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A03347 Summary:

BILL NOA03347
 
SAME ASNo Same As
 
SPONSORCarroll (MS)
 
COSPNSRSeawright, Gottfried, Blake, Fahy
 
MLTSPNSRMosley
 
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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A03347 Text:



 
                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.
                                                                   LBD02064-01-9

        A. 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  whom

        A. 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 to

        A. 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.
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