S.Amdt. 2496

1. Adds TITLE __--MARKETPLACE FAIRNESS at the end of the bill

   Adds a title

   In S. 2237 · Placed on Calendar Senate

   (ii) multiplying the limitation under subparagraph (B)(ii) of such paragraph (as so in effect) by a fraction the numerator of which is the number of days in the taxable year after December 31, 2011, and the denominator of which is the number of days in the taxable year.

   Inserted: TITLE __--MARKETPLACE FAIRNESS

   Inserted: SEC. __1. SHORT TITLE.

   Inserted: This title may be cited as the "Marketplace Fairness Act".

   Inserted: SEC. __2. SENSE OF CONGRESS.

   Inserted: It is the sense of Congress that--

   Inserted: (1) States should have the ability to enforce their existing sales and use tax laws and to treat similar sales transactions equally, without regard to the manner in which the sale is transacted,

   Inserted: (2) States should have the right to collect--or decide not to collect--taxes that are already owed under State law, and

   Inserted: (3) States should simplify their sales and use tax systems to ease burdens on remote sellers.

   Inserted: SEC. __3. AUTHORIZATION TO REQUIRE COLLECTION OF SALES AND USE TAXES.

   Inserted: (a) Streamlined Sales and Use Tax Agreement.--Each Member State under the Streamlined Sales and Use Tax Agreement is authorized to require all sellers not qualifying for a small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to that Member State pursuant to the provisions of the Streamlined Sales and Use Tax Agreement. Such authority shall commence beginning on the date that the State publishes notice of the State's intent to exercise the authority under this title, but no earlier than the first day of the calendar quarter that is at least 90 days after the date of the enactment of this Act.

   Inserted: (b) Alternative.--

   Inserted: (1) In general.--A State that is not a Member State under the Streamlined Sales and Use Tax Agreement is authorized to require all sellers not qualifying for the small seller exception to collect and remit sales and use taxes with respect to remote sales sourced to that State, but only if the State adopts and implements minimum simplification requirements. Such authority shall commence beginning no earlier than the first day of the calendar quarter that is at least 6 months after the date that the State enacts legislation to exercise the authority granted by this title and to implement each of the following minimum simplification requirements:

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   Inserted: (A) Provide--

   Inserted: (i) a single entity within the State responsible for all State and local sales and use tax administration, including return processing and audits for remote sales sourced to the State,

   Inserted: (ii) a single audit of remote sellers for all State and local taxing jurisdictions within that State, and

   Inserted: (iii) a single sales and use tax return to be used by remote sellers and single and consolidated providers and to be filed with the single entity within the State.

   Inserted: (B) Provide a uniform sales and use tax base among the State and the local taxing jurisdictions within the State.

   Inserted: (C) Source all interstate sales in compliance with the sourcing regime set forth in section __6(8).

   Inserted: (D) Provide--

   Inserted: (i) adequate software and services to remote sellers and single and consolidated providers that identifies the applicable destination rate, including the State and local sales tax rate (if any), to be applied on sales sourced to the State, and

   Inserted: (ii) certification procedures for both single providers and consolidated providers to make software and services available to remote sellers, and hold such providers harmless for any errors or omissions as a result of relying on information provided by the State.

   Inserted: (E) Relieve remote sellers from liability to the State or locality for the incorrect collection or remittance of sales or use tax, including any penalties or interest, if the liability is the result of an error or omission made by a single or consolidated provider.

   Inserted: (F) Relieve single and consolidated providers from liability to the State or locality for the incorrect collection or remittance of sales or use tax, including any penalties or interest, if the liability is the result of misleading or inaccurate information provided by a seller.

   Inserted: (G) Relieve remote sellers and single and consolidated providers from liability to the State or locality for the incorrect collection or remittance of sales or use tax, including any penalties or interest, if the liability is the result of information provided by the State or locality.

   Inserted: (H) Provide remote sellers and single and consolidated providers with 30 days notice of a rate change by the State or any locality in the State.

   Inserted: (2) Treatment of local rate changes.--For purposes of this subsection, local rate changes may only be effective on the first day of a calendar quarter. Failure to provide notice under paragraph (1)(H) shall require the State and locality to hold the remote seller or single or consolidated provider harmless for collecting tax at the immediately preceding effective rate during the 30-day period. Each State must provide updated rate information as part of the software and services required by paragraph (1)(D).

   Inserted: (c) Small Seller Exception.--A State shall be authorized to require a remote seller, or a single or consolidated provider acting on behalf of a remote seller, to collect sales or use tax under this title if the remote seller has gross annual receipts in total remote sales in the United States in the preceding calendar year exceeding $500,000. For purposes of determining whether the threshold in this subsection is met, the sales of all persons related within the meaning of subsections (b) and (c) of section 267 or section 707(b)(1) of the Internal Revenue Code of 1986 shall be aggregated.

