Bill Text: CA AB2078 | 2009-2010 | Regular Session | Amended
Bill Title: Use tax: notification to purchasers: retailer engaged in
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2010-08-30 - To inactive file on motion of Senator Wolk. [AB2078 Detail]
Download: California-2009-AB2078-Amended.html
BILL NUMBER: AB 2078 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 24, 2010
AMENDED IN SENATE JUNE 16, 2010
AMENDED IN ASSEMBLY APRIL 27, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
INTRODUCED BY Assembly Member Charles Calderon
FEBRUARY 18, 2010
An act to amend Section 7055 6203
of, and to add Section 6208 to, the Revenue and Taxation Code,
relating to taxation.
LEGISLATIVE COUNSEL'S DIGEST
AB 2078, as amended, Charles Calderon. Use tax: notification to
purchasers: information report. retailer
engaged in business: controlled group.
The Sales and Use Tax Law imposes a tax on retailers measured by
the gross receipts from the sale of tangible personal property sold
at retail in this state of, or, and on the storage, use, or other
consumption in this state of, tangible personal property purchased
from a retailer for storage, use, or other consumption in this state.
That law requires every retailer engaged in business in this state,
as specified, and making sales of tangible personal property for
storage, use, or other consumption in this state to, at the time of
making the sales or, if the storage, use, or other consumption of the
tangible personal property is not then taxable, at the time the
storage, use, or other consumption becomes taxable, collect the tax
from the purchaser.
This bill would provide a rebuttable presumption that any retailer
that is part of a controlled group of corporations, and that
controlled group of corporations has a component member that is a
retailer engaged in business in this state, as described, is presumed
to be a retailer engaged in business in this state.
This bill would require each retailer that is not required to
collect use tax to provide notification on its retail Internet Web
site or catalogue that tax is imposed on the storage, use, or other
consumption in this state of the tangible personal property purchased
from the retailer that is not exempt, and is required to be paid by
the purchaser, as provided.
The Sales and Use Tax Law also authorizes, in administration of
the use tax, the State Board of Equalization to require the filing of
reports by any person or class of persons having in its or their
possession or custody information relating to sales of tangible
personal property the storage, use, or other consumption of which is
subject to the tax.
This bill would require every person not required to register with
the board that sells tangible personal property the storage, use, or
other consumption of which is subject to use tax to file a report
with the board regarding those sales, as specified. This requirement
would not apply to persons whose receipts from those sales do not
exceed a specified amount.
This bill would provide that its provisions are severable.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6203 of the Revenue
and Taxation Code is amended to read:
6203. (a) Except as provided by Sections 6292 and 6293, every
retailer engaged in business in this state and making sales of
tangible personal property for storage, use, or other consumption in
this state, not exempted under Chapter 3.5 (commencing with Section
6271) or Chapter 4 (commencing with Section 6351), shall, at the time
of making the sales or, if the storage, use, or other consumption of
the tangible personal property is not then taxable hereunder, at the
time the storage, use, or other consumption becomes taxable, collect
the tax from the purchaser and give to the purchaser a receipt
therefor in the manner and form prescribed by the board.
(b) As respects leases constituting sales of tangible personal
property, the tax shall be collected from the lessee at the time
amounts are paid by the lessee under the lease.
(c) "Retailer engaged in business in this state" as used in this
section and Section 6202 means and includes any of the following:
(1) Any retailer maintaining, occupying, or using, permanently or
temporarily, directly or indirectly, or through a subsidiary, or
agent, by whatever name called, an office, place of distribution,
sales or sample room or place, warehouse or storage place, or other
place of business.
(2) Any retailer having any representative, agent, salesperson,
canvasser, independent contractor, or solicitor operating in this
state under the authority of the retailer or its subsidiary for the
purpose of selling, delivering, installing, assembling, or the taking
of orders for any tangible personal property.
(3) As respects a lease, any retailer deriving rentals from a
lease of tangible personal property situated in this state.
(4) (A) Any retailer soliciting orders for tangible personal
property by mail if the solicitations are substantial and recurring
and if the retailer benefits from any banking, financing, debt
collection, telecommunication, or marketing activities occurring in
this state or benefits from the location in this state of authorized
installation, servicing, or repair facilities.
(B) This paragraph shall become operative upon the enactment of
any congressional act that authorizes states to compel the collection
of state sales and use taxes by out-of-state retailers.
