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
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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
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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
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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.