The food and grocery delivery service industry in Florida should be holding their collective breath right now because they just might be handed a huge victory in the latest sales tax legislation. Florida Senate Bill 126, which was introduced to the Senate on January 14, 2020, provides relief from a rather troubling problem that has been vexing the industry for several years. Specifically, is the delivery service the retailer or is the restaurant/grocery store? In other words, who is responsible for collecting and remitting the sales tax and on what price? There are literally no industry norms on how to handle the transaction, so the sales tax implications can vary wildly from one company to the next. The industry has been reeling from audits for several years with astronomical proposed assessments and considerable expenditures fighting the Florida Department of Revenue. All of this may be about to change if this bill passes.
Let’s back up just a little bit to explain. Florida is one of the last states not to pass economic nexus and marketplace facilitator statutes aimed at both taxing remote sellers for selling into the state and to strap marketplaces such as Amazon and Ebay with the collection burden for sellers that sell through the massive online platforms. Senate Bill 126 (and the corresponding House Bill 159) aim to bring Florida in line with the rest of the states by enacting economic nexus and marketplace facilitator laws.
The interesting thing about this bill is that as part of the definitions for a “Marketplace Provider,” the Senate bill specifically excludes “Delivery Network Companies” and “Delivery Network Couriers.” This brings to mind companies like Uber Eats and Shipt. If you are interested in this topic, then the definition in the bill will be important to you as follows:
“Delivery network company” means a person who maintains a website or mobile application used to facilitate delivery services, the sale of local products, or both.
“Delivery network courier” means an individual who provides delivery services through a delivery network company website or mobile application using a personal means of transportation, such as a motor vehicle as defined in s. 320.01(1), bicycle, scooter, or other similar means of transportation; using public transportation; or by walking
The bill goes on to provide:
“Delivery services” means the pickup and delivery by a delivery network courier of one or more local products from a local merchant to a customer, which may include the selection, collection, and purchase of the local product in connection with the delivery. The term does not include any delivery requiring more than 75 miles of travel from the local merchant to the customer.
The bill’s language excluding the delivery service from being a marketplace provider allows for an exception that would require the delivery service to collect sales tax, but it appears to be elective in the following language:
The term [Marketplace Provider] does not include a person who is a delivery network company unless the delivery network company is a registered dealer for purposes of this chapter and the delivery network company notifies all local merchants that sell through the delivery network company’s website or mobile application that the delivery network company is subject to the requirements of a marketplace provider under this section.
Taken as a whole, this language implies a strong legislative intent that food and grocery delivery companies (that are not related to the restaurant/grocery store) will not be responsible for remitting sales tax and filing sales tax returns even if the delivery service has an app or mobile website that facilitates the sale and collects the tax. Considering that the language even considers that the delivery service provider may already be registered for sales tax in Florida, the implication is that the legislation would apply to instate delivery companies. It is possible the Florida Department of Revenue could take the position that the language only deals with whether the delivery service is a marketplace provider and not whether the delivery service is otherwise a retailer under other parts of the law. If this language is in the enacted statute as written, then I would expect a flurry of activity to clarify this issue with the Department. Alternatively, the legislature could help the industry by adding clarifying language to the statute specifically that these delivery services are not “retailers” under Florida’s chapter 212 (sales tax).
The remote seller industry around the country is anxiously watching these two bills for the possibility of economic nexus and marketplace facilitator reasons. The food/grocery delivery industry should be paying attention for the reasons mentioned herein. It is worth noting that the House version of the bill is identical in terms of the carving out for delivery services. Stay tuned as the bills move through the legislative session.
About the author: James Sutton is a Florida licensed CPA and attorney as well as a partner in Moffa, Sutton, & Donnini, PA. Mr. Sutton is charge of the Tampa office of the firm and practices almost exclusively in the area of Florida Sales & Use Tax Controversy. Mr. Sutton handles audits, protest, litigation, criminal cases, revocations, collections, and consulting engagements all in the area of sales tax. Mr. Sutton is an active member in the FICPA, AICPA, AAA-CPA, and FIADA. Mr. Sutton is also the State and Local Tax Chairman for the AAA-CPA and president of the Florida AA-CPA. If you are interested in learning more about Florida sales tax from Mr. Sutton, you can find his speaking engagements around the state HERE. Otherwise, you can learn more about Mr. Sutton in his firm bio HERE.
About the firm: At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is State and Local Tax, with a very heavy emphasis in sales and use tax. We have been defending Florida businesses against the state tax departments since 1991 and have over 100 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners throughout the entire state of Florida and around the country. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.
AUTHORITY
Senate Bill 126 - Florida Economic Nexus and Marketplace Facilitator
House Bill 159 - - Florida Economic Nexus and Marketplace Facilitator
ADDITIONAL RESOURCES
ANALYSIS OF FLORIDA ECONOMIC NEXUS BILLS, published December 20, 2019, by David Brennan, Esq.
FLORIDA SALES TAX – VOLUNTARY DISCLOSURE PROGRAM, published April 09, 2018, by Jeanette Moffa, Esq.
WHAT SERVICES AE SUBJECT TO SALES TAX IN FLORIDA, published May 1, 2012, by James Sutton, CPA, Esq.
FL COUNTER TOP COMPANIES: SALES TAX PROBLEMS, published October 13, 2013, by James Sutton, CPA, Esq.
PROTEST A FL SALES AND USE TAX AUDIT, published August 8, 2019, by Matthew Parker, Esq.