59-12-107 - Collection, remittance, and payment of tax by sellers or other persons -- Returns -- Reports -- Direct payment by purchaser of vehicle -- Other liability for collection -- Rulemaking autho
59-12-107. Collection, remittance, and payment of tax by sellers or other persons --Returns -- Reports -- Direct payment by purchaser of vehicle -- Other liability for collection-- Rulemaking authority -- Credits -- Treatment of bad debt -- Penalties.
(1) (a) Except as provided in Subsection (1)(d) or Section 59-12-107.1 or 59-12-123 andsubject to Subsection (1)(e), each seller shall pay or collect and remit the sales and use taxesimposed by this chapter if within this state the seller:
(i) has or utilizes:
(A) an office;
(B) a distribution house;
(C) a sales house;
(D) a warehouse;
(E) a service enterprise; or
(F) a place of business similar to Subsections (1)(a)(i)(A) through (E);
(ii) maintains a stock of goods;
(iii) regularly solicits orders, regardless of whether or not the orders are accepted in thestate, unless the seller's only activity in the state is:
(A) advertising; or
(B) solicitation by:
(I) direct mail;
(II) electronic mail;
(III) the Internet;
(IV) telecommunications service; or
(V) a means similar to Subsection (1)(a)(iii)(A) or (B);
(iv) regularly engages in the delivery of property in the state other than by:
(A) common carrier; or
(B) United States mail; or
(v) regularly engages in an activity directly related to the leasing or servicing of propertylocated within the state.
(b) A seller that does not meet one or more of the criteria provided for in Subsection(1)(a):
(i) except as provided in Subsection (1)(b)(ii), may voluntarily:
(A) collect a tax on a transaction described in Subsection 59-12-103(1); and
(B) remit the tax to the commission as provided in this part; or
(ii) notwithstanding Subsection (1)(b)(i), shall collect a tax on a transaction described inSubsection 59-12-103(1) if Section 59-12-103.1 requires the seller to collect the tax.
(c) The collection and remittance of a tax under this chapter by a seller that is registeredunder the agreement may not be used as a factor in determining whether that seller is required bySubsection (1)(a) to:
(i) pay a tax, fee, or charge under:
(A) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act;
(B) Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act;
(C) Section 19-6-714;
(D) Section 19-6-805;
(E) Section 69-2-5;
(F) Section 69-2-5.5;
(G) Section 69-2-5.6; or
(H) this title; or
(ii) collect and remit a tax, fee, or charge under:
(A) Title 10, Chapter 1, Part 3, Municipal Energy Sales and Use Tax Act;
(B) Title 10, Chapter 1, Part 4, Municipal Telecommunications License Tax Act;
(C) Section 19-6-714;
(D) Section 19-6-805;
(E) Section 69-2-5;
(F) Section 69-2-5.5;
(G) Section 69-2-5.6; or
(H) this title.
(d) A person shall pay a use tax imposed by this chapter on a transaction described inSubsection 59-12-103(1) if:
(i) the seller did not collect a tax imposed by this chapter on the transaction; and
(ii) the person:
(A) stores the tangible personal property or product transferred electronically in the state;
(B) uses the tangible personal property or product transferred electronically in the state;or
(C) consumes the tangible personal property or product transferred electronically in thestate.
(e) The ownership of property that is located at the premises of a printer's facility withwhich the retailer has contracted for printing and that consists of the final printed product,property that becomes a part of the final printed product, or copy from which the printed productis produced, shall not result in the retailer being considered to have or maintain an office,distribution house, sales house, warehouse, service enterprise, or other place of business, or tomaintain a stock of goods, within this state.
(f) (i) As used in this Subsection (1)(f):
(A) "Affiliated group" is as defined in Section 59-7-101, except that "affiliated group"includes a corporation that is qualified to do business but is not otherwise doing business in thisstate.
(B) "Common ownership" is as defined in Section 59-7-101.
(C) "Related seller" means a seller that:
(I) is not required to pay or collect and remit sales and use taxes under Subsection (1)(a)or Section 59-12-103.1;
(II) is:
(Aa) related to a seller that is required to pay or collect and remit sales and use taxesunder Subsection (1)(a) as part of an affiliated group or because of common ownership; or
(Bb) a limited liability company owned by the parent corporation of an affiliated group ifthat parent corporation of the affiliated group is required to pay or collect and remit sales and usetaxes under Subsection (1)(a); and
(III) does not voluntarily collect and remit a tax under Subsection (1)(b)(i).
(ii) A seller is not required to pay or collect and remit sales and use taxes underSubsection (1)(a):
(A) if the seller is a related seller;
(B) if the seller to which the related seller is related does not engage in any of the
following activities on behalf of the related seller:
(I) advertising;
(II) marketing;
(III) sales; or
(IV) other services; and
(C) if the seller to which the related seller is related accepts the return of an item sold bythe related seller, the seller to which the related seller is related accepts the return of that item:
(I) sold by a seller that is not a related seller; and
(II) on the same terms as the return of an item sold by that seller to which the relatedseller is related.
