§ 34 — Remote retailers and marketplace facilitators

[Text of section applicable as provided by 2019, 41, Sec. 106.]

Section 34. (a) A remote retailer shall be subject to the registration, collection and remittance requirements of this chapter and chapters 62C and 64I as a vendor if its sales within the commonwealth in the prior taxable year or the current taxable year exceed $100,000.

(b) In the case of a remote marketplace facilitator, sales within the commonwealth shall include both the remote marketplace facilitator's direct sales and those sales facilitated on behalf of marketplace sellers. A remote marketplace facilitator whose sales within the commonwealth in the prior taxable year or the current taxable year exceed $100,000 shall report all taxable sales made through such marketplace and collect and remit tax on all such sales, whether such sales are direct sales by the marketplace facilitator or sales facilitated for a marketplace seller.

(c) In the case of a marketplace facilitator that is not a remote marketplace facilitator, sales within the commonwealth shall include both the marketplace facilitator's direct sales and those sales facilitated on behalf of marketplace sellers. A marketplace facilitator that is not a remote marketplace facilitator and whose sales within the commonwealth in the prior taxable year or the current taxable year exceed $100,000 shall report all taxable sales made through such marketplace and collect and remit tax on all such sales, whether such sales are direct sales by the marketplace facilitator or sales facilitated for a marketplace seller.

(d) If a marketplace facilitator reports, collects and remits tax on sales made by the marketplace facilitator on behalf of a remote marketplace seller, such sales shall not be counted as a part of the remote marketplace seller's sales within the commonwealth and the remote marketplace seller shall not be liable to report those sales.

(e) The commissioner shall issue regulations and other guidance to further explain the sales and use tax rules that pertain to remote retailers, including remote marketplace facilitators, and marketplace facilitators that are not remote marketplace facilitators. Such regulations and guidance shall include rules that further explain the requirements of this chapter and said chapters 62C and 64I as they pertain to marketplace sellers and marketplace facilitators, including rules that explain the rights and responsibilities of such sellers and facilitators with respect to each other. Such regulations and guidance may also include rules to aggregate the sales of related remote retailers with respect to the $100,000 threshold described in subsection (a).

(f) A marketplace facilitator may request and may be granted a waiver from the requirements of this section, at the discretion of the commissioner, 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 marketplace facilitator collects the applicable tax registration numbers of marketplace sellers transacting on the marketplace platform; provided, that said registration numbers shall be kept in the books and records of the marketplace facilitator and may be examined by the commissioner upon request;

(3) the marketplace seller is required to register to collect sales tax; and

(4) any other requirement established by the commissioner by regulation.

(g) For telecommunications services that are taxable under this chapter and chapter 64I, the commissioner may, at the commissioner's discretion, grant a waiver to allow a marketplace seller to collect and directly remit the applicable taxes on sales of such services to the department.

(h) If a waiver is granted pursuant to subsection (f) or (g):

(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 paragraph (1), the marketplace facilitator shall not be required to collect and remit any applicable taxes or fees;

(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; and

(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.

(i) 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.