Louisiana Revised Statutes 47:340.1 – Marketplace facilitators; collection and remittance of state and local sales and use tax
Terms Used In Louisiana Revised Statutes 47:340.1
- Commission: means the Louisiana Sales and Use Tax Commission for Remote Sellers. See Louisiana Revised Statutes 47:339
- Contract: A legal written agreement that becomes binding when signed.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- local: means those parishes, municipalities, special tax districts, political subdivisions, parish governing bodies, and school boards who are authorized under the provisions of the Constitution of Louisiana, the Louisiana Revised Statutes of 1950 and jurisprudence to levy and collect local sales and use taxes. See Louisiana Revised Statutes 47:339
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- person: includes a body of persons, whether incorporated or not. See Louisiana Revised Statutes 1:10
- Personal property: All property that is not real property.
- remote sale: means a sale that is made by a remote seller for delivery into Louisiana. See Louisiana Revised Statutes 47:339
- remote seller: includes "marketplace facilitators" as defined by Louisiana Revised Statutes 47:339
- Subtitle: means and includes all the Chapters in Subtitle II of this Title 47 and any other Title of the Louisiana Revised Statutes of 1950 except the provisions of Chapter 1 of Subtitle IV of Title 47 of the Louisiana Revised Statutes of 1950 and estate taxes for the assessment, collection, administration, and enforcement of taxes, fees, licenses, penalties, and interest due the state of Louisiana which have been delegated to the Department of Revenue. See Louisiana Revised Statutes 47:1501
- taxes: shall mean the sales and use taxes levied by the state of Louisiana under the provisions of Title 47 of the Louisiana Revised Statutes of 1950, and the sales and use taxes levied by local taxing authorities in Louisiana under the provisions of the Constitution of Louisiana, statutory laws authorizing the imposition of such taxes, and local sales and use tax ordinances. See Louisiana Revised Statutes 47:339
A. Definitions. For purposes of this Section, the following words and phrases shall have the following meanings, unless the context clearly indicates otherwise:
(1) “Affiliate” means an entity that owns more than five percent of the other entity or both entities are subject to the control of a common entity that owns more than five percent of each of the other entities.
(2) “Commission” means the Louisiana Sales and Use Tax Commission for Remote Sellers set forth in this Chapter.
(3) “Marketplace” means any physical or electronic platform or forum, owned, operated, or otherwise controlled by the marketplace facilitator through which a marketplace seller may sell or offer for sale tangible personal property or sales of services for delivery into Louisiana.
(4)(a) “Marketplace facilitator” means any person that facilitates a sale for a marketplace seller through a marketplace, owned, operated, or otherwise controlled by the person, by any of the following:
(i) Offering for sale through any means, by a marketplace seller, tangible personal property or sales of services for delivery into Louisiana.
(ii) Collecting payment from the purchaser and transmitting all or part of the payment to the marketplace seller, regardless of whether the person receives compensation or other consideration in exchange for facilitating the sale or providing any other service directly or indirectly through any agreement or arrangement with one or more third parties.
(b) “Marketplace facilitator” shall not include any of the following:
(i) A payment processor that only handles the processing of payments between the marketplace facilitator and the purchaser.
(ii) A platform or forum that provides advertising services, including listing products for sale, so long as the advertising service platform or forum does not also engage directly or indirectly through one or more affiliated persons in the activities described in Item (a)(ii) of this Paragraph.
(iii) A derivatives clearing organization, a designated contract market, foreign board of trade or swap execution facility, registered with the Commodity Futures Trading Commission (CFTC registered platforms), and any clearing members, futures commission merchants, or brokers when using the services of CFTC registered platforms.
(iv) Any person who offers or facilitates the furnishing of sleeping rooms, cottages or cabins by hotels or who offers or facilitates the furnishing of rental cars by rental car companies.
(5) “Marketplace seller” means a person who sells or offers for sale tangible personal property, or sales of services for delivery into Louisiana through a marketplace that is owned, operated, or controlled by a marketplace facilitator.
(6) “Remote sale” means a sale made by a remote seller or a sale facilitated by a marketplace facilitator.
(7) “Remote seller” means a seller who sells for sale at retail, use, consumption, distribution, or for storage to be used for consumption or distribution any taxable tangible personal property, products transferred electronically, or services for delivery within Louisiana, but does not have a physical presence in Louisiana.
(8) “Secretary” means the secretary of the Department of Revenue.
B. Duties of marketplace facilitators. A marketplace facilitator shall be considered the dealer for each remote sale for delivery into Louisiana and transacted on a marketplace on behalf of a marketplace seller. A marketplace facilitator shall be responsible for all obligations imposed on dealers under this Subtitle and shall keep records and information required by the commission to ensure proper collection and remittance of sales and use tax, including but not limited to exemption certificates and information from the marketplace seller that may be used to determine the taxability of remote sales.
C. Calculation of remote sales and criteria.
(1) A marketplace facilitator shall collect and remit state and local sales and use tax on all taxable remote sales for delivery into Louisiana that the marketplace facilitator transacts on its own behalf or facilitates on behalf of a marketplace seller regardless of whether the marketplace seller is a dealer, has registered as a dealer in Louisiana, or otherwise would have been required to collect state and local sales and use tax if the remote sale had not been facilitated by the marketplace facilitator. For purposes of this Subtitle, a marketplace facilitator shall have the same rights and duties as a remote seller.
(2) The requirement of Paragraph (1) of this Subsection shall apply only to a marketplace facilitator that makes or facilitates a remote sale for delivery in Louisiana of tangible personal property, products transferred electronically, or services if, during the previous or current calendar year, the marketplace facilitator’s gross revenue for retail sales delivered into Louisiana exceeded one hundred thousand dollars from sales of tangible personal property, products transferred electronically, or services.
