April 22, 2021
Florida enacts remote seller nexus and marketplace provider provisions for sales tax, reduces commercial rent tax rate
On April 19, 2021, Florida Governor Rick DeSantis signed SB 50, which imposes a sales and use tax collection obligation on certain remote sellers and marketplace providers. The new nexus standard applies to remote sales made or facilitated on or after July 1, 2021. SB 50 also reduces the rate of the commercial rent tax.
A remote seller that lacks any direct or attributed physical presence in the state but has a substantial number of remote sales (i.e., at least $100,000 in annual sales of tangible personal property to Florida customers in the previous calendar year) is considered a dealer1 required to collect and remit Florida sales and use tax.2
SB 50 also imposes a collection obligation on marketplace providers. 3 A marketplace provider that has a physical presence in Florida or makes or facilitates through a marketplace a substantial number of remote sales is considered a dealer required to collect and remit Florida sales and use tax. A marketplace provider does not include:
A marketplace provider must certify to its marketplace sellers that it will collect and remit tax on sales made through its marketplace. Generally, marketplace sellers are prohibited from collecting and remitting sales and use tax on sales made through a marketplace when the marketplace provider has certified that it will collect and remit tax. Effective April 1, 2022, however, marketplace providers and marketplace sellers that meet certain conditions can contractually agree to have the marketplace seller collect and remit tax. Both marketplace sellers with a physical presence in Florida, and those that do not have a physical presence in Florida but with a substantial number of remote sales into the state, must register and collect and remit tax on taxable retail sales made outside the marketplace. In determining whether the seller meets the substantial sales threshold, only sales made outside the marketplace will be considered.
A marketplace provider that is a dealer or a remote seller required to collect and remit tax must collect surtax on tangible personal property delivered within a county that imposes a surtax.
Effective April 1, 2022, marketplace providers are responsible for collecting and remitting any prepaid wireless E911 fee, waste tire fee and lead-acid-battery fee for taxable retail sales made through its marketplace.4
SB 50 requires dealers, which includes remote sellers and marketplace providers that meet the substantial sales threshold, to calculate sales and use tax due based on a rounding algorithm (moving away from the current bracket system), effective July 1, 2021.5 The rounding algorithm may be applied to the aggregate tax amount computed on all taxable items on an invoice or to each individual item on the invoice. This change also applies to the calculation of admission tax and the taxation of service warranties. For the period July 1, 2021 through September 30, 2021, taxpayers can calculate tax due using the rounding algorithm or the appropriate bracket system.
SB 50 reduces the tax rate on the total rent or license fee charged for commercial real property to 2% (from 5.5%).6 This reduction will take effect on the first day of the second month following the repeal of certain monthly distributions to the Unemployment Compensation Trust Fund as provided by Fla. Stat. Section 212.20(6)(d)6.h.
Florida is the 46th US jurisdiction (including the District of Columbia and Puerto Rico) to adopt an economic-nexus standard for sales and use tax purposes. Of the states that impose a sales and use tax, Missouri remains the only one that has not yet adopted an economic-nexus standard or marketplace-facilitator provisions, although the legislature of that state is currently considering bills that would establish such provisions. Kansas, through guidance from its Department of Revenue, implemented an economic-nexus standard but has not yet adopted marketplace facilitator provisions. On April 16, 2021, Kansas Governor Laura Kelly for the third consecutive year vetoed a bill (2021 KS SB 50) that included marketplace facilitator provisions as well as corporate income tax changes. The Kansas legislature may attempt to override the governor's veto of 2021 KS SB 50.
Affected taxpayers will need to update their systems and processes to reflect new collection and remittance requirements, as well as the new rounding requirement for their transactions sourced, and now subject, to Florida sales and transactional taxes.
1 The definition of "dealer" is amended to include (1) a retailer that transacts a substantial number of remote sales or (2) a marketplace provider that has a physical presence in the state or that makes or facilitates a substantial number of remote sales. See SB 50, sec. 8 (amending Fla. Stat. Section 212.06(2)(c) (defining "dealer")).
2 SB 50, sec. 5 (substantially amending Fla. Stat. Section 212.0596).
3 SB 50, sec. 6 (creating Fla. Stat. Section 212.05965) (describing the taxation of marketplace sales)).
4 SB 50, sec. 7 (amending Fla. Stat. Section 212.05965 by adding subsections (10) and (11)).
5 SB 50, sec. 11 (amending Fla. Stat. Section 212.12(10)).
6 SB 50, Sec. 14 (amending Fla. Stat. Sections 212.031(1)(c) and (d)).