Section 144.752

Title X TAXATION AND REVENUE

Chapter 144

Effective - 01 Jan 2023, see footnote   

  144.752.  Marketplace facilitators, registration required — separate reporting and remittance of tax, procedure — rulemaking language. — 1.  For the purposes of this section, the following terms shall mean:

  (1)  "Marketplace facilitator", a person that:

  (a)  Facilitates a retail sale by a marketplace seller by listing or advertising for sale by the marketplace seller, in any forum, tangible personal property or services that are subject to tax under this chapter; and

  (b)  Either directly or indirectly through agreements or arrangements with third parties collects payment from the purchaser and transmits all or part of the payment to the marketplace seller.

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A marketplace facilitator is a seller and shall comply with the provisions of this chapter.  A marketplace facilitator does not include a person who provides internet advertising services, or product listing, and does not collect payment from the purchaser and transmit payment to the marketplace seller; does not include a person with respect to the provision of travel agency services or the operation of a marketplace or that portion of a marketplace that enables consumers to receive travel agency services; and does not include a third-party financial institution appointed by a merchant or a marketplace facilitator to handle various forms of payment transactions, such as processing credit cards and debit cards, and whose sole activity with respect to marketplace sales is to facilitate the payment transactions between two parties.  For the purposes of this subdivision, "travel agency services" means facilitating, for a commission, fee, or other consideration, vacation or travel packages; rental car or other travel reservations; tickets for domestic or foreign travel by air, rail, ship, bus, or other medium of transportation; or hotel or other lodging accommodations;

  (2)  "Marketplace seller", a seller that makes sales through any electronic marketplace operated by a marketplace facilitator;

  (3)  "Person", any individual; firm; copartnership; joint venture; association; corporation, municipal or private, whether organized for profit or not; state; county; political subdivision; state department, commission, board, bureau, or agency, except the department of transportation; estate; trust; business trust; receiver or trustee appointed by the state or a federal court; syndicate; or any other group or combination acting as a unit;

  (4)  "Purchaser", any person who is the recipient for a valuable consideration of any sale of tangible personal property acquired for use, storage, or consumption in this state;

  (5)  "Retail sale", the same meaning as defined under sections 144.010 and 144.011, excluding motor vehicles, trailers, motorcycles, mopeds, motortricycles, boats, and outboard motors required to be titled under the laws of the state and subject to tax under subdivision (9) of subsection 1 of section 144.020;

  (6)  "Seller", a person selling or furnishing tangible personal property or rendering services on the receipts from which a tax is imposed under section 144.020.

  2.  (1)  Beginning January 1, 2023, marketplace facilitators that engage in business activities within this state shall register with the department to collect and remit use tax, as applicable, on sales made through the marketplace facilitator's marketplace by or on behalf of a marketplace seller that are delivered into the state, whether by the marketplace facilitator or another person, and regardless of whether the marketplace seller for whom sales are facilitated possesses a retail sales license or would have been required to collect use tax had the sale not been facilitated by the marketplace facilitator.  Such retail sales shall include those made directly by the marketplace facilitator and shall also include those retail sales made by marketplace sellers through the marketplace facilitator's marketplace.  The collection and reporting requirements of this subsection shall not apply to retail sales other than those made through a marketplace facilitator's marketplace.  Nothing in this section shall be construed to limit or prohibit the ability of a marketplace facilitator and a marketplace seller to enter into agreements regarding the fulfillment of the requirements of this chapter.

  (2)  All taxable sales made through a marketplace facilitator's marketplace by or on behalf of a marketplace seller shall be deemed to be consummated at the location in this state to which the item is shipped or delivered, or at which possession is taken by the purchaser.

  3.  Marketplace facilitators that are required to collect use tax under this section shall report and remit the tax separately from any sales and use tax collected by the marketplace facilitator, or by affiliates of the marketplace facilitator, that the marketplace facilitator would have been required to collect and remit under the provisions of this chapter prior to January 1, 2023.  Such tax shall be reported and remitted as determined by the department.  Marketplace facilitators shall maintain records of all sales delivered to a location in the state, including electronic or paper copies of invoices showing the purchaser, address, purchase amount, and use tax collected.  Such records shall be made available for review and inspection upon request by the department.

  4.  Marketplace facilitators who properly collect and remit to the department in a timely manner use tax on sales in accordance with the provisions of this section by or on behalf of marketplace sellers shall be eligible for any discount provided under this chapter.

  5.  A marketplace facilitator shall separately state on an invoice provided to a purchaser the use tax collected and remitted on behalf of a marketplace seller.

  6.  Any taxpayer who remits use tax under this section shall be entitled to refunds or credits to the same extent and in the same manner provided for in section 144.190 for taxes collected and remitted under this section.  Nothing in this section shall relieve a purchaser of the obligation to remit use tax for any retail sale taxable under this chapter for which a marketplace facilitator or marketplace seller does not collect and remit the use tax.

  7.  Except as provided under subsection 8 of this section, marketplace facilitators shall be subject to the penalty provisions, procedures, and reporting requirements provided under the provisions of this chapter.

  8.  No class action shall be brought against a marketplace facilitator in any court in this state on behalf of purchasers arising from or in any way related to an overpayment of use tax collected on retail sales facilitated by a marketplace facilitator, regardless of whether that claim is characterized as a tax refund claim.  Nothing in this subsection shall affect a purchaser's right to seek a refund as provided under section 144.190.

  9.  The department may promulgate rules to implement the provisions of this section.  Any rule or portion of a rule, as that term is defined in section 536.010, that is created under the authority delegated in this section shall become effective only if it complies with and is subject to all of the provisions of chapter 536 and, if applicable, section 536.028.  This section and chapter 536 are nonseverable and if any of the powers vested with the general assembly pursuant to chapter 536 to review, to delay the effective date, or to disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking authority and any rule proposed or adopted after January 1, 2023, shall be invalid and void.

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(L. 2021 S.B. 153 & 97)

Effective 1-01-23, see § 144.1021