(a) For the purpose of this Act 2018-539, the following terms shall have the respective meanings ascribed to them:
(1) DEPARTMENT. The Alabama Department of Revenue.
(2) MARKETPLACE FACILITATOR. A person that contracts with marketplace sellers to facilitate for a consideration, regardless of whether deducted as fees from the transaction, the sale of the marketplace seller’s products through a physical or electronic marketplace operated by a person, and engages:
a. Either directly or indirectly, through one or more affiliated persons in any of the following:
1. Transmitting or otherwise communicating the offer or acceptance between the purchaser and marketplace seller;
2. Owning or operating the infrastructure, electronic or physical, or technology that brings purchasers and marketplace sellers together;
3. Providing a virtual currency that purchasers are allowed or required to use to purchase products from the marketplace seller; or
4. Software development or research and development activities related to any of the activities described in paragraph b. if such activities are directly related to a physical or electronic marketplace operated by a person or an affiliated person, and
b. In any of the following activities with respect to the marketplace seller's products:
1. Payment processing services;
2. Fulfillment or storage services;
3. Listing products for sale;
4. Setting prices;
5. Branding sales as those of the marketplace facilitator;
6. Order taking;
7. Advertising or promotion; or
8. Providing customer service or accepting or assisting with returns or exchanges.
(3) MARKETPLACE SELLER. A seller that is not a related party, as prescribed in Section 40-23-190(c), to a marketplace facilitator and that makes sales through any physical or electronic marketplaces operated by a marketplace facilitator.
(4) PERSON. As defined in Section 40-23-1 (a)(1).
(5) PURCHASER. A person who purchases or contracts to purchase tangible personal property as defined in Section 40-12-220.
(6) QUALIFYING AMOUNT. Two hundred and fifty thousand dollars ($250,000) or an amount as otherwise prescribed by the department.
(7) RETAIL SALE. As defined in Section 40-23-1(a)(10), other than sales of motor vehicles as defined in Section 40-12-240.
(8) SELLER. An individual, trust, estate, fiduciary, partnership, limited liability company, limited liability partnership, corporation, or other legal entity.
(9) SIMPLIFIED SELLERS USE TAX. The tax as levied under Section 40-23-193.
(10) STATE. The State of Alabama.
(b) By no later than January 1, 2019, marketplace facilitators must either register with the department to collect and remit simplified sellers use tax on retail sales made through the marketplace facilitator’s marketplace by or on behalf of a marketplace seller that are delivered in Alabama, whether by the marketplace facilitator or another person, or report such retail sales and provide customer notifications pursuant to subsection (m). This subsection shall apply to any marketplace facilitator that has more than the qualifying amount in retail sales in Alabama for the preceding 12 months. Such retail sales shall include those made directly by the marketplace facilitator and shall also include those retail sales made by marketplace sellers through the marketplace facilitator’s marketplace. The collection and reporting requirements of this subsection shall not apply to retail sales other than those made through a marketplace facilitator’s marketplace.
(c) Marketplace facilitators that collect simplified sellers use tax under this section shall report and remit the tax in accordance with the provisions of Section 40-23-193 and shall maintain records of all sales delivered to a location in Alabama, including copies of invoices showing the purchaser, address, purchase amount, and simplified sellers use tax collected. Such records shall be made available for review and inspection upon request by the department.
(d) Marketplace facilitators who properly collect and then remit to the department in a timely manner simplified sellers use tax on sales in accordance with the provisions of this section by or on behalf of marketplace sellers shall be eligible for the discount provided under Section 40-23-194.
(e) The collection and remittance of simplified sellers use tax relieves the marketplace facilitator, the marketplace seller, and the purchaser from any additional state or local sales and use taxes on the transactions for which simplified sellers use tax was collected and remitted.
(f) Marketplace facilitators that collect simplified sellers use tax shall not be subject to audit or review by any Alabama locality for simplified sellers use tax. Sales by marketplace sellers for which simplified sellers use tax has been collected shall not be subject to audit or review by an Alabama locality for simplified sellers use tax. This exclusion shall not preclude an Alabama locality from auditing or reviewing any other sales by a marketplace seller for which sales or use tax would be due.
(g) Marketplace sellers for whom marketplace facilitators collect and remit simplified sellers use tax in accordance with the provisions of this section on all sales made by or on behalf of the marketplace seller that are delivered in Alabama shall be granted the continued participation and amnesty protections provided for eligible sellers under Sections 40-23-198 and 40-23-199.
(h) The marketplace facilitator shall provide the purchaser with a statement or invoice showing that the simplified sellers use tax was collected and shall be remitted on the purchaser’s behalf. The statement shall be in a manner prescribed by the department.
(i) No class action may be brought against a marketplace facilitator in any court of this state on behalf of customers for an overpayment of simplified sellers use tax collected and remitted on sales facilitated by the marketplace facilitator.
(j) Any taxpayer who remits simplified sellers use tax pursuant to this section shall be entitled to refunds or credits to the same extent and in the same manner provided for in Section 40-23-196 for taxes collected and remitted through the Simplified Sellers Use Tax Remittance Program.
(k) Marketplace facilitators shall be subject to the penalty provisions and procedures of Section 40-2A-11 and reporting requirements of Section 40-2-11(7)(b).
(l) The distribution of simplified sellers use tax remitted by marketplace facilitators shall be made in accordance with Sections 40-23-197 and 40-23-197.1.
(m) Effective January 1, 2019, any marketplace facilitator who does not collect and remit sales, use, or simplified sellers use tax on Alabama retail sale transactions of qualifying amounts shall be required to report such retail sales and provide customer notifications, within constitutional limitations, pursuant to Section 40-2-11(7)(b) and rules promulgated thereunder.
(n) The department may adopt, promulgate, and enforce reasonable rules and regulations for the administration and enforcement of this Act 2018-539.
Last modified: May 3, 2021