Peer-to-Peer Car-Sharing Companies Must Collect Florida Sales Tax Jan 1, 2022
Starting January 1, 2022, peer-to-peer car sharing service such as Turo.com and GetARound.com, will need collect and remit sales tax, local discretionary sales surtax, and rental car surcharge on their vehicle rentals. Back in 2020, Florida attempted to pass legislation taxing ride sharing, but their plans were derailed in perhaps the same way all our plans were derailed in early 2020. However, on January 12, 2021, the state legislature was back at it again, this time with Senate Bill 566: Motor Vehicle Rentals. On June 29, 2021, the governor approved the new legislation.
Sales Tax
Section 212.05, Fla. Stat. is the “homepage” of Florida sales tax law. It is in this provision that the legislature declares its intent that every person is exercising a taxable privilege who engages in the business of selling tangible personal property at retail in this state. But while retail sales of tangible personal property are perhaps the most familiar of taxable transactions, section 212.05, Fla. Stat. also imposes sales tax on a variety of other transactions.
For example, in 212.05(1)(c), Fla. Stat., the Department imposes a 6% tax on the gross proceeds derived from the lease or rental of tangible personal property and special provisions are outlined for the rental of motor vehicles. Senate Bill 566, now known as Ch. 2021-175, adds that the special provisions now also apply to peer-to-peer car-sharing programs. Specifically, pursuant to 212.05(1)(c)(1.)(c.), provides:
“If a motor vehicle is rented through a peer-to-peer car-sharing program, the peer-to-peer car-sharing program shall collect and remit the applicable tax due in connection with the rental.”
Rental Car Surcharge
While most of us are probably familiar with Turo’s peer-to-peer car sharing service, if there’s any doubt as to whether a company is required to collect and remit tax and surcharge, Florida’s rental car surcharge statute provides a crystal-clear definition of the type of company it wants to collect and remit.
Section 212.0606, Fla. Stat., the rental car surcharge statute, defines in subsection (1) as follows:
- “Car-sharing service” means a membership-based organization or business, or division thereof, which requires the payment of an application fee or a membership fee and provides member access to motor vehicles:
1. Only at locations that are not staffed by car-sharing service personnel employed solely for the purpose of interacting with car-sharing service members;
2. Twenty-four hours per day, 7 days per week;
3. Only through automated means, including, but not limited to, a smartphone application or an electronic membership card;
4. On an hourly basis or for a shorter increment of time;
5. Without a separate fee for refueling the motor vehicle;
6. Without a separate fee for minimum financial responsibility liability insurance; and
7. Owned or controlled by the car-sharing service or its affiliates.
The surcharge imposed is $1 per day or any part of a day on each peer-to-peer car-sharing program agreement involving a shared vehicle that is registered in this state and designed to carry fewer than nine passengers for financial consideration and without transfer of the title of the shared vehicle.
This rule differs from the imposition of rental car surcharge on traditional rental car company agreements. Specifically, motor vehicle rental car companies are subject to a $2 rental car surcharge per day or any part of a day. Perhaps the Florida legislature figured that a rental car company is unlikely to rent the same car more than once a day, whereas it is more likely a Turo vehicle is rented more than once per day. Even with a surcharge 50% less than that imposed on rental car companies, it is therefore possible the overall surcharge burden is heavier on the peer-to-peer car-sharing companies.
One other difference between the imposition of rental car surcharge on motor vehicle rental companies compared to peer-to-peer car-sharing companies is that it does not matter whether a vehicle owned by a motor vehicle rental company is licensed in Florida. However, for a peer-to-peer car-share to be subject to the rental car surcharge, the vehicle must be registered in Florida.
To further confuse the issue, in cases where a member of a car-sharing services uses the same motor vehicle for 24 hours or more, a surcharge of $2 per day or any part of a day is imposed. Essentially, if a peer-to-peer car-share vehicle is being used in the same way that a vehicle at a rental car company is being used, then the surcharge applies to that peer-to-peer car-share vehicle as if it was in fact a traditional rental car. Meanwhile, if a traditional rental car is being used similar to a peer-to-peer car-share vehicle in that the vehicle is used for less than 24 hours, then the $1 per usage applies. This way, rental car companies engaging in shorter-term rentals cannot save on their overall surcharge burden just because they are a rental car company. As for car-share companies, they will not get away with a reduced surcharge burden should their vehicles be used for more than 24 hours.
Fortunately for the drivers and customers of the peer-to-peer car-share platforms such as Turo, the car-share company is required to collect the surcharge.
Surcharge
As if the burden of collecting state tax and surcharge is not heavy enough on poor peer-to-peer car-share companies, these transactions are also subject to local discretionary surtax. In other words, in addition to paying the state, Florida’s counties also get their share. Fortunately, Florida legislators contemplated the practical reality that customers quite frequently cross county borders. In such cases, who gets the local discretionary surtax?