(5) Notwithstanding Section 7262, a retailer specified in
paragraph (4) above, and not specified in paragraph (1), (2), or (3)
above, is a "retailer engaged in business in this state" for the
purposes of this part and Part 1.5 (commencing with Section 7200)
only.
(d) (1) For purposes of this section, "engaged in business in this
state" does not include the taking of orders from customers in this
state through a computer telecommunications network located in this
state which is not directly or indirectly owned by the retailer when
the orders result from the electronic display of products on that
same network. The exclusion provided by this subdivision shall apply
only to a computer telecommunications network that consists
substantially of online communications services other than the
displaying and taking of orders for products.
(2) This subdivision shall become inoperative upon the operative
date of provisions of a congressional act that authorize states to
compel the collection of state sales and use taxes by out-of-state
retailers.
(e) Except as provided in this subdivision, a retailer is not a
"retailer engaged in business in this state" under paragraph (2) of
subdivision (c) if that retailer's sole physical presence in this
state is to engage in convention and trade show activities as
described in Section 513(d)(3)(A) of the Internal Revenue Code, and
if the retailer, including any of his or her representatives, agents,
salespersons, canvassers, independent contractors, or solicitors,
does not engage in those convention and trade show activities for
more than 15 days, in whole or in part, in this state during any
12-month period and did not derive more than one hundred thousand
dollars ($100,000) of net income from those activities in this state
during the prior calendar year. Notwithstanding the preceding
sentence, a retailer engaging in convention and trade show
activities, as described in Section 513(d)(3)(A) of the Internal
Revenue Code, is a "retailer engaged in business in this state," and
is liable for collection of the applicable use tax, with respect to
any sale of tangible personal property occurring at the convention
and trade show activities and with respect to any sale of tangible
personal property made pursuant to an order taken at or during those
convention and trade show activities.
(f) (1) Any retailer that is part of a controlled group of
corporations, and that controlled group of corporations has a
component member that is a retailer engaged in business in this
state, as described in paragraph (1), (2), (3), or (4) of subdivision
(c), shall be presumed to be a retailer engaged in business in this
state. This presumption may be rebutted by evidence that during the
calendar year at issue the component member that is a retailer
engaged in business in this state did not engage in any of the
activities described in paragraph (1), (2), (3), or (4) of
subdivision (c) on behalf of the retailer.
(2) For purposes of this subdivision, "controlled group of
corporations" means "controlled group of corporations" as defined in
Section 1563(a) of the Internal Revenue Code, and "component member"
means "component member" as defined in Section 1563(b) of the
Internal Revenue Code.
(f)
(g) Any limitations created by this section upon the
definition of "retailer engaged in business in this state" shall only
apply for purposes of tax liability under this code. Nothing in this
section is intended to affect or limit, in any way, civil liability
or jurisdiction under Section 410.10 of the Code of Civil Procedure.
SECTION 1. SEC. 2. Section 6208 is
added to the Revenue and Taxation Code, to read:
6208. Each retailer making sales of tangible personal property,
the storage, use, or other consumption of which is subject to tax,
that is not required to collect use tax shall provide notification on
its retail Internet Web site or retail catalogue that tax is imposed
by this part on the storage, use, or other consumption in this state
of the tangible personal property purchased from the retailer that
is not exempt, and is required to be paid by the purchaser. The
notification shall be readily visible.
SEC. 3. The provisions of this bill are severable.
If any provision of this bill or its application is held invalid,
that invalidity shall not affect other provisions or applications
that can be given effect without the invalid provision or
application.
SEC. 2. Section 7055 of the Revenue and
Taxation Code is amended to read:
7055. (a) In administration of the use tax the board may require
the filing of reports by any person or class of persons having in its
or their possession or custody information relating to sales of
tangible personal property the storage, use, or other consumption of
which is subject to the tax. The reports shall be filed when the
board requires and shall set forth the names and addresses of
purchasers of the tangible personal property, the sales price of the
property, the date of sale, and such other information as the board
may require.
(b) (1) Every person that is not registered with the board that
sells tangible personal property the storage, use, or other
consumption of which is subject to use tax, shall file with the
board, on or before the last day of the calendar month following each
quarterly period, a report that sets forth the names and addresses
of purchasers of the tangible personal property, the sales price of
the property, the date of sale, and such other information as the
board may require.
(2) Paragraph (1) shall not apply to a person whose receipts from
sales described in paragraph (1) are less than one hundred thousand
dollars ($100,000) in the prior year, and are reasonably expected to
be less than one hundred thousand dollars ($100,000) in the current
year.
