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The Florida Statutes

The 2021 Florida Statutes

Title XIV
TAXATION AND FINANCE
Chapter 212
TAX ON SALES, USE, AND OTHER TRANSACTIONS
View Entire Chapter
F.S. 212.05965
1212.05965 Taxation of marketplace sales.
(1) As used in this chapter, the term:
(a) “Marketplace” means any physical place or electronic medium through which tangible personal property is offered for sale.
(b) “Marketplace provider” means a person who facilitates a retail sale by a marketplace seller by listing or advertising for sale by the marketplace seller tangible personal property in a marketplace and who directly, or indirectly through agreements or arrangements with third parties, collects payment from the customer and transmits all or part of the payment to the marketplace seller, regardless of whether the marketplace provider receives compensation or other consideration in exchange for its services.
1. The term does not include a person who solely provides travel agency services. As used in this subparagraph, the term “travel agency services” means arranging, booking, or otherwise facilitating for a commission, fee, or other consideration vacation or travel packages, rental cars, or other travel reservations; tickets for domestic or foreign travel by air, rail, ship, bus, or other mode of transportation; or hotel or other lodging accommodations.
2. The term does not include a person who is a delivery network company unless the delivery network company is a registered dealer for purposes of this chapter and the delivery network company notifies all local merchants that sell through the delivery network company’s website or mobile application that the delivery network company is subject to the requirements of a marketplace provider under this section. As used in this subparagraph, the term:
a. “Delivery network company” means a person who maintains a website or mobile application used to facilitate delivery services, the sale of local products, or both.
b. “Delivery network courier” means a person who provides delivery services through a delivery network company website or mobile application using a personal means of transportation, such as a motor vehicle as defined in s. 320.01(1), bicycle, scooter, or other similar means of transportation; using public transportation; or by walking.
c. “Delivery services” means the pickup and delivery by a delivery network courier of one or more local products from a local merchant to a customer, which may include the selection, collection, and purchase of the local product in connection with the delivery. The term does not include any delivery requiring more than 75 miles of travel from the local merchant to the customer.
d. “Local merchant” means a kitchen, a restaurant, or a third-party merchant, including a grocery store, retail store, convenience store, or business of another type, which is not under common ownership or control of the delivery network company.
e. “Local product” means any tangible personal property, including food but excluding freight, mail, or a package to which postage has been affixed.
3. The term does not include a payment processor business that processes payment transactions from various channels, such as charge cards, credit cards, or debit cards, and whose sole activity with respect to marketplace sales is to process payment transactions between two or more parties.
(c) “Marketplace seller” means a person who has an agreement with a marketplace provider that is a dealer under this chapter and who makes retail sales of tangible personal property through a marketplace owned, operated, or controlled by the marketplace provider.
(2) A marketplace provider that has a physical presence in this state or who is making or facilitating through a marketplace a substantial number of remote sales as defined in s. 212.0596(1) is a dealer for purposes of this chapter.
(3) A marketplace provider that is a dealer under this chapter shall certify to its marketplace sellers that it will collect and remit the tax imposed under this chapter on taxable retail sales made through the marketplace. Such certification may be included in the agreement between the marketplace provider and the marketplace seller.
(4)(a) A marketplace seller may not collect and remit the tax under this chapter on a taxable retail sale when the sale is made through the marketplace and the marketplace provider certifies, as required under subsection (3), that it will collect and remit such tax. A marketplace seller shall exclude such sales made through the marketplace from the marketplace seller’s tax return under s. 212.11.
(b)1. A marketplace seller who has a physical presence in this state shall register and shall collect and remit the tax imposed under this chapter on all taxable retail sales made outside of the marketplace.
2. A marketplace seller who is not described under subparagraph 1. but who makes a substantial number of remote sales as defined in s. 212.0596(1) shall register and shall collect and remit the tax imposed under this chapter on all taxable retail sales made outside of the marketplace. For the purpose of determining whether a marketplace seller made a substantial number of remote sales, the marketplace seller shall consider only those sales made outside of a marketplace.
(5)(a) A marketplace provider that is a dealer under this chapter shall allow the department to examine and audit its books and records pursuant to s. 212.13. For retail sales facilitated through a marketplace, the department may not examine or audit the books and records of marketplace sellers, nor may the department assess marketplace sellers except to the extent that the marketplace provider seeks relief under paragraph (b). The department may examine, audit, and assess a marketplace seller for retail sales made outside of a marketplace under paragraph (4)(b). This paragraph does not provide relief to a marketplace seller who is under audit; has been issued a bill, notice, or demand for payment; or is under an administrative or judicial proceeding before July 1, 2021.
(b) The marketplace provider is relieved of liability for the tax on the retail sale and the marketplace seller or customer is liable for the tax imposed under this chapter if the marketplace provider demonstrates to the department’s satisfaction that the marketplace provider made a reasonable effort to obtain accurate information related to the retail sales facilitated through the marketplace from the marketplace seller, but that the failure to collect and remit the correct amount of tax imposed under this chapter was due to the provision of incorrect or incomplete information to the marketplace provider by the marketplace seller. This paragraph does not apply to a retail sale for which the marketplace provider is the seller if the marketplace provider and the marketplace seller are related parties or if transactions between a marketplace seller and marketplace buyer are not conducted at arm’s length.
(6) For purposes of registration pursuant to s. 212.18, a marketplace is deemed a separate place of business.
(7) A marketplace provider and a marketplace seller may agree by contract or otherwise that if a marketplace provider pays the tax imposed under this chapter on a retail sale facilitated through a marketplace for a marketplace seller as a result of an audit or otherwise, the marketplace provider has the right to recover such tax and any associated interest and penalties from the marketplace seller.
(8) This section may not be construed to authorize the state to collect sales tax from both the marketplace provider and the marketplace seller on the same retail sale.
(9) Chapter 213 applies to the administration of this section to the extent that chapter does not conflict with this section.
History.ss. 6, 7, ch. 2021-2.
1Note.

A. Section 24, ch. 2021-2, provides that “[t]his act first applies to remote sales made or facilitated on or after July 1, 2021, by a person who made or facilitated a substantial number of remote sales in calendar year 2020. A marketplace seller shall consider only those sales made outside of a marketplace to determine whether it made a substantial number of remote sales in calendar year 2020.”

B. Section 26, ch. 2021-2, provides that:

“(1) The Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules pursuant to s. 120.54(4), Florida Statutes, for the purpose of administering this act.

“(2) Notwithstanding any other law, emergency rules adopted pursuant to subsection (1) are effective for 6 months after adoption and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules.

“(3) This section shall take effect upon this act becoming a law and expires July 1, 2023.”

C. Section 7, ch. 2021-2, added subsections (10) and (11), effective April 1, 2022, to read:

(10) Notwithstanding any other law, the marketplace provider is also responsible for collecting and remitting any prepaid wireless E911 fee under s. 365.172, waste tire fee under s. 403.718, and lead-acid battery fee under s. 403.7185 at the time of sale for taxable retail sales made through its marketplace.

(11) Notwithstanding paragraph (4)(a), the marketplace provider and the marketplace seller may contractually agree to have the marketplace seller collect and remit all applicable taxes and fees if the marketplace seller:

(a) Has annual United States gross sales of more than $1 billion, including the gross sales of any related entities, and in the case of franchised entities, including the combined sales of all franchisees of a single franchisor;

(b) Provides evidence to the marketplace provider that it is registered under s. 212.18; and

(c) Notifies the department in a manner prescribed by the department that the marketplace seller will collect and remit all applicable taxes and fees on its sales through the marketplace and is liable for failure to collect or remit applicable taxes and fees on its sales.