20 282cr1frmdraftnov20
20 282cr1frmdraftnov20
20 282cr1frmdraftnov20
PREPROPOSAL STATEMENT
OF INQUIRY
CR-101 (October 2017)
(Implements RCW 34.05.310)
Do NOT use for expedited rule making
Agency: Department of Revenue
Subject of possible rule making: Substitute Senate Bill 5581 (2019) - Remote Sellers, Referrers, and Marketplace
Facilitators
Statutes authorizing the agency to adopt rules on this subject: RCW 82.32.300, 82.01.060(2), and 82.08.0531.
Reasons why rules on this subject may be needed and what they might accomplish: The Department of Revenue
intends to provide guidance to taxpayers regarding Substitute Senate Bill 5581, which was enacted by the Legislature during
the Regular Session of 2019.
Identify other federal and state agencies that regulate this subject and the process coordinating the rule with these
agencies: None
Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before
publication by contacting:
(If necessary)
Name: Darius Massoudi Name:
Address: P.O. Box 47453, Olympia, WA 98504-7453 Address:
Phone: 360-534-1572 Phone:
Fax: 360-534-1606 Fax:
TTY: 800-833-6384 TTY:
Email: [email protected] Email:
Web site: dor.wa.gov Web site:
Other: N/A Other:
Additional comments:
Written comments may be submitted by mail or email and should be directed to Darius Massoudi using one of the contact
methods above. Written and oral comments will be accepted at the Public Meeting.
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Date: November 3, 2020 Signature:
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This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
NEW SECTION
[ 1 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
[ 2 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
[ 3 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
ty--listing products for sale). A person does not need to process pay-
ments to meet the definition of a marketplace facilitator, as any one
of the specified activities listed in subsection (104)(a)(iii) of this
rule is sufficient.
Example 3. Taste of Andromeda (TOA) is a business that contracts
with various restaurants to allow them to prepare and sell food (all
of which is subject to retail sales tax) in the business's food court.
Customers order and collect their food from the restaurants, but TOA,
not the third-party restaurants, completes the sale and accepts pay-
ment for the prepared food. TOA gives the third-party restaurants the
remaining proceeds of the sale net of the amount TOA retains for it-
self. TOA meets the definition of a marketplace facilitator, as it
meets all three parts of the marketplace facilitator definition (fa-
cilitates sales for consideration, transmits offer or acceptance, and
engages in a specified activity--processing payments).
Example 4. First Alpha Centauri Technology (FACT) performs the
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payment processing for an online marketplace. Neither FACT nor any of
FACT's affiliates performs any other function related to the operation
or sale of products on the marketplace. FACT does not meet the defini-
tion of a marketplace facilitator, as it only satisfies one of the
three parts of the marketplace facilitator definition, in this case
engaging in a specified activity. FACT does not meet the other two
parts of the marketplace facilitator definition (it is neither facili-
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tating sales for consideration, nor is it transmitting offer or ac-
ceptance).
Example 5. Neptunian Connection (NC) is a business that lists
products sold by third parties on its website. NC does not facilitate
the sale of these products for consideration. When purchasers want to
purchase a listed product, NC transfers the purchaser to the third-
party seller's website to complete the sale. NC has no involvement in
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the sales transaction. NC does not meet the definition of a market-
place facilitator (NC neither gets paid to facilitate a sale for con-
sideration on a marketplace, nor transmits offer or acceptance).
Example 6. Antares Travel Solutions (ATS) owns and operates a
marketplace for used teleporters and gets paid for facilitating sales
of used teleporters by third-party sellers. ATS facilitates sales for
consideration, but neither transmits offers or acceptances, nor engag-
es in a specified activity. However, ATS owns 19% of the capital stock
of the Scorpius-Centaurus Association (SCA). SCA owns 11% of the capi-
tal stock of Mahtab Affiliated Technologies (MAT), which transmits the
offers and acceptances on the ATS marketplace, and processes payments
for the ATS marketplace. Since ATS has an indirect ownership interest
in MAT, MAT is an affiliated person with respect to ATS. As a result,
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ATS meets all three parts of the definition of a marketplace facilita-
tor (facilitates sales for consideration, transmits offers or accept-
ances indirectly through an affiliated person, and engages in a speci-
fied activity indirectly through affiliated person--payment processing
services).
Part III – Tax Collection Responsibilities
(301) What must be collected and remitted?
(a) Requirement to collect and remit sales or use tax. A market-
place facilitator must collect and remit sales or use tax on all taxa-
ble retail sales sourced to Washington on behalf of any marketplace
seller making retail sales through the marketplace facilitator's mar-
ketplace.
[ 4 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
(i) Determining the correct combined state and local sale of use
tax rate. The marketplace facilitator must determine the correct com-
bined state and local sales or use tax rate to charge for sales
sourced to Washington. The state tax rate is established in RCW
82.08.020. For information on determining the applicable local tax
rate, see WAC 458-20-145.
