At 11:00 PM on April 19, 2021, Florida Governor Desantis announced that he signed into law E-Fairness Legislation, with one hour to spare before the bill would have become law without his signature (or he could have vetoed the bill). With provisions to impose sales tax “economic nexus” on remote sellers (out of state businesses that sell into Florida), this makes Florida the 2nd to last state in the county to pass economic nexus legislation. Florida’s new economic nexus law is prediction to bring in hundreds of millions of dollars of much needed tax revenue after the covid pandemic. The new law also contained Marketplace Facilitator provisions (aka Marketplace Provider), which requires any business that provides a market for other companies to sell their products, for example Amazon or EBay, to be considered the retailer and be responsible for collecting and remitting sales tax on sales made through the marketplace. With a July 1, 2021 implementation date, you (or your clients) need to get up to speed on the law very quickly. Below is a brief summary of the legislation. You can download a fully copy of the e-Fairness Legislation at the end of this article.
- Amends the Mail Order Nexus statute 212.0596 (implemented in 1987) to say remote sellers that have enough economic activity in the state will be deemed Florida dealers required to collect and remit Florida sales tax on goods (not services) delivered to a customer in Florida.
- The threshold of economic nexus will be $100,000 of sales during the previous calendar year (with 2020 as the initial threshold year).
- Sales made through and taxed by a Marketplace Provider do not count towards the $100,000 economic nexus threshold and should not be reported as sales by the remote seller.
- There is no threshold of minimum number of tractions to create nexus, so 10,000 items sold into Florida for $5 per unit would not trigger economic nexus
- A “Marketplace Provider” is subject to the sales tax collection and remittance requirements imposed on dealers in Florida.
- A Marketplace Provider is defined as a person who facilitates a retail sale by a marketplace seller by listing or advertising for sale by the marketplace seller tangible personal property in a marketplace, and who directly, or indirectly through agreements or arrangements with third parties, collects payment from the customer and transmits the payment to the marketplace seller, regardless of whether the marketplace provider receives compensation or other consideration in exchange for its services.
- Very notable exclusions from industries held to be Marketplace Providers are:
- Any person who solely provides travel agency services
- A delivery network company making only local deliveries (75 miles or less)
- A payment processor business whose sole activity with respect to the marketplace is to handle payment transactions between the marketplace seller and customer.
- The Marketplace Provider has the right to recover state imposed tax, interest, and penalties from the Marketplace Seller if incomplete or inaccurate information is provided to the Marketplace Provider.
- Marketplace Seller is not supposed to include their sales tax return any sales made through a Marketplace Provider when the Marketplace Provider certifies that it will collect and remit such taxes
- Marketplace Provider and Marketplace Seller may contractually agree for the Marketplace Seller to collect and remit sales tax.
- The remote seller is required to collect the local surtax, which varies from county to county and changes often.
- The bracket system is removed and replaced with rounding as of July 1, 2021, but the dealer may be allowed to choose the bracket system or round between July 1 and September 30, 2021 (grace period)
- Marketplace Provider is required to collect and remit prepaid wireless E911 fees, waste tire fees, and lead-acid battery fees.
- The legislation applies to sales made after July 1, 2021. However, to determine whether a seller has met the threshold on July 1, 2021, the seller’s non-marketplace sales during 2020 are compared against the $100,000 threshold.
If you or your client is a remote seller, then I would strongly suggest both getting ready for the Florida sales tax collection process and, even more importantly, reviewing your current connections with Florida. Our law firm has been engaged by many companies to deal with concerns over economic nexus in remote states. When digging into the details, most of these companies had the same glaring problem – the company was unaware they already had substantial nexus with the remote states years before the Wayfair decision came out. This is a very costly problem because the process of registering to collect sales tax in a new state is designed to determine whether your company already had nexus prior to registering. More troubling is the fact that a company has no statute of limitations protections from a state going back in time if no sales tax returns have been filed. The following is a short list of pre-Wayfair nexus generating activities that still apply even after economic nexus laws are passed:
- Holding inventory in Florida (such as through Amazon FBA)
- Sales people in Florida
- Hiring subcontractors to do warranty work
- Remote employees in Florida
- Company owners or officers owning property in Florida
- Subsidiary or affiliated company having nexus with Florida
If your company or your client is worried about pre-Wayfair nexus activities, then a voluntary disclosure might be a very good solution to limit the company’s liability and cut off the lookback period to 3 years. To date, we have found the Department of Revenue has been willing to work with remote sellers through the Voluntary Disclosure program. If you have any questions about nexus for past activities or the implications of the bill on future activity, then please do not hesitate to contact our firm for a free initial consultation.
If your company or client is potentially a marketplace provider under this legislation, then you really need to be planning for this statute to pass now. Marketplace providers will be expected to be up and running on the day the statute is implemented, July 1, 2021. Your company will need to have all the systems in place to determine what is and what is not taxable in Florida. You will also need to have a system in place for excepting the different types of exemption certificates both for different types of products and different types of exempt purchasers.
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. Most notable to this article, Mr. Sutton was the lead author on an amicus brief filed in the US Supreme Court on behalf of the AAA-CPA in the SD v Wayfair case and attended oral arguments for the case. 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.
At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is Florida taxes, with a very heavy emphasis in Florida sales and use tax. We have defended Florida businesses against the Florida Department of Revenue 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 from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.
AUTHORITY
Senate Bill 50 (enacted version)
South Dakota v. Wayfair, 585 U.S. _____ (June 21, 2018).
Section 212.05, F.S., Sales, storage, use tax.
ADDITIONAL RESOURCES
FLORIDA SALES TAX - VOLUNTARY DISCLOSURE PROGRAM, published April 9, 2018, by Jeanette Moffa, Esq.
FLORIDA SALES TAX INFORMAL WRITTEN PROTEST, published November 17, 2018, by James Sutton, C.P.A., Esq.
SHIPPING: AN OVERLOOKED FLORIDA SALES TAX EXEMPTION, published September 12, 2019, by Jeanette Moffa, Esq.
FLORIDA - ECONOMIC NEXUS & MARKETPLACE FACILITATOR BILL IINTRODUCED, published February 20, 2019, by James Sutton, C.P.A., Esq.
POST-WAYFAIR - CAN YOU AFFORD TO WAIT TO REGISTER, published August 8, 2018, by James Sutton, C.P.A., Esq.
FLORIDA USE TAX AUDIT LETTER?, published June 14, 2015, by James Sutton, CPA, Esq. and Jerry Donnini, Esq.
GO TO JAIL FOR NOT PAYING FLORIDA SALES TAX?, published November 3, 2013, by James Sutton, CPA, Esq.