October 31, 2013, Introduced by Senators ANANICH and WHITMER and referred to the Committee on Economic Development.
A bill to amend 1937 PA 94, entitled
"Use tax act,"
(MCL 205.91 to 205.111) by adding section 3g.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3g. (1) Subject to subsection (2), a seller is presumed
to be required to collect and remit the tax under this act 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 seller 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 seller
to the seller's customers.
(iii) Uses trademarks, service marks, or trade names in this
state that are the same or substantially similar to those used by
the seller.
(iv) Delivers, installs, assembles, or performs maintenance
services for the seller's customers within this state.
(v) Facilitates the seller's delivery of property to customers
in this state by allowing the seller's customers to pick up
property sold by the seller at an office, distribution facility,
warehouse, storage place, or similar place of business maintained
by the seller in this state.
(vi) Conducts any other activities in this state that are
significantly associated with the seller's ability to establish and
maintain a market in this state for the seller's sales.
(b) Any affiliated person has substantial nexus with this
state.
(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
seller's ability to establish or maintain a market in this state
for the seller'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 seller is
presumed to be required to collect and remit the tax under this act
if the seller enters into an agreement with 1 or more persons under
which the 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
seller, if the cumulative gross receipts from sales by the seller
to customers in this state who are referred to the seller by all
persons within this state with such an agreement with the seller
are more than $10,000.00 during the immediately preceding 12
months. This subsection shall apply to a seller without regard as
to the date the seller 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 this section.
(4) The presumption in subsection (3) may be rebutted by
submitting proof that the persons with whom the seller has an
agreement did not engage in any activity within this state that was
significantly associated with the seller's ability to establish or
maintain the seller'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 persons in this state with
whom the seller has an agreement stating that they did not engage
in any solicitation in this state on behalf of the seller 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 seller and this state's
executive branch or any other state agency or department, stating,
agreeing, or ruling that the seller is not required to collect and
remit the tax under this act despite the presence of a warehouse,
distribution center, or fulfillment center in this state that is
owned or operated by the seller 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,
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
corporations.
(b) "Controlled group of corporations" means that term as
defined in section 1563(a) of the internal revenue code, 26 USC
1563.