Pre-filed Legislation Would Impose Florida Sales Tax Collection Responsibilities on Remote Sellers and Marketplace Providers

Florida is one of only two sales tax-imposing states that have not implemented the U.S. Supreme Court’s seminal 2018 decision[1] authorizing states to impose sales tax collection responsibilities on remote sellers lacking a physical presence in the state.  That dubious distinction would end under recently filed proposed legislation.  Senate Bill 126 by Sen. Joe Gruters (R), Vice Chair of the Senate Finance and Tax Committee, would prospectively revamp Florida law to impose sales tax[2] collection and remittance responsibilities both on remote sellers and on marketplace providers.  This article will review the key provisions of SB 126 and its prospects for passage.   

Wayfair Extends the Reach of State Taxing Power

The Supreme Court’s Wayfair decision fundamentally altered the state tax landscape by overturning fifty years’ of precedent[3] and holding that states could require remote sellers to collect sales tax from in-state purchasers, even if the remote seller lacked a physical presence in the state.  The Court approved a South Dakota law imposing sales tax collection responsibilities on remote sellers, noting that the law: (i) contained minimum sales thresholds to avoid imposing undue burdens on small sellers; (ii) only prospectively imposed sales tax collection responsibilities on remote sellers; and (iii) contained certain simplification provisions to ease administrative burdens imposed on remote sellers.  These three components are widely (although perhaps not universally) regarded as necessary elements for a state to validly impose sales tax collection responsibilities on remote sellers.  

The Need to Modernize Florida Law

Florida law has imposed sales tax on “mail order” sales since 1987,[4] but that statute is largely unconstitutional and unenforceable under former U.S. Supreme Court precedent.  Now that Wayfair has overruled that precedent, Florida’s existing mail order sales statute could in theory gain new life.  But the language of that statute does not conform to the three hallmarks of the South Dakota law approved in Wayfair and, consequently, has not been strictly enforced by the Department of Revenue.

SB 126 Contains Wayfair Standards and Extend Tax Responsibilities to Marketplace Providers

SB 126 would transform Florida’s mail order sales statute to impose sales tax collection responsibilities on remote sellers (subject to a small seller exception) effective July 1, 2020.  In addition, the bill would streamline administration of Florida’s sales tax laws by extending sales tax collection responsibilities to marketplace providers (e.g., Amazon, eBay, etsy, etc.) on behalf of marketplace sellers (also subject to a small seller exception), effective October 1, 2020. The bill would eliminate the current exemption from local option sales surtaxes that most mail order sales enjoy under current law, as well as the enhanced collection allowance that mail order sellers are allowed to keep under current law.

Other highlights of SB 126 include:

• Changes the mail order sales statute to impose tax on “remote sales” (§4);
• Defines a “remote sale” to include retail sales of tangible personal property ordered by telephone, the Internet or other means of communication from a seller located outside of Florida for delivery to a person in Florida (id.);
• Establishes minimum sales thresholds for remote sellers, e., 200 or more retail sales of tangible personal property in the previous calendar year for delivery into Florida or conducting retail sales exceeding $100,000 in the previous calendar year for delivery into Florida (id.);
• Defines “marketplace” to mean any physical place or electronic medium through which tangible personal property is offered for sale (§5);
• Defines “marketplace provider” to mean a person facilitating retail sales by listing or advertising sales of tangible personal property by a marketplace seller and who collects and remits payment from the customer to the marketplace seller (id.);
• Excludes from marketplace providers persons providing “travel agency services” (g., online travel companies) and certain “delivery network” companies (e.g., Grubhub, DoorDash, Uber Eats, etc.)(id.);
• Requires a marketplace provider to certify to its marketplace sellers that it will collect and remit Florida sales tax on retail sales made through the marketplace (id.);
• Prohibits marketplace sellers from collecting and remitting sales tax on taxable retail sales made through the marketplace, and requires the marketplace seller to exclude such sales from its returns (id.);
• Subjects marketplace providers to audit for sales made through the marketplace (id.);
• Authorizes the assessment of tax against the marketplace seller or customer on sales made through the marketplace only where the marketplace provider shows that it made reasonable efforts to obtain accurate information on marketplace sales and that any failure to collect and remit the correct tax was due to the marketplace seller providing inaccurate or incomplete information (id.);
• Authorizes a marketplace provider to push any tax assessment down to the marketplace seller by contract or as otherwise agreed (id.); and
• Prohibits the Department of Revenue from collecting tax from both the marketplace provider and the marketplace seller on the same retail sale (id.).

A copy of SB 126, along with bill tracking information throughout the legislative process, is available on the Florida Senate’s website, http://www.flsenate.gov/Session/Bill/2020/126.

Prospects for Passage of Wayfair Standards in Florida

The Florida Senate considered similar proposed legislation during the 2019 Regular Session,[5] but the bill lacked a House companion and died in the Appropriations Committee.  Knowledgeable sources report that some elected officials were concerned that passage of Wayfair-implementing legislation would be perceived as an unpalatable “tax increase.”   It seems likely that, with a more focused understanding of Florida’s longstanding use tax and increased political pressure from in-state businesses to “level the playing field,” the Legislature will feel compelled to modernize Florida law and adopt Wayfair standards during the 2020 Regular Session.  Although SB 126 does not currently have a House companion bill, we expect the House to take up similar proposed legislation during the 2020 Regular Session that begins on January 14, 2020.      

Conclusion

SB 126 would both modernize and streamline administration of Florida’s sales tax laws, keeping the state aligned with the overwhelming majority of its sister states.  While the prospects for passage appear good, the 2020 legislative process is still in its early stages and the bill has yet to be assigned to committee for hearing.  Interested parties should make their views known early in the process to ensure the most effective outcome.  If we can assist you with this or other state and local tax matters, please contact a member of our State and Local Tax Team.

[1] South Dakota v. Wayfair, Inc., Dkt. No. 17-494 (6/21/18).  Missouri is the other state.

[2] More accurately, the bill would require remote sellers and marketplace providers to collect the complementary use tax that is already due from Florida consumers on out-of-state purchases.  But the Supreme Court loosely referred to the use tax as a “sales” tax in Wayfair, and we will follow that construct here.     

[3] National Bellas Hess, Inc. v. Illinois Dept. of Revenue, 386 U.S. 753 (1967) and Quill Corp. v. North Dakota, 504 U.S. 298 (1992).

[4] Section 212.0596, F.S.

[5] SB 1112 – co-introduced by Sens. Gruters, Gainer (R), and Baxley (R).