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Proposed Legislation Would Require Remote Sellers and Marketplace Providers to Collect Florida Sales Tax: Third Time’s the Charm?

Published: January 8th, 2021

By: Mark E. Holcomb H. French Brown, IV

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Florida is one of only two states that have yet to implement the U.S. Supreme Court’s 2018 decision authorizing states to require remote sellers to collect sales tax from in-state customers.[1]  The Florida Legislature considered (but failed to pass) such legislation during its 2019 and 2020 sessions.  These bills (Senate Bill 50 and House Bill 15) have, again, been filed for consideration during the upcoming 2021 legislative session.  Given the State’s reported need to bridge a COVID-induced $3.2 billion two-year revenue shortfall,[2] and the prevailing political will to do so without raising “new taxes,” the time is ripe for Florida to modernize its tax system and impose sales tax collection and remittance responsibilities on both remote sellers and marketplace providers.  

Wayfair Extends the Reach of State Taxing Power

The Supreme Court’s Wayfair decision overturned fifty years’ of precedent[3] and held 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 for a state to validly require remote sellers to collect its sales tax.  

The Need to Modernize Florida Law

Florida law has expressly imposed sales tax on “mail order” sales since 1987,[4] but that statute was 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 contain the three elements of the South Dakota law approved in Wayfair and, consequently, has not been strictly enforced.

SB 50 and HB 15 Establish Wayfair Standards and Extend Tax Responsibilities to Marketplace Providers

SB 50 and HB 15 would transform Florida’s existing mail order sales statute to impose sales tax on “remote sales” and require tax collection by sellers lacking a physical presence in Florida.[5]  Under SB 50, small businesses would be excluded from these requirements by defining a “substantial number of remote sales” as making sales totaling in excess of $100,000 in the previous calendar year for delivery into Florida; HB 15 would add a separate threshold of making 200 or more retail sales in the previous calendar year for delivery into Florida.[6]  The bills would eliminate both the current exemption from local option sales surtaxes for most mail order sales[7] and the increased collection allowance afforded to mail order sellers.  These remote seller responsibilities would become effective July 1, 2021. 

In addition, the bills would extend these sales tax collection responsibilities to marketplace providers that facilitate and collect payment for sales made by remote sellers utilizing their platform.  A marketplace provider would be required to certify to its marketplace sellers that it will collect and remit Florida sales tax on retail sales made through the marketplace; conversely, such marketplace sellers would be prohibited from collecting sales tax on such sales.  The Department of Revenue would likewise be prohibited from collecting tax from both the marketplace provider and the marketplace seller on the same retail sale.

Marketplace providers would be subject to audit and assessment on sales made through their platforms, and the Department of Revenue would be prohibited from auditing marketplace sellers on these transactions, unless 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.  Regardless, a marketplace provider would be allowed to recover any tax assessment from the responsible marketplace seller, as provided by contract or as otherwise agreed between those parties.     

Certain types of online platforms would be excluded from the marketplace provider requirements, including persons solely providing “travel agency services” (e.g., online travel companies) and “delivery network companies” serving local merchants.  SB 50 would also exclude a “payment processor business” handling payment transactions (e.g., charge cards, credit cards or debit cards) for marketplace sales.  Certain large retailers are rumored to be seeking the addition of a “large seller exception” to the marketplace provider requirements, allowing such retailers to collect and remit tax directly on their sales made through a marketplace platform.  SB 50 would impose those marketplace provider responsibilities effective July 1, 2021, considering sales made during calendar year 2020 in determining whether the thresholds are met, while HB 15 would delay imposition of the marketplace provider responsibilities until October 1, 2021.

Copies of SB 50 and HB 15, along with bill tracking information throughout the legislative process, are available at the Florida Legislature’s website: http://www.leg.state.fl.us

Prospects for Passage of Wayfair Standards in Florida

The Florida Senate considered similar proposed legislation in 2019 (SB 1112), but the bill lacked a House companion and died in the Appropriations Committee.  In 2020, both the Senate (SB 126) and House (HB 159) took up similar bills, but the measures died in the Senate Appropriations Committee and House Ways and Means Committee, respectively. 

Given the substantial impacts of the COVID-19 pandemic on Florida’s current and near-term fiscal outlook, it seems likely that SB 50 and HB 15 will garner sufficient momentum to pass both chambers.  In the past, some elected officials were concerned that passage of Wayfair-implementing legislation would be (incorrectly) perceived as a “tax increase” or “new tax” when, in fact, such legislation would merely enhance and modernize collection of the use tax that is already due from Florida consumers.  The newly appointed Senate President, Wilton Simpson (R-Trilby), has made passage of SB 50 a priority, and it seems increasingly likely that, with the negative fiscal impacts caused by the COVID-19 pandemic and continued 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 60-day regular session beginning March 2, 2021.      

Conclusion

SB 50 and HB 15 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 of Wayfair-implementing legislation appear good, the 2021 legislative process is still unfolding.  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 any other state and local tax matters, please contact a member of our State and Local Tax Team.

About the Authors:

H. French Brown, IV focuses on state and local taxation, governmental relations and lobbying, and administrative law. Prior to joining Dean Mead, Mr. Brown was in private practice at another Tallahassee law firm. He began his legal career at the Florida Department of Revenue, where he quickly rose to the position of Deputy Director of Technical Assistance and Dispute Resolution. Mr. Brown also assists businesses with Florida tax planning and controversies. He may be reached at fbrown@deanmead.com.

Mark E. Holcomb has over 35 years of experience practicing in state and local taxation. He represents clients before the Florida Department of Revenue and local taxing authorities, and in litigation at the trial and appellate levels. Mr. Holcomb advises clients on a broad range of state and local taxes, including corporate income and franchise tax, sales and use tax, documentary stamp tax, communication services tax, insurance premium tax, ad valorem tax and motor fuels tax, in tax controversy work and in planning opportunities. He may be reached at mholcomb@deanmead.com.

[1] South Dakota v. Wayfair, Inc., 585 U.S. ___ (2018) [Dkt. No. 17-494].  Missouri is the other state.  Four states (Delaware, Montana, New Hampshire and Oregon) do not impose a sales tax.

[2] Florida economists recently forecasted a $1.9 billion revenue shortfall in fiscal year 2020-2021 and a $1.3 billion revenue shortfall in fiscal year 2021-2022.

[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] While similar in substance, these bills are not identical.  Pertinent differences are noted.

[6] Currently, it appears likely that Florida will only adopt the sales amount threshold, as most other states have likewise dropped a separate transaction threshold.

[7] Some may question whether the bills contain sufficient simplification measures to ease administrative burdens on remote sellers.