§ 44-18.2-3. Requirements for non-collecting retailers, referrers, and retail sale facilitators. (A) Except as otherwise provided below in § 44-18.2-4, beginning on the later of July 15, 2017, or two (2) weeks after the enactment of this chapter, and for each tax year thereafter prior to ninety (90) days after March 29, 2019, any non-collecting retailer, referrer, or retail sale facilitator, as defined in this chapter, that in the immediately preceding calendar year either:

(i) Has gross revenue from the sale of tangible personal property, prewritten computer software delivered electronically or by load and leave, and/or has taxable services delivered into this state equal to or exceeding one hundred thousand dollars ($100,000); or

(ii) Has sold tangible personal property, prewritten computer software delivered electronically or by load and leave, and/or taxable services for delivery into this state in two hundred (200) or more separate transactions shall comply with the requirements in subsections (F), (G), and (H) as applicable.

(B) A non-collecting retailer, as defined in this chapter, shall comply with subsection (F) below if it meets the criteria of either subsection (A)(i) or (A)(ii) above.

(C) A referrer, as defined in this chapter, shall comply with subsection (G) below if it meets the criteria of either subsection (A)(i) or (A)(ii) above.

(D) A retail sale facilitator, as defined in this chapter, shall comply with subsection (H) below if it meets the criteria of either subsection (A)(i) or (A)(ii) above.

(E) Any non-collecting retailer, retail sale facilitator and/or referrer that is collecting and remitting sales tax into this state prior to March 29, 2019, shall be deemed a remote seller and/or marketplace facilitator and/or referrer and shall continue to collect and remit sales tax.

Beginning on ninety (90) days after March 29, 2019, any remote seller, marketplace seller, marketplace facilitator, and/or referrer, as defined in this chapter, who is not collecting and remitting sales tax shall comply with the requirements in subsection (I) if that remote seller, marketplace seller, marketplace facilitator, and/or referrer, as defined in this chapter: Has not been collecting or remitting sales tax in this state and, in the immediately preceding calendar year either:

(i) Has gross revenue from the sale of tangible personal property, prewritten computer software delivered electronically or by load and leave, vendor-hosted prewritten computer software, specified digital products, and/or has taxable services delivered into this state equal to or exceeding one hundred thousand dollars ($100,000); or

(ii) Has sold tangible personal property, prewritten computer software delivered electronically or by load and leave, vendor-hosted prewritten computer software, specified digital products, and/or taxable services for delivery into this state in two hundred (200) or more separate transactions.

(F) Non-collecting retailer. A non-collecting retailer shall either register in this state for a permit to make sales at retail and collect and remit sales and use tax on all taxable sales into the state or:

(1) Post a conspicuous notice on its website that informs in-state customers that sales or use tax is due on certain purchases made from the non-collecting retailer and that this state requires the in-state customer to file a sales or use tax return;

(2) At the time of purchase, notify in-state customers that sales or use tax is due on taxable purchases made from the non-collecting retailer and that the state of Rhode Island requires the in-state customer to file a sales or use tax return;

(3) Within forty-eight (48) hours of the time of purchase, notify in-state customers in writing that sales or use tax is due on taxable purchases made from the non-collecting retailer and that this state requires the in-state customer to file a sales or use tax return reflecting said purchase;

(4) On or before January 31 of each year, including January 31, 2018, for purchases made in calendar year 2017, send a written notice to all in-state customers who have cumulative annual taxable purchases from the non-collecting retailer totaling one hundred dollars ($100) or more for the prior calendar year. The notification shall show the name of the non-collecting retailer, the total amount paid by the in-state customer to the non-collecting retailer in the previous calendar year, and, if available, the dates of purchases, the dollar amount of each purchase, and the category or type of the purchase, including, whether the purchase is exempt or not exempt from taxation in Rhode Island. The notification shall include such other information as the division may require by rule and regulation. The notification shall state that the state of Rhode Island requires a sales or use tax return to be filed and sales or use tax to be paid on certain categories or types of purchases made by the in-state customer from the non-collecting retailer. The notification shall be sent separately to all in-state customers by first-class mail and shall not be included with any other shipments or mailings. The notification shall include the words "Important Tax Document Enclosed" on the exterior of the mailing; and

(5) Beginning on February 15, 2018, and not later than each February 15 thereafter, a non-collecting retailer that has not registered in this state for a permit to make sales at retail and collect and remit sales and use tax on all taxable sales into the state for any portion of the prior calendar year, shall file with the division on such form and/or in such format as the division prescribes an attestation that the non-collecting retailer has complied with the requirements of subsections (F)(1) - (F)(4) herein.