(2) (a) Except as provided in Section 59-12-107.1, a tax under this chapter shall becollected from a purchaser.
(b) A seller may not collect as tax an amount, without regard to fractional parts of onecent, in excess of the tax computed at the rates prescribed by this chapter.
(c) (i) Each seller shall:
(A) give the purchaser a receipt for the tax collected; or
(B) bill the tax as a separate item and declare the name of this state and the seller's salesand use tax license number on the invoice for the sale.
(ii) The receipt or invoice is prima facie evidence that the seller has collected the tax andrelieves the purchaser of the liability for reporting the tax to the commission as a consumer.
(d) A seller is not required to maintain a separate account for the tax collected, but isconsidered to be a person charged with receipt, safekeeping, and transfer of public money.
(e) Taxes collected by a seller pursuant to this chapter shall be held in trust for thebenefit of the state and for payment to the commission in the manner and at the time provided forin this chapter.
(f) If any seller, during any reporting period, collects as a tax an amount in excess of thelawful state and local percentage of total taxable sales allowed under this chapter, the seller shallremit to the commission the full amount of the tax imposed under this chapter, plus any excess.
(g) If the accounting methods regularly employed by the seller in the transaction of theseller's business are such that reports of sales made during a calendar month or quarterly periodwill impose unnecessary hardships, the commission may accept reports at intervals that will, inthe commission's opinion, better suit the convenience of the taxpayer or seller and will notjeopardize collection of the tax.
(3) (a) Except as provided in Subsections (4) through (6) and Section 59-12-108, thesales or use tax imposed by this chapter is due and payable to the commission quarterly on orbefore the last day of the month next succeeding each calendar quarterly period.
(b) (i) Each seller shall, on or before the last day of the month next succeeding eachcalendar quarterly period, file with the commission a return for the preceding quarterly period.
(ii) The seller shall remit with the return under Subsection (3)(b)(i) the amount of the taxrequired under this chapter to be collected or paid for the period covered by the return.
(c) Except as provided in Subsection (4)(c), a return shall contain information and be in aform the commission prescribes by rule.
(d) The sales tax as computed in the return shall be based upon the total nonexempt salesmade during the period, including both cash and charge sales.
(e) The use tax as computed in the return shall be based upon the total amount of
purchases for storage, use, or other consumption in this state made during the period, includingboth by cash and by charge.
(f) (i) Subject to Subsection (3)(f)(ii) and in accordance with Title 63G, Chapter 3, UtahAdministrative Rulemaking Act, the commission may by rule extend the time for making returnsand paying the taxes.
(ii) An extension under Subsection (3)(f)(i) may not be for more than 90 days.
(g) The commission may require returns and payment of the tax to be made for otherthan quarterly periods if the commission considers it necessary in order to ensure the payment ofthe tax imposed by this chapter.
(h) (i) The commission may require a seller that files a simplified electronic return withthe commission to file an additional electronic report with the commission.
(ii) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, thecommission may make rules providing:
(A) the information required to be included in the additional electronic report describedin Subsection (3)(h)(i); and
(B) one or more due dates for filing the additional electronic report described inSubsection (3)(h)(i).
(4) (a) As used in this Subsection (4) and Subsection (5)(b), "remote seller" means aseller that is:
(i) registered under the agreement;
(ii) described in Subsection (1)(b); and
(iii) not a:
(A) model 1 seller;
(B) model 2 seller; or
(C) model 3 seller.
(b) (i) Except as provided in Subsection (4)(b)(ii), a tax a remote seller collects inaccordance with Subsection (1)(b) is due and payable:
(A) to the commission;
(B) annually; and
(C) on or before the last day of the month immediately following the last day of eachcalendar year.
(ii) The commission may require that a tax a remote seller collects in accordance withSubsection (1)(b) be due and payable:
(A) to the commission; and
(B) on the last day of the month immediately following any month in which the selleraccumulates a total of at least $1,000 in agreement sales and use tax.
(c) (i) If a remote seller remits a tax to the commission in accordance with Subsection(4)(b), the remote seller shall file a return:
(A) with the commission;
(B) with respect to the tax;
(C) containing information prescribed by the commission; and
(D) on a form prescribed by the commission.
(ii) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, thecommission shall make rules prescribing:
(A) the information required to be contained in a return described in Subsection (4)(a)(i);
and
(B) the form described in Subsection (4)(c)(i)(D).
(d) A tax a remote seller collects in accordance with this Subsection (4) shall becalculated on the basis of the total amount of taxable transactions under Subsection 59-12-103(1)the remote seller completes, including:
(i) a cash transaction; and
(ii) a charge transaction.
(5) (a) Except as provided in Subsection (5)(b), a tax a seller that files a simplifiedelectronic return collects in accordance with this chapter is due and payable:
(i) monthly on or before the last day of the month immediately following the month forwhich the seller collects a tax under this chapter; and
(ii) for the month for which the seller collects a tax under this chapter.
