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The federal Marketplace Fairness Act of 2013 was introduced in the House of Representatives and the Senate on February 14, 2013.  If passed, the bill would authorize states that meet certain requirements to require remote sellers that do not meet a "small seller exception" to collect their state and local sales and use taxes.  Under the legislation, a state would be authorized to require a remote seller to collect sales and use taxes only if the remote seller has gross annual receipts in total remote sales in the United States of more than $1 million in the preceding calendar year.

 

Member states of the Streamlined Sales and Use Tax (SST) Agreement would be authorized to require all sellers that do not qualify for the small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to that member state pursuant to the provisions of the SST Agreement. The SST Agreement would have to include certain minimum simplification requirements. An SST member state could begin to exercise authority under the Act beginning 90 days after the state publishes notice of its intent to exercise such authority, but no earlier than the first day of the calendar quarter that is at least 90 days after the date of the enactment of the Act.

 

States that are not members of the SST Agreement would be authorized, notwithstanding any other provision of law, to require all sellers that do not qualify for the small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to the state if the state implements certain minimum simplification requirements. The authority would begin no earlier than the first day of the calendar quarter that is at least six months after the state enacts legislation to exercise the authority granted by the Act.

 

To enforce collection requirements on remote sellers that do not meet the small seller exception, states that are not members of the SST Agreement would have to implement the minimum simplification requirements listed below. For SST member states to have collection authority, the requirements would have to be included in the SST Agreement.

 

-       A single entity within the state responsible for all state and local sales and use tax administration, return processing, and audits for remote sales sourced to the state

-       A single audit of a remote seller for all state and local taxing jurisdictions within that state

-       A single sales and use tax return to be used by remote sellers to be filed with the single entity responsible for tax administration.

-       Each state would have to provide a uniform sales and use tax base among the state and the local taxing jurisdictions within the state.

-       Each state would have to source all interstate sales in compliance with the sourcing definition outlined below.

-       Each state would have to provide information indicating the taxability of products and services along with any product and service exemptions from sales and use tax in the state and a rates and boundary database. States would have to provide free software for remote sellers that calculates sales and use taxes due on each transaction at the time the transaction is completed, that files sales and use tax returns, and that is updated to reflect state and local rate changes. States would also have to provide certification procedures for persons to be approved as certified software providers (CSPs). Such CSPs would have to be capable of calculating and filing sales and use taxes in all the states qualified under the Act.

-       Each state would have to relieve remote sellers from liability to the state or locality for incorrect collection, remittance, or noncollection of sales and use taxes, including any penalties or interest, if the liability is the result of an error or omission made by a CSP.

-       Each state would have to relieve CSPs from liability to the state or locality for the incorrect collection, remittance, or noncollection of sales and use taxes, including any penalties or interest, if the liability is the result of misleading or inaccurate information provided by a remote seller.

-       Each state would have to relieve remote sellers and CSPs from liability to the state or locality for incorrect collection, remittance, or noncollection of sales and use taxes, including any penalties or interest, if the liability is the result of incorrect information or software provided by the state.

-       Each state would have to provide remote sellers and CSPs with 90 days’ notice of a rate change by the state or any locality in the state and update the taxability and exemption information and rate and boundary databases, and would have to relieve any remote seller or CSP from liability for collecting sales and use taxes at the immediately preceding effective rate during the 90-day notice period if the required notice is not provided.

 

For non-SST member states, the location to which a remote sale is sourced would be the location where the item sold is received by the purchaser, based on the location indicated by instructions for delivery. When no delivery location is specified, the remote sale is sourced to the customer's address that is either known to the seller or, if not known, obtained by the seller during the transaction, including the address of the customer's payment instrument if no other address is available. If an address is unknown and a billing address cannot be obtained, the remote sale is sourced to the address of the seller from which the remote sale was made. SST member states would be required to comply with the sourcing provisions of the SST Agreement.

 

On March 22, 2013, the U.S. Senate voted 75-to-24 in favor of the concept of the Marketplace Fairness Act. The actual Marketplace Fairness Act was introduced in both chambers in February, but last week Senator Enzi, the sponsor of the Senate bill, offered an amendment to the 2014 Budget Resolution that would include insertion of the language of Marketplace Fairness in the budget. It was a largely symbolic tactic since the Budget Resolution itself will not become law, but by approving the amendment, the Senate has shown that there is broad, bipartisan support for the notion of requiring remote sellers to collect sales tax.

 

On May 6, 2013, the U.S. Senate passed the Marketplace Fairness Act with a 69-27 vote.

 

UPDATE: On September 18, 2013, Rep. Bob Goodlatte, the chairman of the House Judiciary Committee released a set of seven principles that he believes any internet sales tax bill should meet.  The seven principles outlined by Goodlatte are tax relief, tech neutrality, no regulation without representation, simplicity, tax competition, states’ rights, and privacy rights.  For more details on the principles, click here to see the House Judiciary Committee’s press release.

 

We are continuing to track the activities of these bills.  We are also involved in planning efforts involving states and businesses regarding the potential implementation consequences of passage.  Watch for updates in the Sales Tax Compass as well as through our Twitter account and LinkedIn updates. 

 

The text of the bill passed by the Senate can be viewed here.