Historically, when issues like this arise, such as with long distance trucking, state tax authorities apportion the tax. Therefore, if ¾ of your trip occurs in county A and ¼ occurs in county B, then county A received ¾ of the tax and county B receives ¼ of the tax. However, to keep it simple, Florida legislators have attributed the surcharge to the county corresponding to the location of the motor vehicle at the car-sharing start time.
Florida – What’s Next?
Florida is famously an advantageous place to live for income tax reasons. However, it also has historically been an advantageous place to live for state tax reasons as well. After the landmark South Dakota vs. Wayfair case authorized states to impose sales tax nexus on remote sellers, Florida was the second to last state with a sales tax to impose such a law. In fact, it was three years after the Supreme Court of the United States case that Florida’s economic nexus law became effective. Similarly, states have been jumping at the opportunity to tax the new industries of peer-to-peer car-sharing, Airbnb rentals, and digital streaming over the last several years. As with economic nexus legislation, Florida was slow to jump on this bandwagon as well. However, despite its tax-friendly image, Florida has suffered as all states have during the pandemic. Resultingly, it is telling that 2021 was the year that both economic nexus legislation as well as legislation imposing rental car surcharge on peer-to-peer car-sharing services were enacted.
If Florida is perhaps the most hesitant state to impose new taxes or expand its tax base, then Maryland is probably the state least hesitant, and in fact, most aggressive, in establishing new taxes on emerging industries. Currently, Maryland is spearheading the tax on social media companies, such as Facebook and Instagram, which for years have arguably skated by since their purely digital services were not captured in most states’ antiquated sales tax statutes.
However, while the idea of taxing monster-sized social media and other technology companies such as Google is gaining traction, particularly in states facing tough pandemic-related revenue losses, the practical application of such laws remains difficult. The angle states have taken is to impose tax on digital advertising, but situs issues create many problems for taxing authorities.
With peer-to-peer car sharing having very targeted legislation to require tax collection, other “help people rent their stuff” industries should be on notice. The peer-to-peer boat sharing/rental industry is a very likely category to be targeted next and the people that rent their boats through these agencies should already be on notice that they are required to collect/remit tax on the rentals.
As discussed above in the peer-to-peer car-share discretionary surtax issue, which county gets the tax when a ride-share starts in county A but ends in county B? Well, in a car that is relatively easy to determine thanks to GPS and the fact that the vehicle is a physical item that physically exists in both counties for specific periods of trip. Florida decided that the situs of such transactions is established by the start location.
However, how do you identify situs of an online good? If a company located in state A hires Facebook to advertise in states A through Z, how can such a sale of digital advertising services possibly be divvied up? One solution is to impose tax similarly to how Florida does for its peer-to-peer car-share discretionary surtax issue and allocate the tax purely to the location where it all starts: in the state where the customer is located. However, in such a scenario, only one state gets the tax. Whereas, if the tax is allocated by “user,” meaning by the number and location of people seeing the advertisement, then every state gets a piece.
Time will tell how such situs issues are resolved in other industries, especially those in the digital world. Thankfully, as Florida prefers to be late to the tax game, it has the benefit of seeing other states’ errors and can remedy them before the problems arise. In the case of Florida’s tax, surtax, and surcharge on peer-to-peer car-sharing, Florida has resolved the situs issue. We’ll find out in 2022 what problems remain unresolved.
Jeanette Moffa is an attorney in the Fort Lauderdale office of Moffa, Sutton, & Donnini, P.A. She focuses her practice in Florida state and local tax, with an emphasis on sales and use tax. Jeanette provides SALT planning and consulting as part of her practice, addressing issues such as nexus and taxability, including exemptions, inclusions, and exclusions of transactions from the tax base. In addition, she handles tax controversy, working with state and local agencies in resolution of assessment and refund cases. You can learn more about Jeanette 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
ADDITIONAL RESOURCES
FL TAX LEGISLATURE TARGETS UBER-LYFT, by James Sutton, Esq., published January 29, 2020
2022 FLORIDA SALES TAX RATE ON COMMERCIAL RENT, by James Sutton, CPA, Esq, published December 8, 2021
IS LABOR SUBJECT TO SALES TAX IN FLORIDA?, by Jeanette Moffa, Esq., published October 4, 2021
FLORIDA TAX INCENTIVES FOR BUSINESS, by Jerry Donnini, Esq., published November 10, 2013
FLORIDA GOVERNOR SIGNS ECONOMIC NEXUS LEGISLATION, by James Sutton, Esq., published April 20, 2021
FL Supreme Court 1% Hillsborough Surtax Invalid, by Jeanette Moffa, Esq., published February 27, 2021