   Inserted: SEC. __4. TERMINATION OF AUTHORITY.

   Inserted: The authority granted to a State by this title shall terminate on the date that the highest court of competent jurisdiction makes a final determination that the State no longer meets the requirements of this title, and the determination of such court is no longer subject to appeal.

   Inserted: SEC. __5. LIMITATIONS.

   Inserted: (a) In General.--Nothing in this title shall be construed as--

   Inserted: (1) subjecting a seller or any other person to franchise, income, or any other type of taxes, other than sales and use taxes,

   Inserted: (2) affecting the application of such taxes, or

   Inserted: (3) enlarging or reducing State authority to impose such taxes.

   Inserted: (b) No Effect on Nexus.--No obligation imposed by virtue of the authority granted by this title shall be considered in determining whether a seller or any other person has a nexus with any State for any purpose other than sales and use taxes.

   Inserted: (c) Licensing and Regulatory Requirements.--Other than the limitation set forth in subsection (a), and section __3, nothing in this title shall be construed as permitting or prohibiting a State from--

   Inserted: (1) licensing or regulating any person,

   Inserted: (2) requiring any person to qualify to transact intrastate business,

   Inserted: (3) subjecting any person to State taxes not related to the sale of goods or services, or

   Inserted: (4) exercising authority over matters of interstate commerce.

   Inserted: (d) No New Taxes.--Nothing in this title shall be construed as encouraging a State to impose sales and use taxes on any goods or services not subject to taxation prior to the date of the enactment of this Act.

   Inserted: (e) No Effect on Mobile Telecommunications Sourcing Act.--Nothing in this title shall be construed as altering in any manner or preempting the Mobile Telecommunications Sourcing Act (4 U.S.C. 116-126).

   Inserted: (f) Intrastate Sales.--The provisions of this title shall only apply to remote sales and shall not apply to intrastate sales or intrastate sourcing rules. States granted authority under section 3(a) shall comply with the intrastate provisions of the Streamlined Sales and Use Tax Agreement.

   Inserted: SEC. __6. DEFINITIONS AND SPECIAL RULES.

   Inserted: In this title:

   Inserted: (1) Consolidated provider.--The term "consolidated provider" means any person certified by a State who has the rights and responsibilities for sales and use tax administration, collection, remittance, and audits for transactions serviced or processed for the sale of goods or services made by remote sellers on an aggregated basis.

   Inserted: (2) Locality; local.--The terms "locality" and "local" refer to any political subdivision of a State.

   Inserted: (3) Member state.--The term "Member State"--

   Inserted: (A) means a Member State as that term is used under the Streamlined Sales and Use Tax Agreement as in effect on the date of the enactment of this Act, and

   Inserted: (B) does not include any associate member under the Streamlined Sales and Use Tax Agreement.

   Inserted: (4) Person.--The term "person" means an individual, trust, estate, fiduciary, partnership, corporation, limited liability company, or other legal entity, and a State or local government.

   Inserted: (5) Remote sale.--The term "remote sale" means a sale of goods or services attributed to a State with respect to which a seller does not have adequate physical presence to establish nexus under Quill Corp. v. North Dakota, 504 U.S. 298 (1992).

   Inserted: (6) Remote seller.--The term "remote seller" means a person that makes remote sales in a State.

   Inserted: (7) Single provider.--The term "single provider" means any person certified by a State who has the rights and responsibilities for sales and use tax administration, collection, remittance, and audits for transactions serviced or processed for the sale of goods or services made by remote sellers.

   Inserted: (8) Sourced.--For purposes of a State granted authority under section __3(b), the location to which a remote sale is sourced refers to the location where the item sold is received by the purchaser, based on the location indicated by instructions for delivery that the purchaser furnishes to the seller. When no delivery location is specified, the remote sale is sourced to the customer's address that is either known to the seller or, if not known, obtained by the seller during the consummation of the transaction, including the address of the customer's payment instrument if no other address is available. If an address is unknown and a billing address cannot be obtained, the remote sale is sourced to the address of the seller from which the remote sale was made. A State granted authority under section __3(a) shall comply with the sourcing provisions of the Streamlined Sales and Use Tax Agreement.

   Inserted: (9) State.--The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and any other territory or possession of the United States.

   Inserted: (10) Streamlined sales and use tax agreement.--The term "Streamlined Sales and Use Tax Agreement" means the multi-State agreement with that title adopted on November 12, 2002, as in effect on the date of the enactment of this Act and as further amended from time to time.

   Inserted: SEC. __7. SEVERABILITY.

   Inserted: If any provision of this title or the application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this title and the application of the provisions of such to any person or circumstance shall not be affected thereby.

   Original wording

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As printed