 

For an update on this news item, visit Senate Introduces Marketplace Fairness Act of 2015.

 

(H.R. 684 and S. 336, as introduced in Congress on February 14, 2013; S.743, as passed by the U.S. Senate on May 6, 2013)

(09/20/2013)

Oklahoma Governor Brad Henry has signed legislation enacting a use tax amnesty program. Under the legislation, amnesty initiatives are to be established by the Oklahoma Tax Commission for both out-of-state retailers and for Oklahoma consumers. Under the “Retailer Compliance Initiative,” the commission will not seek payment of uncollected use tax from out-of-state retailers that register to collect and remit use tax on sales made to Oklahoma purchasers before registering under the initiative if the retailer was not registered in Oklahoma in the 12 months preceding June 9, 2010. Registration in the program will prevent an assessment for uncollected use tax, penalties, and interest for sales made during the period the retailer was not registered in Oklahoma. Registration must occur before July 1, 2011. The tax relief is effective as long as the retailer continues registration and collects and remits use taxes for at least 36 months. Relief only applies to use taxes due from registrants in their capacity as a retailer, not as a purchaser. The relief is not available to any retailers that have received notice of an audit, and for which the audit is not finally resolved. Relief does not apply to use taxes that have already been paid or remitted to the state, to use tax that has been collected but not yet remitted, or in cases of retailer fraud or misrepresentation of a material fact. Registration in the amnesty program will not be used as a factor in determining nexus in regards to any other Oklahoma taxes at any time. Out-of-state retailers that voluntarily register in the program will not be charged a registration fee and will receive a discount for reporting and remitting use taxes in a timely manner. The Oklahoma Tax Commission is directed to establish a “Consumer Compliance Initiative” as well. Under this initiative, if a taxpayer voluntarily files delinquent returns and pays the outstanding use tax during the initiative, penalties, interest, and other collection fees due will be waived. Use taxes will not be assessed for any period more than one year prior to the date that the taxpayer registers to pay use taxes under the initiative. The relief is not available to any taxpayers that have received notice of an audit, and for which the audit is not finally resolved. Relief also does not apply to use taxes that have already been paid or remitted to the state. The commission will also develop an internet portal that taxpayers can use to remit use taxes. (H.B. 2359, Laws 2010, effective June 9, 2010)

(03/14/2011)

The governor of Oklahoma has signed HB 2359 effective June 9, 2010 which amends the definition of retailer to include remote retailers who are owned by a retailer maintaining a place of business in Oklahoma if the local retailers holds a substantial interest (greater than 10% ownership) and the local retailer sells the same or substantially similar line of products as the remote retailer using the same or substantially similar name. Other specific provisions apply that could establish nexus and therefore a collection responsibility on the remote seller. Additionally, the bill requires remote retailers that are not required to collect tax in Oklahoma to provide notice to customers that use tax applies to the purchases. Retailers are prohibited from advertising that sales tax does not apply to the purchases. The Oklahoma Tax Commission is working on a draft of an emergency rule that would dictate how certain internet and catalog retailers give notice of use tax requirement to customers in Oklahoma. If the retailer does not provide an invoice, a confirmation e-mail containing the notice would be considered sufficient. Online auction websites would also be affected by the proposed rule. The rule’s requirements would not apply to retailers with total Oklahoma gross sales of less than $100,000 in the prior year and the reasonable expectation of less than $100,000 in sales in the current year. The requirements outlined in the proposed rule would not take effect until an emergency or permanent administrative rule is passed. (HB 2359, Press Release, Oklahoma Tax Commission, June 30, 2010)

 

For an update on this news item, see Oklahoma Enacts Affiliate Nexus and Reporting Requirements Changes

(08/17/2010)

As of November 1, 2009, the Oklahoma Tax Commission will maintain a list of all persons who owe more than $25,000 in interest, penalties, fees, costs and taxes on their website. The 100 largest delinquent accounts are featured on a special page. If a taxpayer has entered into a pay plan with the Tax Commission, or is protected by a bankruptcy stay, their name will not appear on the website. Taxpayers will receive written notice that their name is being added to the list at least 90 days prior to being added to the public list. (Oklahoma S.B 318, Enacted June 1, 2009)

(03/11/2010)

Oklahoma’s rules for the voluntary compliance initiative, beginning September 15, 2008 and ending November 14, 2008, were recently approved and are effective as of August 8, 2008. The program allows for waivers of penalty, interest, and any other collection fees associated with certain taxes due and payable before January 1, 2008. The eligible taxes are mixed beverage, gasoline and diesel, gross production and petroleum excise tax, franchise, sales and use, income, withholding, and privilege taxes. Penalties on negligence, failure, or refusal to file, fraud, filing a report or return with insufficient information or the face of a tax warrant for failure to pay a delinquent tax may also be waived. To qualify a taxpayer must either voluntarily file delinquent returns, amended returns, or pay previously assessed liabilities. All of these options also require payment in full or through a payment plan agreement that must entered into between September 15, 2008 and November 14, 2008. If a payment plan is not paid in full by June 15, 2009, penalty equal to the amount of the original delinquent penalty will be added thereto. (Rules 710:1-9-1 through -10, Oklahoma Tax Commission, effective as noted)

(08/25/2008)

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