HOUSE BILL No. 4541

 

 

May 2, 2019, Introduced by Reps. Tate, Webber, Afendoulis and Yancey and referred to the Committee on Tax Policy.

 

     A bill to amend 1937 PA 94, entitled

 

"Use tax act,"

 

(MCL 205.91 to 205.111) by adding section 5c.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5c. (1) Notwithstanding anything to the contrary in this

 

act, a marketplace facilitator that sells or facilitates the sale

 

of tangible personal property or services subject to the tax under

 

this act for delivery into this state is presumed to have nexus in

 

this state, is subject to the tax under this act, shall collect and

 

remit applicable use tax, and shall follow all applicable

 

procedures and requirements of this act, if the marketplace

 

facilitator makes or facilitates sales of tangible personal

 

property or taxable services, on its own behalf or on behalf of 1

 

or more marketplace sellers, or both, for delivery into this state

 


exceeding $100,000.00 or in 200 or more separate transactions in

 

the previous calendar year or the current calendar year.

 

     (2) A marketplace facilitator that is presumed to have nexus

 

with this state under subsection (1) is required to collect and

 

remit the tax due under this act on all taxable sales made by the

 

marketplace facilitator or facilitated for marketplace sellers to a

 

purchaser in this state regardless of whether the marketplace

 

seller for whom sales are facilitated has registered or is required

 

to register under section 5 or would have been required to collect

 

or remit use tax had the sale not been facilitated by the

 

marketplace facilitator. Nothing in this section shall be construed

 

to interfere with the ability of a marketplace facilitator and a

 

marketplace seller to enter into agreements with each other

 

regarding the fulfillment of the requirements of this act.

 

     (3) The department may grant a waiver from the requirements of

 

this section if either of the following requirements is met:

 

     (a) A marketplace facilitator demonstrates, to the

 

satisfaction of the department, that substantially all of its

 

marketplace sellers are registered with the department under

 

section 5 or have a current and valid sales tax license under

 

section 3 of the general sales tax act, 1933 PA 167, MCL 205.53.

 

     (b) A marketplace seller has sufficient nexus with this state

 

to require registration under section 5 or licensure under section

 

3 of the general sales tax act, 1933 PA 167, MCL 205.53, and the

 

department determines that collection of use tax by the marketplace

 

seller with regard to transactions facilitated by the marketplace

 

facilitator would result in the appropriate and efficient


collection of tax under this act.

 

     (4) If the department grants a waiver under subsection (3),

 

the tax levied under this act on sales that are facilitated by a

 

marketplace facilitator for a marketplace seller must be collected

 

from the marketplace seller. The department shall promulgate rules

 

that establish the criteria for obtaining a waiver under subsection

 

(3), the process and procedure for a marketplace facilitator or a

 

marketplace seller to apply for a waiver, and the process for

 

notifying an affected marketplace facilitator and marketplace

 

seller of a waiver obtained under subsection (3).

 

     (5) A marketplace facilitator shall report the sales it

 

facilitates separately from the sales made directly by the

 

marketplace facilitator, or affiliates of the marketplace

 

facilitator, to purchasers in this state by filing a separate

 

marketplace facilitator return on a form prescribed by the

 

department.

 

     (6) A class action shall not be brought against a marketplace

 

facilitator in any court of this state on behalf of purchasers

 

arising from or in any way related to an overpayment of use tax

 

collected on sales facilitated by the marketplace facilitator,

 

regardless of whether that claim is characterized as a tax refund

 

claim. Nothing in this subsection affects a purchaser's right to

 

seek a refund as provided under this act.

 

     (7) Nothing in this section affects the obligation of a

 

purchaser to remit tax under this act, for a taxable transaction on

 

which a marketplace facilitator or seller does not collect and

 

remit tax under this act or sales tax under the general sales tax


act, 1933 PA 167, 205.51 to 205.78.

 

     (8) Except as otherwise provided in this subsection, if a

 

marketplace facilitator is presumed to have nexus with this state

 

under subsection (1), the department shall solely audit the

 

marketplace facilitator for sales made by marketplace sellers that

 

were facilitated by the marketplace facilitator. The department

 

shall not audit a marketplace seller for sales facilitated by a

 

marketplace facilitator unless a waiver is granted under subsection

 

(3) and the tax levied under this act must be collected from the

 

marketplace seller under subsection (4) or to the extent that the

 

marketplace facilitator seeks relief under subsection (9).

 

     (9) A marketplace facilitator is relieved of liability under

 

this section for failure to collect and remit the correct amount of

 

tax to the extent that the failure was due to incorrect or

 

insufficient information given to the marketplace facilitator by

 

the marketplace seller. The relief under this subsection does not

 

apply if the marketplace seller is an affiliate of the marketplace

 

facilitator.

 

     (10) A marketplace facilitator is relieved of liability under

 

this section if the marketplace facilitator demonstrates, to the

 

satisfaction of the department, that the tax levied under this act

 

on a sale facilitated by the marketplace facilitator was paid to

 

the department by the marketplace seller.

 

     (11) This section applies regardless of whether the

 

marketplace facilitator has a physical presence in this state.

 

     (12) As used in this section:

 

     (a) "Affiliate" means an affiliated person as that term is


defined in section 5a.

 

     (b) "Marketplace facilitator" means a person that meets the

 

requirements of subparagraph (i), but does not include a person

 

described in subparagraph (ii) or (iii):

 

     (i) A person is a marketplace facilitator if the person does

 

all of the following:

 

     (A) Contracts with a marketplace seller to facilitate for

 

consideration, regardless of whether deducted as fees from the

 

transaction, the sale of the marketplace seller's products through

 

a physical or electronic marketplace operated by the person.

 

     (B) Engages directly or indirectly, through 1 or more

 

affiliates, in transmitting or otherwise communicating the offer

 

and acceptance between a purchaser and the marketplace seller.

 

     (C) Either directly or indirectly through agreements or

 

arrangements with third parties collects the payment from a

 

purchaser and transmits the payment to the marketplace seller.

 

     (ii) Marketplace facilitator does not include a person who

 

operates a platform or forum that provides internet advertising

 

services, including listing products for sale, if the person does

 

not also engage directly or indirectly, through 1 or more

 

affiliates, in the activities described in subparagraph (i).

 

     (iii) A person is not a marketplace facilitator with respect

 

to the sale of or charges for rooms, lodgings, or accommodations

 

described in section 3a if the rooms, lodgings, or accommodations

 

are provided by a hotel keeper, motel operator, or other person

 

that is registered under section 5 or licensed under section 3 of

 

the general sales tax act, 1933 PA 167, MCL 205.53, and the hotel


keeper, motel operator, or other person provides the rooms,

 

lodgings, or accommodations for occupancy under a brand belonging

 

to the hotel keeper, motel operator, or other person.

 

     (c) "Marketplace seller" means a person that makes retail

 

sales through a physical or electronic marketplace operated by a

 

marketplace facilitator.

 

     Enacting section 1. As provided in section 5 of 1846 RS 1, MCL

 

8.5, this amendatory act is severable.

 

     Enacting section 2. This amendatory act takes effect 90 days

 

after the date it is enacted into law. An obligation to collect use

 

tax under this amendatory act does not apply retroactively.