Amendment #76 to H3800

Marketplace Sales Tax

Mr. Puppolo of Springfield moves to amend the bill in section 15 by adding the following:

“(d) A marketplace facilitator, at its discretion, may request and will be granted a waiver from the requirements of this section if the following requirements are met:

(1) The marketplace facilitator submits a waiver application to the Commissioner substantiating that, based on the facts and circumstances of the marketplace transaction, the marketplace facilitator can presume in good faith that the applicable taxes are collected and remitted by a marketplace seller required to be registered to collect tax under this section.

(2) The Commissioner approves the marketplace facilitator’s application;

(3) The marketplace facilitator collects the applicable tax registration numbers of marketplace seller(s) transacting on the marketplace platform.  These registration numbers will be kept in the books and records of the marketplace facilitator and may be examined by the Commissioner upon audit; and

(4) The marketplace seller is required to register to collect sales tax.

(e) If such waiver is granted:

(1) The tax levied under this section shall be (i) collected directly by the marketplace seller or by the marketplace facilitator on behalf of the marketplace seller and (ii) remitted by the marketplace seller(s);

(2) Except as otherwise provided in section (e)(1), the marketplace facilitator will not be required to collect and remit any applicable taxes or fees; and

(3) The marketplace facilitator is relieved of liability for remittance of tax on the applicable sales made through the marketplace platform on behalf of those marketplace sellers

(4) A marketplace seller shall be subject to audit by the Commissioner with respect to all retail sales for which it is required to remit tax. Where the Commissioner audits the marketplace seller, the Commissioner is prohibited from auditing the marketplace facilitator for the same retail sales.

(f) A marketplace facilitator shall be relieved from liability, including penalties and interest, for the incorrect collection or remittance of sales and use tax on transactions it facilitates or for which it is the seller if the error is due to reasonable reliance on (i) an invalid exemption certificate provided by the marketplace seller or the purchaser; (ii) incorrect information provided by the Commonwealth; or (iii) incorrect information provided by the marketplace seller or purchaser regarding the tax classification or proper sourcing of an item or transaction, provided that the marketplace facilitator can demonstrate it made a reasonable effort to obtain accurate information from the marketplace seller or purchaser. No class action shall be brought against a marketplace facilitator in any court on behalf of customers arising from or in any way related to an overpayment of sales and use tax collected on sales facilitated by the marketplace facilitator, regardless of whether such claim is characterized as a tax refund claim. I. No class action shall be brought against a marketplace facilitator in any court of the Commonwealth on behalf of customers arising from or in any way related to an overpayment of sales and use tax collected on sales facilitated by the marketplace facilitator, regardless of whether such claim is characterized as a tax refund claim. Nothing in this subsection shall affect a customer's right to seek a refund on an individual basis”.