(ii) Relief for marketplace seller. Except as otherwise provided
in subsection (401)(b) of this rule, a marketplace seller is not re-
quired to collect or remit sales or use tax on taxable retail sales
through a marketplace facilitator's marketplace if the marketplace
seller has obtained documentation from the marketplace facilitator in-
dicating that the marketplace facilitator is registered with the de-
partment and will collect all applicable taxes due under chapters
82.08 and 82.12 RCW on all taxable retail sales made on behalf of the
marketplace seller through the facilitator's marketplace. The required
documentation must be in writing, but may be transmitted electronical-
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ly. The required documentation may be included in agreements between
the marketplace seller and the marketplace facilitator or in informa-
tion distributed or accessible to marketplace sellers through the fa-
cilitator's marketplace. Marketplace sellers should retain this docu-
mentation with their own tax records. The documentation must clearly
state the marketplace facilitator's intention to collect sales or use
tax on behalf of the marketplace seller, along with the department-is-
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sued tax account ID number that the marketplace facilitator will use
to report and remit the sales or use tax collected on behalf of the
marketplace seller. If the marketplace seller does not obtain documen-
tation from the marketplace facilitator, then it may be held liable
for any uncollected sales tax on sales through that facilitator's mar-
ketplace.
(b) Requirement to collect and remit other taxes and fees.
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(i)(A) Taxes and fees authorized in chapter 82.08 RCW. In addi-
tion to collecting and remitting sales or use tax, a marketplace fa-
cilitator must also collect and remit all other applicable taxes and
fees authorized in chapter 82.08 RCW on all retail sales sourced to
Washington on behalf of any marketplace seller making retail sales
through the marketplace facilitator's marketplace.
(B) Taxes and fees in chapter 82.08 RCW. Applicable taxes and
fees in chapter 82.08 RCW may include, but are not limited to:
(I) Car rental tax (see RCW 82.08.020(2)).
(II) Motor vehicle sales tax (see RCW 82.08.020(2)).
(III) Spirits taxes (see RCW 82.08.150).
(ii)(A) Other applicable taxes and fees. Beginning January 1,
2020, a marketplace facilitator must also collect and remit all other
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applicable taxes and fees on all retail sales sourced to Washington on
behalf of any marketplace seller making retail sales through the mar-
ketplace facilitator's marketplace. For the purposes of this subsec-
tion, "taxes and fees" means any monetary exaction, regardless of its
label, imposed on a buyer and that the seller is required to collect
and pay over to the department.
(B) Examples of taxes and fees. Other applicable taxes and fees
may include, but are not limited to:
(I) Lodging taxes and charges (see WAC 458-20-166).
(II) Solid fuel burning device fee (see RCW 70A.15.3620).
(III) Tire fees (see RCW 70A.205.405, 46.37.427, and WAC
458-20-272).
(302) Exemptions.
[ 5 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
[ 6 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
itator from properly determining the correct tax amount owed. A mar-
ketplace facilitator does not qualify for the liability relief under
this subsection when a marketplace seller provided information that
was correct, but was incomplete or insufficient to make the proper
taxability determination.
(b) Marketplace seller liability. Where the marketplace facilita-
tor is relieved of liability under (a) of this subsection, the market-
place seller is solely liable for the amount of uncollected tax due.
(402) Percentage of tax due.
(a) Conditions for relief. Subject to the limits detailed below
in (b) and (c) of this subsection, and subsection (403) of this rule,
a marketplace facilitator is relieved of liability for the failure to
collect sales and use tax on taxable retail sales to the extent that
the marketplace facilitator can show to the department's satisfaction
that:
(i) The taxable retail sale was made through the marketplace fa-
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cilitator's marketplace;
(ii) The taxable retail sale was made solely as the agent of a
marketplace seller, and the marketplace facilitator and the market-
place seller are not affiliated persons; and
(iii) The failure to collect sales or use tax was not due to an
error in sourcing the sale under RCW 82.32.730.
(b) Limitations on relief. Liability relief for a marketplace fa-
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cilitator under (a) of this subsection is limited as follows:
(i) For calendar year 2018, the liability relief may not exceed
ten percent of the total tax due under chapters 82.08 and 82.12 RCW on
taxable retail sales by the marketplace facilitator and collected on
behalf of a marketplace seller and sourced to this state under RCW
82.32.730 during the same calendar year.
(ii) For calendar year 2019, the liability relief may not exceed
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five percent of the total tax due under chapters 82.08 and 82.12 RCW
on taxable retail sales by the marketplace facilitator and collected
on behalf of a marketplace seller and sourced to this state under RCW
82.32.730 during the same calendar year.
(c) Situations when relief is not available. The liability relief
identified in this subsection is not available for retail sales that a
marketplace facilitator determined were subject to sales or use tax
but chose not to collect the tax, or where the marketplace facilitator
otherwise acts fraudulently to avoid collecting tax. Liability relief
is also not available when the failure to collect sales or use tax was
contrary to specific written instructions provided by the department.
(d) Marketplace seller relief. Where the marketplace facilitator
is relieved of liability under (a) of this subsection, the marketplace
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seller is also relieved of liability for the amount of uncollected tax
due.
(e) How to claim the relief. The liability relief provided in (a)
of this subsection may be claimed when the department determines that
additional sales or use tax is due for a particular calendar year on
sales meeting the criteria of (a)(i) through (iii) of this subsection.
Upon such a determination by the department, the marketplace facilita-
tor may claim relief from liability on such additional tax, subject to
the limitations in (b) and (c) of this subsection, and subsection
(403) of this rule. Any amounts remaining after application of these
limitations are due in full by the taxpayer and subject to any appli-
cable penalty and interest as provided in chapter 82.32 RCW.
[ 7 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
[ 8 ] OTS-2750.1
This draft is provided for discussion purposes only to determine what topics a possible proposed rule might address.
This document draft is under no circumstances to be used to determine a tax liability and/or eligibility for tax exemptions.
[ 9 ] OTS-2750.1