SB 965

SENATE BILL NO. 965
A bill to amend 1937 PA 94, entitled
"Use tax act,"
by amending sections 5 and 5c (MCL 205.95 and 205.95c),
section 5 as amended by 2007 PA 93 and section 5c as added by 2019 PA 144.
the people of the state of michigan enact:
Sec. 5. (1) Except as otherwise provided in this subsection
or subsection (5), a person subject to the tax under this act shall register
with the department and give the name and address of each agent operating in
this state, the location of all distribution or sales houses or offices or
other places of business in this state, and any other information that the
department requires relevant to the enforcement of this act. However, a seller
holding a sales tax license obtained under the general sales tax act, 1933 PA
167, MCL 205.51 to 205.78, is not required to separately register with the
department under this act. Every person subject to the tax under this act shall
source sales in accordance with section 20 and collect the tax imposed by this
act from the consumer.
(2) The corporation, corporations,
securities, and land development commercial licensing bureau of the department of labor and economic growth licensing and regulatory affairs shall not issue to
any foreign corporation subject to the tax under this act a certificate of
authority to do business in this state or approve and file the proposed
articles of incorporation submitted to it by any domestic corporation
authorizing or permitting that corporation to conduct any business subject to
the tax under this act unless the corporation submits with the application for
the certificate of authority or proposed articles of incorporation an
application for registration of the corporation under this act or an
application for a sales tax license under the general sales tax act, 1933 PA
167, MCL 205.51 to 205.78. The corporations,
securities, and commercial licensing bureau shall transmit the application
shall be transmitted to the department. by the corporation,
securities, and land development bureau.
(3) A domestic
corporation or a foreign corporation authorized to transact business in this
state that submits a certificate of dissolution or requests a certificate of
withdrawal from this state shall request a certificate from the department
stating that taxes are not due under section 27a of 1941 PA 122, MCL 205.27a,
not more than 60 days after submitting the certificate of dissolution or
requesting the certificate of withdrawal. A corporation that does not request a
certificate stating that taxes are not due is subject to the same penalties
under section 24 of 1941 PA 122, MCL 205.24, that a taxpayer would be subject
to for failure to file a return.
(4) A lessor may
elect to pay use tax on receipts from the rental or lease of the tangible
personal property in lieu of payment of sales or use tax on the full cost of
the property at the time it is acquired. For tax years that begin after
December 31, 2001, in order to make a valid election under this subsection, a
lessor of tangible personal property that is an aircraft shall obtain a use tax
registration by the earlier of the date set for the first payment of use tax
under the lease or rental agreement or 90 days after the lessor first brings
the aircraft into this state.
(5) A seller
registered under the streamlined sales and use tax agreement who that is not
otherwise subject to the tax under this act is not required to register under
this section because of the registration under the streamlined sales and use
tax agreement.
Sec. 5c. (1) Notwithstanding anything to the contrary
in this act, a marketplace facilitator that has nexus in this state shall
collect and remit the tax due under this act on all taxable sales made by the
marketplace facilitator or facilitated for marketplace sellers to a purchaser
in this state regardless of whether the marketplace seller for whom sales are
facilitated has nexus with this state.
(2) A marketplace
facilitator is a person liable for the tax imposed under this act, regardless
of whether the marketplace facilitator makes only facilitated sales for
marketplace sellers or a combination of direct and facilitated sales and has
all the rights and duties of a taxpayer under this act.
(3) A marketplace
facilitator shall report its direct sales and the sales it facilitates to
purchasers in this state in a manner as prescribed by the department.
(4) A class action
shall not be brought against a marketplace facilitator in any court of this
state on behalf of purchasers arising from or in any way related to an
overpayment of use tax collected and remitted on sales facilitated by the
marketplace facilitator, regardless of whether that claim is characterized as a
tax refund claim. Nothing in this subsection affects a purchaser's right to
seek a refund as provided under section 14b.
(5) Nothing in this
section affects the obligation of a purchaser to remit the tax imposed by this
act for a taxable transaction on which a marketplace facilitator or marketplace
seller does not remit sales or use tax.
(6) Except as
otherwise provided in this subsection, if a marketplace facilitator is required
to collect and remit tax under subsection (1), the department shall audit only
the marketplace facilitator for sales made by marketplace sellers that were
facilitated by the marketplace facilitator. The department shall not audit a
marketplace seller for sales facilitated by a marketplace facilitator required
to collect and remit tax under subsection (1) unless the marketplace seller
fails to provide the marketplace facilitator with sufficient information to the
extent that the marketplace facilitator is not liable under subsection (7).
(7) A marketplace
facilitator is relieved of liability under this section for failure to collect
and remit the correct amount of tax to the extent that the marketplace
facilitator demonstrates, to the satisfaction of the department, that the
failure was due to incorrect or insufficient information given to the
marketplace facilitator by the marketplace seller. The relief under this
subsection does not apply if the marketplace seller is an affiliate of the
marketplace facilitator.
(8) A marketplace
facilitator is relieved of liability under this section if the marketplace
facilitator demonstrates, to the satisfaction of the department, that the tax
levied under this act on a sale facilitated by the marketplace facilitator was
paid to the department by the marketplace seller or provides a claim of
exemption provided by the marketplace seller's purchaser.
(9) A marketplace
seller is not liable for the tax imposed by this act on sales made through a
marketplace facilitator required to collect and remit tax under subsection (1)
unless the marketplace seller fails to provide the marketplace facilitator with
sufficient information to the extent that the marketplace facilitator is not
liable under subsection (7).
(10) This section
applies regardless of whether the marketplace facilitator has a physical
presence in this state.
(11) As used in
this section:
(a)
"Affiliate" means an affiliated person as that term is defined in
section 5a.
(b) "Marketplace
facilitator" means a person that meets the requirements of subparagraph (i), but does not include a person described
in subparagraph (ii), (iii), or (iv):
(i) A person is a marketplace facilitator if
the person facilitates a retail sale by a marketplace seller by listing or
advertising for sale by a marketplace seller in a marketplace, tangible
personal property or taxable services and either directly or indirectly through
agreements or arrangements with third parties or its affiliates collecting
payment from the customer and transmitting that payment to the marketplace
seller for consideration.
(ii) Marketplace facilitator does not include
a person who operates a platform or forum that provides internet, print,
electronic, or any other form of advertising services, including listing
tangible personal property or services for sale, if the person does not also
engage directly or indirectly, through 1 or more affiliates, in the activities
described in subparagraph (i).
(iii) A person is not a marketplace
facilitator with respect to the sale of or charges for rooms, lodgings, or
accommodations that are described in section 3a
if the rooms, lodgings, or accommodations are
provided by a hotelkeeper, motel operator, or other person that is registered
under section 5 or licensed under section 3 of the general sales tax act, 1933
PA 167, MCL 205.53.and are not residential
dwelling units.
(iv) A person is not a marketplace
facilitator with respect to the sale of telecommunications services as
described in section 3a.
(c) "Marketplace
seller" means a person that makes retail sales through a physical or
electronic marketplace operated by a marketplace facilitator.
(d) "Residential dwelling unit" means a cabin, house, trailer,
vehicle, or structure, or portion thereof, that is used, or designed to be
used, as a residence or home of 1 or more individuals.