Bill Text: IN SB0240 | 2012 | Regular Session | Introduced
Bill Title: Use tax collection on remote sales.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-04 - First reading: referred to Committee on Tax and Fiscal Policy [SB0240 Detail]
Download: Indiana-2012-SB0240-Introduced.html
Citations Affected: IC 6-2.5.
Synopsis: Use tax collection on remote sales. Provides that for
purposes of the Indiana sales and use tax law, a "retail merchant
engaged in business in Indiana" includes any person that uses an office,
place of distribution, sales location, sample location, warehouse,
storage place, or other place of business located in Indiana. Voids any
ruling or agreement between a person and the state if it permits the
person to not collect sales or use tax even if a warehouse, distribution
center, or fulfillment center that is located in Indiana is owned or
operated by the person or an affiliated person unless the general
assembly ratifies the ruling or agreement in the next legislative session.
Provides that a person is presumed to be a retail merchant engaged in
business in Indiana if the person: (1) makes retail transactions in which
a person acquires personal property or taxable services for use, storage,
or consumption in Indiana or is affiliated with a person that has
substantial nexus in Indiana and certain conditions are met; or (2)
enters into an agreement with one or more residents of Indiana under
which the resident directly or indirectly refers potential customers to
the retail merchant, if the cumulative gross receipts from the sales by
the retail merchant to customers in Indiana who are referred to the
retail merchant is greater than $10,000 during the preceding 12 months.
Specifies that these presumptions may be rebutted.
Effective: July 1, 2012.
January 4, 2012, read first time and referred to Committee on Tax and Fiscal Policy.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning
taxation.
(b) The person who acquires property in a retail transaction is liable for the tax on the transaction and, except as otherwise provided in this chapter, shall pay the tax to the retail merchant as a separate added amount to the consideration in the transaction.
(a) "Use" means the exercise of any right or power of ownership over tangible personal property.
(b) "Storage" means the keeping or retention of tangible personal
property in Indiana for any purpose except the subsequent use of that
property solely outside Indiana.
(c) "A retail merchant engaged in business in Indiana" includes any
retail merchant who makes retail transactions in which a person
acquires personal property or services for use, storage, or consumption
in Indiana and who:
(1) uses or maintains an office, place of distribution, sales
location, sample location, warehouse, storage place, or other place
of business which is located in Indiana, and which the retail
merchant maintains, occupies, or uses, either permanently or
temporarily, either directly or indirectly, and either by the retail
merchant or through a representative, agent, or subsidiary; if the
place of business is not owned by a common carrier and used
in the common carrier's regular course of business;
(2) maintains a representative, agent, salesman, canvasser, or
solicitor who, while operating in Indiana under the authority of
and on behalf of the retail merchant or a subsidiary of the retail
merchant, sells, delivers, installs, repairs, assembles, sets up,
accepts returns of, bills, invoices, or takes orders for sales of
tangible personal property or services to be used, stored, or
consumed in Indiana;
(3) is otherwise required to register as a retail merchant under
IC 6-2.5-8-1; or
(4) may be required by the state to collect tax under this article to
the extent allowed under the Constitution of the United States and
federal law.
(d) A retail merchant is presumed to be engaged in business in
Indiana if any person, other than a common carrier acting in its
capacity as a common carrier, has substantial nexus in Indiana
and:
(1) sells a similar line of products as the retail merchant and
does so under the same or a similar business name;
(2) uses trademarks, service marks, or trade names in Indiana
that are the same or substantially similar to those used by the
retail merchant;
(3) delivers, installs, assembles, or performs maintenance
services for the retail merchant's customers within Indiana;
(4) facilitates the retail merchant's delivery of property to
customers in Indiana by allowing the retail merchant's
customers to pick up property sold by the retail merchant at
an office, distribution facility, warehouse, storage place, or
similar place of business maintained by the retail merchant in
Indiana; or
(5) conducts any other activities in Indiana that are
significantly associated with the retail merchant's ability to
establish and maintain a market in this state for the retail
merchant's sales.
(e) The presumption in subsection (d) may be rebutted by
demonstrating that the person's activities in Indiana are not
significantly associated with the retail merchant's ability to
establish or maintain a market in Indiana for the retail merchant's
sales.
(f) This subsection applies to sales made, uses occurring, and
services rendered after September 30, 2012, regardless of the date
the person and the resident entered into the agreement described
in this subsection. However, as used in this subsection and
subsection (g), the term "the preceding twelve (12) months"
includes the period September 1, 2011, through August 31, 2012. A
retail merchant is presumed to be engaged in business in Indiana
if the retail merchant enters into an agreement with one (1) or
more residents of Indiana under which the resident, for a
commission or other consideration, directly or indirectly refers
potential customers, whether by a link on an Internet web site, an
in-person oral presentation, telemarketing, or otherwise, to the
retail merchant, if the cumulative gross receipts from sales by the
retail merchant to customers in Indiana who are referred to the
retail merchant by all residents with this type of an agreement with
the retail merchant exceed ten thousand dollars ($10,000) during
the preceding twelve (12) months.
(g) The presumption in subsection (f) may be rebutted by
submitting proof that the residents with whom the retail merchant
has an agreement did not engage in any activity within Indiana
that was significantly associated with the retail merchant's ability
to establish or maintain the retail merchant's market in Indiana
during the preceding twelve (12) months. The proof may consist of
sworn written statements from all of the residents with whom the
retail merchant has an agreement stating that they did not engage
in any solicitation in Indiana on behalf of the retail merchant
during the preceding twelve (12) months if these statements were
provided and obtained in good faith.
(d) (h) Notwithstanding any other provision of this section, tangible
or intangible property that is:
(1) owned or leased by a person that has contracted with a
commercial printer for printing; and
(2) located at the premises of the commercial printer;
shall not be considered to be, or to create, an office, a place of distribution, a sales location, a sample location, a warehouse, a storage place, or other place of business maintained, occupied, or used in any way by the person. A commercial printer with which a person has contracted for printing shall not be considered to be in any way a representative, an agent, a salesman, a canvasser, or a solicitor for the person.
(i) A ruling by or agreement, whether written or oral, express or implied, with a retail merchant or a person and the state, including any state agency or department, is void, if it states or rules, or the state agrees that the retail merchant or person is not a retail merchant engaged in business in Indiana required to collect sales and use tax in Indiana despite the presence of a warehouse, distribution center, or fulfillment center in Indiana that is owned or operated by the person or an affiliated person, unless the ruling or agreement is:
(1) made a public record; and
(2) ratified specifically by an act of the general assembly in the session immediately following the date of the ruling or agreement.
(j) If a person sells or leases tangible personal property or services to a state agency (as defined in IC 4-13-2-1(b)) that person and any affiliated person shall, as a prerequisite for the sale or lease, register with the department as a retail merchant and comply with all legal requirements imposed on a retail merchant, including the requirement to collect and remit sales or use tax on all taxable sales of tangible personal property and services to customers in Indiana.
(k) For purposes of subsections (i) and (j), "affiliated person" means any person that is a member of the same "controlled group of corporations", as defined in Section 1563(a) of the Internal Revenue Code, as the retail merchant or any other entity that, notwithstanding its form of organization, bears the same ownership relationship to the retail merchant as a corporation that is a member of the same controlled group of corporations (as defined in 26 U.S.C. 1563(a)).