(3) In determining whether the condition established in Paragraph (2) of this Subsection has been met, only remote sales that are retail sales, as defined in La. Rev. Stat. 47:301, shall be considered. However, a marketplace facilitator may voluntarily register for and collect state and local sales and use tax as a dealer regardless of whether the marketplace facilitator meets the condition established in Paragraph (2) of this Subsection.
D. Timing of application and collection.
No later than thirty calendar days after meeting the condition established in Paragraph (C)(2) of this Section, a marketplace facilitator shall submit an application for approval to collect state and local sales and use tax on remote sales for delivery into Louisiana to the commission on a form prescribed by the commission. The commission shall approve or deny the application and shall notify the marketplace facilitator of the approval or denial no later than thirty business days after receiving the complete application. A marketplace facilitator shall commence collection of state and local sales and use tax, once notified of the commission’s approval of the application, no later than sixty days after meeting the condition established in Paragraph (C)(2) of this Section.
E. Administration of requirements to collect and remit state and local sales and use tax.
(1) For remote sales transacted on a marketplace, the marketplace facilitator shall be responsible for the determination of taxability of remote sales for delivery into Louisiana. Except as provided in Paragraph (2) of this Subsection, the marketplace facilitator shall collect and remit to the commission state and local sales and use tax based on the applicable state and local rates and bases.
(2)(a) If a marketplace facilitator fails to collect tax as required by this Subsection due to incorrect or insufficient information provided by the marketplace seller, the marketplace facilitator shall be relieved of liability for failure to collect or remit the tax provided that the relief under this Paragraph shall not exceed five percent of the total sales tax due from sales made or facilitated in this state by the marketplace facilitator. If the marketplace facilitator is relieved of liability under this Paragraph, the marketplace seller shall be liable for any amount of uncollected or unremitted tax due.
(b) No relief authorized by this Paragraph shall be permitted for remote sales made by a marketplace seller who is affiliated with the marketplace facilitator. For purposes of this Section, persons or entities shall be considered affiliated if one entity owns more than five percent of the other entity or both entities are subject to the control of a common entity that owns more than five percent of each of the entities.
(3) The state and local sales and use tax required to be collected by the marketplace facilitator shall be due and payable monthly. For the purpose of ascertaining the amount of tax payable, all marketplace facilitators shall transmit to the commission returns on forms prescribed and prepared by the commission showing the gross sales arising from all transactions during the preceding calendar month, on or before the twentieth day of the month following the month in which this tax is required to be collected. These returns shall show any further information the commission may require to correctly compute and collect the tax levied. At the time of making the return required pursuant to this Paragraph, every marketplace facilitator shall compute and remit to the commission the required tax due for the preceding calendar month, and failure to remit the tax shall cause the tax to become delinquent. In the event the tax becomes delinquent, interest and penalties imposed by this Subtitle shall be an obligation to be assessed, collected, and enforced against the marketplace facilitator in the same manner as if it were a tax due.
(4) As prescribed by regulations of the commission, a marketplace facilitator may either:
(a) Report the sales and use tax collected, as required by Paragraph (C)(1) of this Section, on all taxable remote sales for delivery into Louisiana that the marketplace facilitator facilitates on behalf of a marketplace seller separately from all sales and use tax collected, as required by Paragraph (C)(1) of this Section, on taxable remote sales for delivery into Louisiana that the marketplace facilitator transacts on its own behalf or on behalf of an affiliate, as described in Subparagraph (2)(b) of this Subsection, of the marketplace facilitator using a separate marketplace facilitator form prescribed and prepared by the commission.
(b) Report all of the sales and use tax collected, as required by Paragraph (C)(1) of this Section, on a combined basis and on a form prescribed and prepared by the commission.
(5) The marketplace facilitator shall be the sole person subject to audit for remote sales made by marketplace sellers but facilitated by the marketplace facilitator. Marketplace sellers shall not be subject to audit for remote sales facilitated by the marketplace facilitator except to the extent the marketplace facilitator seeks relief under Paragraph (2) of this Subsection.
(6) Notwithstanding any law to the contrary, a class action shall not be brought or maintained against a marketplace facilitator in the Louisiana Board of Tax Appeals or in any state or federal court by or on behalf of purchasers arising from or related to an overpayment of sales or use tax collected by the marketplace facilitator under this Section, regardless of whether the action is characterized as a tax refund claim, provided the marketplace facilitator did not intentionally collect state and local sales and use tax on remote sales without regard to applicable state and local rates and bases.
F. Notwithstanding any other provision of law to the contrary, nothing in this Section shall prohibit the marketplace facilitator and the marketplace seller from contractually agreeing to have the marketplace seller and its affiliates collect and remit all applicable taxes and fees if the marketplace seller meets all of the following requirements:
(1) The marketplace seller has annual United States gross sales over one billion dollars, including the gross sales of any affiliates, and in the case of franchised entities, including the combined sales of all franchisees of a single franchisor.
(2) The marketplace seller, or its affiliates, is a service supplier as defined by La. Rev. Stat. 33:9109 or is a seller as defined by La. Rev. Stat. 33:9109.1.
(3) The marketplace seller provides evidence to the marketplace facilitator that it is registered as a dealer defined by La. Rev. Stat. 47:301(4) with the state and local collectors as defined by La. Rev. Stat. 47:301(2).
(4) The marketplace seller notifies the commission in a manner prescribed by the commission that the marketplace seller and its affiliates will collect and remit all applicable taxes and fees on its sales through the marketplace and is liable for failure to collect or remit applicable taxes and fees on its sales.
Acts 2020, No. 216, §1, eff. July 1 2020; Acts 2023, No. 15, §1.