|SAME AS||No Same As|
|COSPNSR||Seawright, Gottfried, Blake, Fahy|
|Amd §§1101, 1131, 1132, 1133, 1136 & 1142, Tax L|
|Requires marketplace providers to collect sales tax on the sales of tangible personal property.|
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STATE OF NEW YORK ________________________________________________________________________ 3347 2019-2020 Regular Sessions IN ASSEMBLY January 29, 2019 ___________ Introduced by M. of A. CARROLL, SEAWRIGHT, GOTTFRIED, BLAKE, FAHY -- Multi-Sponsored by -- M. of A. MOSLEY -- read once and referred to the Committee on Ways and Means AN ACT to amend the tax law, in relation to requiring marketplace providers to collect sales tax The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 1101 of the tax law is amended by adding a new 2 subdivision (e) to read as follows: 3 (e) When used in this article for the purposes of the taxes imposed 4 under subdivision (a) of section eleven hundred five of this article and 5 by section eleven hundred ten of this article, the following terms shall 6 mean: 7 (1) Marketplace provider. A person who, pursuant to an agreement with 8 a marketplace seller, facilitates sales of tangible personal property by 9 such marketplace seller or sellers. A person "facilitates a sale of 10 tangible personal property" for purposes of this paragraph when the 11 person meets both of the following conditions: (i) such person provides 12 the forum in which, or by means of which, the sale takes place or the 13 offer of sale is accepted, including a shop, store, or booth, an inter- 14 net website, catalog, or similar forum; and (ii) such person or an 15 affiliate of such person collects the receipts paid by a customer to a 16 marketplace seller for a sale of tangible personal property, or 17 contracts with a third party to collect such receipts. For purposes of 18 this paragraph, two persons are affiliated if one person has an owner- 19 ship interest of more than five percent, whether direct or indirect, in 20 the other, or where an ownership interest of more than five percent, 21 whether direct or indirect, is held in each of such persons by another 22 person or by a group of other persons that are affiliated persons with 23 respect to each other. Notwithstanding anything in this paragraph, a 24 person who facilitates sales exclusively by means of the internet is not EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02064-01-9A. 3347 2 1 a marketplace provider for a sales tax quarter when such person can show 2 that it has facilitated less than one hundred million dollars of sales 3 annually for every calendar year after two thousand fifteen. 4 (2) Marketplace seller. Any person, whether or not such person is 5 required to obtain a certificate of authority under section eleven 6 hundred thirty-four of this article, who has an agreement with a market- 7 place provider under which the marketplace provider will facilitate 8 sales of tangible personal property by such person within the meaning of 9 paragraph one of this subdivision. 10 § 2. Subdivision 1 of section 1131 of the tax law, as amended by 11 section 1 of part X of chapter 59 of the laws of 2018, is amended to 12 read as follows: 13 (1) "Persons required to collect tax" or "person required to collect 14 any tax imposed by this article" shall include: every vendor of tangible 15 personal property or services; every recipient of amusement charges; 16 [ and] every operator of a hotel, and every marketplace provider with 17 respect to sales of tangible personal property it facilitates as 18 described in paragraph one of subdivision (e) of section eleven hundred 19 one of this article. Said terms shall also include any officer, director 20 or employee of a corporation or of a dissolved corporation, any employee 21 of a partnership, any employee or manager of a limited liability compa- 22 ny, or any employee of an individual proprietorship who as such officer, 23 director, employee or manager is under a duty to act for such corpo- 24 ration, partnership, limited liability company or individual proprietor- 25 ship in complying with any requirement of this article, or has so acted; 26 and any member of a partnership or limited liability company. Provided, 27 however, that any person who is a vendor solely by reason of clause (D) 28 or (E) of subparagraph (i) of paragraph (8) of subdivision (b) of 29 section eleven hundred one of this article shall not be a "person 30 required to collect any tax imposed by this article" until twenty days 31 after the date by which such person is required to file a certificate of 32 registration pursuant to section eleven hundred thirty-four of this 33 part. 34 § 3. Section 1132 of the tax law is amended by adding a new subdivi- 35 sion (l) to read as follows: 36 (l) (1) A marketplace provider, with respect to a sale of tangible 37 personal property it facilitates: (i) shall have all the obligations and 38 rights of a vendor under this article and article twenty-nine of this 39 chapter and under any regulations adopted pursuant thereto, including, 40 but not limited to, the duty to obtain a certificate of authority, to 41 collect tax, file returns, remit tax, and the right to accept a certif- 42 icate or other documentation from a customer substantiating an exemption 43 or exclusion from tax, the right to receive the refund authorized by 44 subdivision (e) of this section and the credit allowed by subdivision 45 (f) of section eleven hundred thirty-seven of this part subject to the 46 provisions of such subdivision; and (ii) shall keep such records and 47 information and cooperate with the commissioner to ensure the proper 48 collection and remittance of tax imposed collected or required to be 49 collected under this article and article twenty-nine of this chapter. 