[Congressional Record Volume 164, Number 125 (Wednesday, July 25, 2018)]
[Senate]
[Pages S5376-S5377]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3542. Mr. TESTER (for himself, Mrs. Shaheen, Ms. Hassan, and Mr.
Merkley) submitted an amendment intended to be proposed to amendment SA
3399 proposed by Mr. Shelby to the bill H.R. 6147, making
appropriations for the Department of the Interior, environment, and
related agencies for the fiscal year ending September 30, 2019, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. STOP TAXING OUR POTENTIAL ACT.
(a) Short Title.--This section may be cited as the ``Stop
Taxing Our Potential Act of 2018''.
(b) Minimum Jurisdictional Standards for State and Local
Sales and Use Tax Collection.--
(1) In general.--A State may not--
(A) impose an obligation on a person for--
(i) the collection of a sales tax, use tax, or any similar
tax; or
(ii) the reporting of any information with respect to a tax
described in clause (i);
(B) assess any tax described in subparagraph (A)(i) on a
person; or
(C) treat a person as doing business in a State for
purposes of any tax described in subparagraph (A)(i),
unless such person had a physical presence in the State
during the calendar quarter with respect to which such
obligation or assessment is imposed.
(2) Requirements for physical presence.--
(A) In general.--For purposes of paragraph (1), a person
has a physical presence in a State only if such person's
business activities in the State include any of the following
during the calendar quarter:
(i) Maintains its commercial or legal domicile in the
State.
(ii) Owns, holds a leasehold interest in, or maintains real
property such as a retail store, warehouse, distribution
center, manufacturing operation, or assembly facility in the
State.
(iii) Leases or owns tangible personal property (other than
computer software) of more than de minimis value in the
State.
(iv) Has one or more employees, agents, or independent
contractors present in the State who provide on-site design,
installation, or repair services on behalf of the remote
seller.
(v) Has one or more employees, exclusive agents or
exclusive independent contractors present in the State who
engage in activities that substantially assist the person to
establish or maintain a market in the State.
(vi) Maintains an office in the State at which it regularly
employs three or more employees for any purpose.
(B) De minimis physical presence.--For purposes of this
subsection, the term ``physical presence'' shall not
include--
(i) entering into an agreement under which a person, for a
commission or other consideration, directly or indirectly
refers potential
[[Page S5377]]
purchasers to a person outside the State, whether by an
Internet-based link or platform, Internet Web site or
otherwise;
(ii) any presence in a State, as described in subparagraph
(A), for less than 15 days in a taxable year (or a greater
number of days if provided by State law);
(iii) product placement, setup, or other services offered
in connection with delivery of products by an interstate or
in-State carrier or other service provider;
(iv) Internet advertising services provided by in-State
residents which are not exclusively directed towards, or do
not solicit exclusively, in-State customers;
(v) ownership by a person outside the State of an interest
in a limited liability company or similar entity organized or
with a physical presence in the State;
(vi) the furnishing of information to customers or
affiliates in such State, or the coverage of events or other
gathering of information in such State by such person, or his
representative, which information is used or disseminated
from a point outside the State; or
(vii) business activities directly relating to such
person's potential or actual purchase of goods or services
within the State if the final decision to purchase is made
outside the State.
(3) Protection of non-sellers.--A State may not impose or
assess a sales, use, or similar tax on a person or impose an
obligation to collect or report any information with respect
thereto, unless such person is either a purchaser or a seller
having a physical presence in the State.
(c) Dispute Resolution.--The district courts of the United
States shall have original jurisdiction over civil actions to
enforce the provisions of this section, including authority
to issue declaratory judgments pursuant to section 2201 of
title 28, United States Code, and, notwithstanding the
provisions of section 1341 of such title, injunctive relief,
as necessary to carry out any provision of this section.
(d) Definitions and Effective Date.--
(1) Definitions.--For purposes of this section:
(A) Marketplace provider.--The term ``marketplace
provider'' includes any person, other than a seller, who
facilitates a sale. For purposes of this subsection, a person
facilitates a sale when the person both--
(i) lists or advertises products for sale in any forum,
including a catalog or Internet Web site; and
(ii) either directly or indirectly through agreements or
arrangements with third parties, collects gross receipts from
the customer and transmits those receipts to the marketplace
seller, whether or not such person deducts any fees or other
amounts from those receipts prior to transferring them to the
marketplace seller.
(B) Marketplace seller.--The term ``marketplace seller''
means a person that has any sales facilitated by a
marketplace provider.
(C) Person.--The term ``person'' has the meaning given such
term by section 1 of title 1, United States Code. Each
corporation that is a member of a group of affiliated
corporations, whether unitary or not, is itself a separate
person.
(D) Product.--The term ``product'' includes any good or
service, tangible or intangible.
(E) Referrer.--The term ``referrer'' shall mean every
person who--
(i) contracts or otherwise agrees with a seller to list
multiple products for sale and the sales prices thereof in
any forum, including a catalog or Internet Web site;
(ii) receives a fee, commission, or other consideration
from a seller for the listing;
(iii) transfers, via telephone, Internet link, or
otherwise, a customer to the seller or the seller's Web site
to complete a purchase; and
(iv) does not collect receipts from the customer for the
transaction.
(F) Seller.--The term ``seller'' does not include--
(i) any marketplace provider (except with respect to the
sale through the marketplace of products owned by the
marketplace provider);
(ii) any referrer;
(iii) any carrier, in which the seller does not have an
ownership interest, providing transportation or delivery
services with respect to tangible personal property; and
(iv) any credit card issuer, transaction or billing
processor, or other financial intermediary.
(G) Similar tax.--The term ``similar tax'' means a tax that
is imposed with respect to the sale or use of a product,
regardless of whether the tax is imposed on the person making
the sale or the purchaser, with the right or obligation of
the person making the sale to obtain reimbursement for the
amount of the tax from the purchaser at the time of the
transaction.
(H) State.--The term ``State'' means the several States,
the District of Columbia, the Commonwealth of Puerto Rico,
Guam, American Samoa, the United States Virgin Islands, the
Commonwealth of the Northern Mariana Islands, and any other
territory or possession of the United States and includes any
political subdivision thereof.
(2) Effective date.--This section shall apply with respect
to calendar quarters beginning on or after January 1, 2019.
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