(G) Referrer. At such time during any calendar year, or any portion thereof, that a referrer receives more than ten thousand dollars ($10,000) from fees, commissions, and/or other compensation paid to it by retailers with whom it has a contract or agreement to list and/or advertise for sale tangible personal property, prewritten computer software delivered electronically or by load and leave, and/or taxable services, said referrer shall within thirty (30) days provide written notice to all such retailers that the retailers' sales may be subject to this state's sales and use tax.

(H) Retail sale facilitator. Beginning January 15, 2018, and each year thereafter, a retail sale facilitator shall provide the division of taxation with:

(i) A list of names and addresses of the retailers for whom during the prior calendar year the retail sale facilitator collected Rhode Island sales and use tax; and

(ii) A list of names and addresses of the retailers who during the prior calendar year used the retail sale facilitator to serve in-state customers but for whom the retail sale facilitator did not collect Rhode Island sales and use tax.

(I) Remote sellers, referrers, and marketplace facilitators. A remote seller, referrer, and marketplace facilitator shall register in this state for a permit to make sales at retail and collect and remit sales and use tax on all taxable sales into the state.

(i) A marketplace facilitator shall collect sales and use tax on all sales made through the marketplace to purchasers in this state whether or not the marketplace seller (1) Has or is required to have a permit to make sales at retail or (2) Would have been required to collect and remit sales and use tax had the sale not been made through the marketplace facilitator.

(ii) A marketplace facilitator shall certify to its marketplace sellers that it will collect and remit sales and use tax on sales of taxable items made through the marketplace. A marketplace seller that accepts a marketplace facilitator's collection certificate in good faith may exclude sales made through the marketplace from the marketplace seller's returns under chapters 18 and 19 of title 44.

(iii) A marketplace facilitator with respect to a sale of tangible personal property, prewritten computer software delivered electronically by load and leave, vendor-hosted prewritten software, and/or taxable services it facilitates:

(a) Shall have all the obligations and rights of a retailer under chapters 18 and 19 of title 44 and under any regulations adopted pursuant thereto, including, but not limited to, the duty to obtain a certificate of authority, to collect tax, file returns, remit tax, and the right to accept a certificate or other documentation from a customer substantiating an exemption or exclusion from tax, the right to receive a refund or credit allowed by law; and (b) Shall keep such records and information and cooperate with the tax administrator to ensure the proper collection and remittance of tax imposed, collected, or required to be collected under chapters 18 and 19 of title 44.

(iv) A marketplace facilitator shall be subject to audit by the tax administrator with respect to all retail sales for which it is required to collect and pay the tax imposed under chapters 18 and 19 of title 44. Where the tax administrator audits the marketplace facilitator, the tax administrator is prohibited from auditing the marketplace seller for the same retail sales unless the marketplace facilitator seeks relief under subsection (v).

(v) If the marketplace facilitator demonstrates to the tax administrator's satisfaction that the marketplace facilitator has made a reasonable effort to obtain accurate information from the marketplace seller about a retail sale and that the failure to collect and pay the correct amount of tax imposed under chapters 18 and 19 of title 44 was due to incorrect information provided to the marketplace facilitator by the marketplace seller, then the marketplace facilitator shall be relieved of liability of the tax for that retail sale. This subsection (v) does not apply with regard to a retail sale for which the marketplace facilitator is the seller or if the marketplace facilitator and seller are affiliates. Where the marketplace facilitator is relieved under this subsection (v), the seller is liable for the tax imposed under chapters 18 and 19 of title 44.

(vi) A class action may not be brought against a marketplace facilitator on behalf of purchasers arising from or in any way related to an overpayment of sales or use tax collected by the marketplace facilitator, regardless of whether such action is characterized as a tax refund claim. Nothing in this subsection (vi) shall affect a purchaser's right to seek a refund as otherwise allowed by law.

(J) Any person or entity that engages in any activity or activities of a non-collecting retailer, referrer, and/or retail sale facilitator as defined herein shall be presumed to be a non-collecting retailer, referrer, and/or retail sale facilitator as applicable even if referred to by another name or designation. Said person or entity shall be subject to the terms and conditions set forth in this chapter.

History of Section. (P.L. 2017, ch. 302, art. 8, § 18; P.L. 2019, ch. 11, § 3; P.L. 2019, ch. 12, § 3; P.L. 2019, ch. 88, art. 5, § 10.)