(b) A tax a remote seller that files a simplified electronic return collects in accordancewith this chapter is due and payable as provided in Subsection (4).
(6) (a) On each vehicle sale made by other than a regular licensed vehicle dealer, thepurchaser shall pay the sales or use tax directly to the commission if the vehicle is subject totitling or registration under the laws of this state.
(b) The commission shall collect the tax described in Subsection (6)(a) when the vehicleis titled or registered.
(7) If any sale of tangible personal property or any other taxable transaction underSubsection 59-12-103(1), is made by a wholesaler to a retailer, the wholesaler is not responsiblefor the collection or payment of the tax imposed on the sale and the retailer is responsible for thecollection or payment of the tax imposed on the sale if:
(a) the retailer represents that the personal property is purchased by the retailer for resale;and
(b) the personal property is not subsequently resold.
(8) If any sale of property or service subject to the tax is made to a person prepaying salesor use tax in accordance with Title 63M, Chapter 5, Resource Development Act, or to acontractor or subcontractor of that person, the person to whom such payment or consideration ispayable is not responsible for the collection or payment of the sales or use tax and the personprepaying the sales or use tax is responsible for the collection or payment of the sales or use taxif the person prepaying the sales or use tax represents that the amount prepaid as sales or use taxhas not been fully credited against sales or use tax due and payable under the rules promulgatedby the commission.
(9) (a) For purposes of this Subsection (9):
(i) Except as provided in Subsection (9)(a)(ii), "bad debt" is as defined in Section 166,Internal Revenue Code.
(ii) Notwithstanding Subsection (9)(a)(i), "bad debt" does not include:
(A) an amount included in the purchase price of tangible personal property, a producttransferred electronically, or a service that is:
(I) not a transaction described in Subsection 59-12-103(1); or
(II) exempt under Section 59-12-104;
(B) a financing charge;
(C) interest;
(D) a tax imposed under this chapter on the purchase price of tangible personal property,
a product transferred electronically, or a service;
(E) an uncollectible amount on tangible personal property or a product transferredelectronically that:
(I) is subject to a tax under this chapter; and
(II) remains in the possession of a seller until the full purchase price is paid;
(F) an expense incurred in attempting to collect any debt; or
(G) an amount that a seller does not collect on repossessed property.
(b) A seller may deduct bad debt from the total amount from which a tax under thischapter is calculated on a return.
(c) A seller may file a refund claim with the commission if:
(i) the amount of bad debt for the time period described in Subsection (9)(e) exceeds theamount of the seller's sales that are subject to a tax under this chapter for that same time period;and
(ii) as provided in Section 59-1-1410.
(d) A bad debt deduction under this section may not include interest.
(e) A bad debt may be deducted under this Subsection (9) on a return for the time periodduring which the bad debt:
(i) is written off as uncollectible in the seller's books and records; and
(ii) would be eligible for a bad debt deduction:
(A) for federal income tax purposes; and
(B) if the seller were required to file a federal income tax return.
(f) If a seller recovers any portion of bad debt for which the seller makes a deduction orclaims a refund under this Subsection (9), the seller shall report and remit a tax under thischapter:
(i) on the portion of the bad debt the seller recovers; and
(ii) on a return filed for the time period for which the portion of the bad debt isrecovered.
(g) For purposes of reporting a recovery of a portion of bad debt under Subsection (9)(f),a seller shall apply amounts received on the bad debt in the following order:
(i) in a proportional amount:
(A) to the purchase price of the tangible personal property, product transferredelectronically, or service; and
(B) to the tax due under this chapter on the tangible personal property, producttransferred electronically, or service; and
(ii) to:
(A) interest charges;
(B) service charges; and
(C) other charges.
(h) A seller's certified service provider may make a deduction or claim a refund for baddebt on behalf of the seller:
(i) in accordance with this Subsection (9); and
(ii) if the certified service provider credits or refunds the entire amount of the bad debtdeduction or refund to the seller.
(i) A seller may allocate bad debt among the states that are members of the agreement ifthe seller's books and records support that allocation.
(10) (a) A seller may not, with intent to evade any tax, fail to timely remit the fullamount of tax required by this chapter.
(b) A violation of this section is punishable as provided in Section 59-1-401.
(c) Each person who fails to pay any tax to the state or any amount of tax required to bepaid to the state, except amounts determined to be due by the commission under Chapter 1, Part14, Assessment, Collections, and Refunds Act, or Section 59-12-111, within the time required bythis chapter, or who fails to file any return as required by this chapter, shall pay, in addition to thetax, penalties and interest as provided in Section 59-1-401.
(d) For purposes of prosecution under this section, each quarterly tax period in which aseller, with intent to evade any tax, collects a tax and fails to timely remit the full amount of thetax required to be remitted, constitutes a separate offense.
Amended by Chapter 212, 2009 General Session