, shall include the gross proceeds from such sales in
the gross proceeds of its business for purposes of calculating the
tax due under this act subject to subsection (5), shall collect and
remit applicable sales tax, and shall follow all applicable
procedures and requirements of this act, if the marketplace
facilitator makes or facilitates sales of tangible personal
property or taxable services, on its own behalf or on behalf of 1
or more marketplace sellers, or both, for delivery into this state
exceeding $100,000.00 or in 200 or more separate transactions in
the previous calendar year or the current calendar year.
(2) A marketplace facilitator that is presumed to be engaged
in the business of making sales at retail of tangible personal
property or taxable services in this state under subsection (1) is
required to collect and remit the tax due under this act on all
taxable sales made by the marketplace facilitator or facilitated
for marketplace sellers to a purchaser in this state regardless of
whether the marketplace seller for whom sales are facilitated has
or is required to have a license under section 3 or would have been
required to collect or remit sales tax had the sale not been
facilitated by the marketplace facilitator. Nothing in this section
shall be construed to interfere with the ability of a marketplace
facilitator and a marketplace seller to enter into agreements with
each other regarding the fulfillment of the requirements of this
act.
(3) The department may grant a waiver from the requirements of
this section if either of the following requirements is met:
(a) A marketplace facilitator demonstrates, to the
satisfaction of the department, that substantially all of its
marketplace sellers have a current and valid license under section
3.
(b) A marketplace seller has sufficient nexus with this state
to require licensure under section 3 and the department determines
that collection of sales tax by the marketplace seller with regard
to transactions facilitated by the marketplace facilitator would
result in the appropriate and efficient collection of tax under
this act.
(4) If the department grants a waiver under subsection (3),
the tax levied under this act on sales that are facilitated by a
marketplace facilitator for a marketplace seller must be collected
from the marketplace seller and the marketplace seller must include
the gross proceeds from such sales in the gross proceeds of its
business for purposes of calculating the tax due under this act.
The department shall promulgate rules that establish the criteria
for obtaining a waiver under subsection (3), the process and
procedure for a marketplace facilitator or a marketplace seller to
apply for a waiver, and the process for notifying an affected
marketplace facilitator and marketplace seller of a waiver obtained
under subsection (3).
(5) A marketplace facilitator shall report the sales it
facilitates separately from the sales made directly by the
marketplace facilitator, or affiliates of the marketplace
facilitator, to purchasers in this state by filing a separate
marketplace facilitator return on a form prescribed by the
department.
(6) A class action shall not be brought against a marketplace
facilitator in any court of this state on behalf of purchasers
arising from or in any way related to an overpayment of sales tax
collected on sales facilitated by the marketplace facilitator,
regardless of whether that claim is characterized as a tax refund
claim. Nothing in this subsection affects a purchaser's right to
seek a refund as provided under section 12.
(7) Nothing in this section affects the obligation of a
purchaser to remit use tax under the use tax act, 1937 PA 94, MCL
205.91 to 205.111, for a taxable transaction on which a marketplace
facilitator or seller does not collect and remit sales tax.
(8) Except as otherwise provided in this subsection, if a
marketplace facilitator is presumed to be engaged in the business
of making sales at retail of tangible personal property or taxable
services in this state under subsection (1), the department shall
solely audit the marketplace facilitator for sales made by
marketplace sellers that were facilitated by the marketplace
facilitator. The department shall not audit a marketplace seller
for sales facilitated by a marketplace facilitator unless a waiver
is granted under subsection (3) and the tax levied under this act
must be collected from the marketplace seller under subsection (4)
or to the extent that the marketplace facilitator seeks relief
under subsection (9).
(9) A marketplace facilitator is relieved of liability under
this section for failure to collect and remit the correct amount of
tax to the extent that the failure was due to incorrect or
insufficient information given to the marketplace facilitator by
the marketplace seller. The relief under this subsection does not
apply if the marketplace seller is an affiliate of the marketplace
facilitator.
(10) A marketplace facilitator is relieved of liability under
this section if the marketplace facilitator demonstrates, to the
satisfaction of the department, that the tax levied under this act
on a sale facilitated by the marketplace facilitator was paid to
the department by the marketplace seller.
(11) This section applies regardless of whether the
marketplace facilitator has a physical presence in this state.
(12) As used in this section:
(a) "Affiliate" means an affiliated person as that term is
defined in section 2b.
(b) "Marketplace facilitator" means a person that meets the
requirements of subparagraph (i), but does not include a person
described in subparagraph (ii) or (iii):
(i) A person is a marketplace facilitator if the person does
all of the following:
(A) Contracts with a marketplace seller to facilitate for
consideration, regardless of whether deducted as fees from the
transaction, the sale of the marketplace seller's products through
a physical or electronic marketplace operated by the person.
(B) Engages directly or indirectly, through 1 or more
affiliates, in transmitting or otherwise communicating the offer
and acceptance between a purchaser and the marketplace seller.
(C) Either directly or indirectly through agreements or
arrangements with third parties collects the payment from a
purchaser and transmits the payment to the marketplace seller.
(ii) Marketplace facilitator does not include a person who
operates a platform or forum that provides internet advertising
services, including listing products for sale, if the person does
not also engage directly or indirectly, through 1 or more
affiliates, in the activities described in subparagraph (i).
(iii) A person is not a marketplace facilitator with respect
to the sale of or charges for rooms, lodgings, or accommodations
described in section 3a of the use tax act, 1937 PA 94, MCL
205.93a, if the rooms, lodgings, or accommodations are provided by
a hotel keeper, motel operator, or other person that is registered
under section 5 of the use tax act, 1937 PA 94, MCL 205.95, or
licensed under section 3 and the hotel keeper, motel operator, or
other person provides the rooms, lodgings, or accommodations for
occupancy under a brand belonging to the hotel keeper, motel
operator, or other person.
(c) "Marketplace seller" means a person that makes retail
sales through a physical or electronic marketplace operated by a
marketplace facilitator.
Enacting section 1. As provided in section 5 of 1846 RS 1, MCL
8.5, this amendatory act is severable.
Enacting section 2. This amendatory act takes effect 90 days
after the date it is enacted into law. An obligation to collect
sales tax under this amendatory act does not apply retroactively.