50 (2) A marketplace seller who is a vendor is relieved from the duty to 51 collect tax in regard to a particular sale of tangible personal property 52 subject to tax under subdivision (a) of section eleven hundred five of 53 this article and shall not include the receipts from such sale in its 54 taxable receipts for purposes of section eleven hundred thirty-six of 55 this part if, in regard to such sale: (i) the marketplace seller can 56 show that such sale was facilitated by a marketplace provider from whomA. 3347 3 1 such seller has received in good faith a properly completed certificate 2 of collection in a form prescribed by the commissioner, certifying that 3 the marketplace provider is registered to collect sales tax and will 4 collect sales tax on all taxable sales of tangible personal property by 5 the marketplace seller facilitated by the marketplace provider, and with 6 such other information as the commissioner may prescribe; and (ii) any 7 failure of the marketplace provider to collect the proper amount of tax 8 in regard to such sale was not the result of such marketplace seller 9 providing the marketplace provider with incorrect information. This 10 provision shall be administered in a manner consistent with subparagraph 11 (i) of paragraph one of subdivision (c) of this section as if a certif- 12 icate of collection were a resale or exemption certificate for purposes 13 of such subparagraph, including with regard to the completeness of such 14 certificate of collection and the timing of its acceptance by the 15 marketplace seller. Provided that, with regard to any sales of tangible 16 personal property by a marketplace seller that are facilitated by a 17 marketplace provider who is affiliated with such marketplace seller 18 within the meaning of paragraph one of subdivision (e) of section eleven 19 hundred one of this article, the marketplace seller shall be deemed 20 liable as a person under a duty to act for such marketplace provider for 21 purposes of subdivision one of section eleven hundred thirty-one of this 22 part. 23 (3) The commissioner may, in his or her discretion: (i) develop a 24 standard provision, or approve a provision developed by a marketplace 25 provider, in which the marketplace provider obligates itself to collect 26 the tax on behalf of all the marketplace sellers for whom the market- 27 place provider facilitates sales of tangible personal property, with 28 respect to all sales that it facilitates for such sellers where delivery 29 occurs in the state; and (ii) provide by regulation or otherwise that 30 the inclusion of such provision in the publicly-available agreement 31 between the marketplace provider and marketplace seller will have the 32 same effect as a marketplace seller's acceptance of a certificate of 33 collection from such marketplace provider under paragraph two of this 34 subdivision. 35 § 4. Section 1133 of the tax law is amended by adding a new subdivi- 36 sion (f) to read as follows: 37 (f) A marketplace provider is relieved of liability under this section 38 for failure to collect the correct amount of tax to the extent that the 39 marketplace provider can show that the error was due to incorrect infor- 40 mation given to the marketplace provider by the marketplace seller. 41 Provided, however, this subdivision shall not apply if the marketplace 42 seller and marketplace provider are affiliated within the meaning of 43 paragraph one of subdivision (e) of section eleven hundred one of this 44 article. 45 § 5. Paragraph 4 of subdivision (a) of section 1136 of the tax law, as 46 amended by section 46 of part K of chapter 61 of the laws of 2011, is 47 amended to read as follows: 48 (4) The return of a vendor of tangible personal property or services 49 shall show such vendor's receipts from sales and the number of gallons 50 of any motor fuel or diesel motor fuel sold and also the aggregate value 51 of tangible personal property and services and number of gallons of such 52 fuels sold by the vendor, the use of which is subject to tax under this 53 article, and the amount of tax payable thereon pursuant to the 54 provisions of section eleven hundred thirty-seven of this part. The 55 return of a recipient of amusement charges shall show all such charges 56 and the amount of tax thereon, and the return of an operator required toA. 3347 4 1 collect tax on rents shall show all rents received or charged and the 2 amount of tax thereon. The return of a marketplace seller shall exclude 3 the receipts from a sale of tangible personal property facilitated by a 4 marketplace provider if, in regard to such sale: (A) the marketplace 5 seller has timely received in good faith a properly completed certif- 6 icate of collection from the marketplace provider or the marketplace 7 provider has included a provision approved by the commissioner in the 8 publicly-available agreement between the marketplace provider and the 9 marketplace seller as described in subdivision (1) of section eleven 10 hundred thirty-two of this part, and (B) the information provided by the 11 marketplace seller to the marketplace provider about such tangible 12 personal property is accurate. 13 § 6. Section 1142 of the tax law is amended by adding a new subdivi- 14 sion 15 to read as follows: 15 15. To publish a list on the department's website of marketplace 16 providers whose certificate of authority has been revoked and, if neces- 17 sary to protect sales tax revenue, provide by regulation or otherwise 18 that a marketplace seller who is a vendor will be relieved of the duty 19 to collect tax for sales of tangible personal property facilitated by a 20 marketplace provider only if, in addition to the conditions prescribed 21 by paragraph two of subdivision (l) of section eleven hundred thirty-two 22 of this part being met, such marketplace provider is not on such list at 23 the commencement of the calendar year in which the sale was made. 24 § 7. This act shall take effect September 1, 2019, and shall apply to 25 sales made on or after such date.