October 31, 2013, Introduced by Senators ANANICH and WHITMER and referred to the Committee on Economic Development.
A bill to amend 1933 PA 167, entitled
"General sales tax act,"
(MCL 205.51 to 205.78) by adding section 3a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3a. (1) Subject to subsection (2), a person is presumed
to be engaged in the business of making sales at retail in this
state if any of the following conditions are satisfied:
(a) Any other person, other than a common carrier acting in
its capacity as a common carrier, that has substantial nexus with
this state does any of the following:
(i) Sells a similar line of products as the person and does so
under the same or a similar business name.
(ii) Maintains an office, distribution facility, warehouse,
storage place, or similar place of business in this state to
facilitate the delivery of property or services sold by the person
to the person's customers.
(iii) Uses trademarks, service marks, or trade names in this
state that are the same or substantially similar to those used by
(iv) Delivers, installs, assembles, or performs maintenance
services for the person's customers within this state.
(v) Facilitates the person's delivery of property to customers
in this state by allowing the person's customers to pick up
property sold by the person at an office, distribution facility,
warehouse, storage place, or similar place of business maintained
by the person in this state.
(vi) Conducts any other activities in this state that are
significantly associated with the person's ability to establish and
maintain a market in this state for the person's sales.
(b) Any affiliated person has substantial nexus with this
(2) The presumptions in subsection (1) may be rebutted by
demonstrating that the other person's or affiliated person's
activities in this state are not significantly associated with the
person's ability to establish or maintain a market in this state
for the person's sales.
(3) Notwithstanding subsection (1) and except as otherwise
provided in subsection (4), beginning 90 days after the effective
date of the amendatory act that added this section, a person is
presumed to be engaged in the business of making sales at retail in
this state if the person enters into an agreement with 1 or more
other persons under which the other person, for a commission or
other consideration, while within this state directly or indirectly
refers potential customers, whether by a link on an internet
website, an in-person oral presentation, telemarketing, or by any
other means, to the person, if the cumulative gross receipts from
sales by the person to customers in this state who are referred to
the person by all other persons within this state with such an
agreement with the person are more than $10,000.00 during the
immediately preceding 12 months. This subsection shall apply to a
person without regard as to the date the person and the other
person entered into the agreement. As used in this section, "the
immediately preceding 12 months" includes the 12 months that
occurred before the effective date of the amendatory act that added
(4) The presumption in subsection (3) may be rebutted by
submitting proof that the other persons with whom the person has an
agreement did not engage in any activity within this state that was
significantly associated with the person's ability to establish or
maintain the person's market in this state during the immediately
preceding 12 months. Such proof may include, but is not limited to,
sworn written statements from all of the other persons in this
state with whom the person has an agreement stating that they did
not engage in any solicitation in this state on behalf of the
person during the immediately preceding 12 months, if such
statements are provided and obtained in good faith.
(5) Any ruling, agreement, or contract, whether written or
oral, express or implied, between a person and this state's
executive branch or any other state agency or department, stating,
agreeing, or ruling that the person is not required to collect
sales tax in this state despite the presence of a warehouse,
distribution center, or fulfillment center in this state that is
owned or operated by the person or an affiliated person is null and
void unless specifically approved by a majority vote of the house
of representatives and the senate.
(6) If any person sells tangible personal property to this
state, a state department, a state agency, or an agent of this
state, a state department, or state agency, that person and any
affiliated person shall, as a prerequisite for any such sale,
obtain a license as required under section 3 and comply with all
requirements of this act.
(7) As used in this section:
(a) "Affiliated person" means any person that is a member of
the same controlled group of corporations as the seller or is a
member of any other entity that, notwithstanding its form of
organization, bears the same ownership relationship to the seller
as a corporation that is a member of the same controlled group of
(b) "Controlled group of corporations" means that term as
defined in section 1563(a) of the internal revenue code, 26 USC