Bill Text: IN SB0309 | 2013 | Regular Session | Introduced
Bill Title: Use tax nexus and collection.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2013-01-08 - First reading: referred to Committee on Appropriations [SB0309 Detail]
Download: Indiana-2013-SB0309-Introduced.html
Citations Affected: IC 6-2.5-2-1; IC 6-2.5-3-1.
Synopsis: Use tax nexus and collection. Provides that for purposes of
the Indiana sales and use tax law, a "retail merchant engaged in
business in Indiana" includes any retail merchant who: (1) makes retail
transactions in which a person acquires personal property or taxable
services for use, storage, or consumption in Indiana; and (2) enters into
an arrangement with any person, other than a common carrier, to
facilitate the retail merchant's delivery of property to customers in
Indiana by allowing customers to pick up property sold by the retail
merchant at a place of business maintained by the person in Indiana.
Specifies that a retail merchant may be required to collect and remit
sales or use taxes if the retail merchant conducts activities in Indiana
on behalf of the retail merchant that are significantly associated with
the retail merchant's ability to establish and maintain a market in
Indiana. Provides that a retail merchant is presumed to be engaged in
business in Indiana if an affiliate of the retail merchant has substantial
nexus in Indiana and certain additional conditions are satisfied.
Provides that a retail merchant is presumed to be engaged in business
in Indiana if the retail merchant 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 by all
residents is greater than $10,000 during the preceding 12 months.
Permits the presumptions to be rebutted. Specifies that the use tax
nexus provisions apply to transactions that occur after June 30, 2013.
Effective: July 1, 2013.
January 8, 2013, read first time and referred to Committee on Appropriations.
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) 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, or
affiliate;
(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 or an affiliate
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) enters into an arrangement with any person, other than a
common carrier, to facilitate 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 person
in Indiana;
(3) (4) is otherwise required to register as a retail merchant under
IC 6-2.5-8-1; or
(4) (5) 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) Notwithstanding any other law, a person may be required to
collect and remit gross retail tax or use tax as a retail merchant
engaged in business in Indiana under subsection (c) if the activities
conducted by the person in Indiana on behalf of a retail merchant
are significantly associated with the retail merchant's ability to
establish and maintain a market in Indiana.
(d) (e) 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.
(f) A retail merchant is presumed to be engaged in business in Indiana if an affiliate of the retail merchant has substantial nexus in Indiana and:
(1) the retail merchant sells a line of products similar to a line of products sold by the affiliate, and the retail merchant does so under a business name that is the same as or is similar to the affiliate's business name;
(2) the affiliate uses its Indiana employees or its Indiana facilities to advertise, promote, or facilitate sales by the retail merchant to customers; or
(3) the affiliate uses trademarks, service marks, or trade names in Indiana that are the same as or substantially similar to those used by the retail merchant.
(g) The presumption under subsection (f) may be rebutted by demonstrating that the affiliate'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.
(h) 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, or otherwise, 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 by all residents with this type of an agreement with the retail merchant are greater than ten thousand dollars ($10,000) during the preceding twelve (12) months.
(i) The presumption under subsection (h) 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. This proof may consist of
sworn written statements that:
(1) are from all the Indiana residents with whom the retail
merchant has an agreement described in subsection (h);
(2) are provided and obtained in good faith; and
(3) state that the Indiana residents did not engage in any
solicitation in Indiana on behalf of the retail merchant during
the preceding twelve (12) months.
(j) For purposes of this section, "affiliate" means any:
(1) person that is a member of the same controlled group of
corporations (as defined in 26 U.S.C. 1563(a)) as the retail
merchant; or
(2) 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)).
(1) the agreement of the parties to the transaction was entered into after June 30, 2013;
(2) payment for the property furnished in the transaction is made after June 30, 2013; or
(3) delivery to the purchaser of the property furnished in the transaction occurs after June 30, 2013.
However, a transaction shall be considered as having occurred before July 1, 2013, to the extent that the agreement of the parties to the transaction was entered into before July 1, 2013, and payment for the property furnished in the transaction is made before July 1, 2013, notwithstanding the delivery of the property after June 30, 2013.
(b) This SECTION expires January 1, 2015.
