§ 44-19-15.2. Flea markets. (a)(1) Notwithstanding any other provision of law, all persons making retail sales at a flea market shall register and pay the sales tax as provided in this section.

(2) "Flea market" is defined as a place of business that provides space more than six (6) times a year under a single promoter's permit at the same location to two (2) or more people making retail sales of property, usually, but not exclusively, second-hand property that is not permanently displayed or stored at the flea market.

(3) Excluded from this definition of "flea market" are shows such as art shows, antique shows, industry, trade, and professional shows.

(b)(1) Persons engaging in the business of making retail sales at flea markets shall register and pay an annual registration fee of one hundred twenty dollars ($120), this fee being due on July 1 of each year. This registration fee is credited against that person's actual annual sales tax liability. This registration is valid at any location in the state during the period for which it is issued. In the event that the annual sales tax liability is less than one hundred twenty dollars ($120), then the person is not required to file an annual sales tax return, but in no event shall any person receive a refund of any portion of the registration fee.

(2) Should any person's tax liability exceed one hundred twenty dollars ($120), then that person must file an annual return. The annual return is submitted upon forms prescribed, prepared and furnished by the tax division accounting for all sales or purchases taxable under this chapter during the preceding January 1 through December 31. The annual return is due on or before January 20 of the subsequent calendar year. Any person beginning business subsequent to January 1 is responsible for transmitting an annual return on or before January 20 of the subsequent calendar year for all months in which he or she made taxable sales or purchases through December 31 of the preceding year; or

(c)(1) Persons engaging in the business of making retail sales at flea markets, not on a permanent basis, may, at their option, register as follows:

(i) On a quarterly basis for a fee of forty dollars ($40.00). This registration is valid at any location in the state during the period for which it is used. In no event shall a refund be payable from the registration fee. This registration fee is credited against any person's actual sales tax liability;

(ii) On a monthly basis for a fee of ten dollars ($10.00). This registration fee is to be paid per location at which retail sales are made. In no event shall a refund be payable from the registration fee. This registration fee is credited against any person's actual sales tax liability; and

(iii) Persons registering on a quarterly or monthly basis shall file quarterly returns if their tax liability exceeds the amount of the registration fees paid during that quarter. The quarterly returns are submitted upon forms prescribed, prepared and furnished by the tax administrator, showing the gross sales, or purchases, as the case may be, arising from all sales or purchases taxable under this chapter during the preceding quarter. The quarterly return is due on or before the twentieth day of the subsequent month following the last day of the preceding quarterly period.

(2) All permits issued pursuant to this section must be prominently displayed at the retailer's booth.

(d) At the time of transmitting any of the returns required under paragraph (c)(1)(iii) of this section to the tax administrator, the retailer shall remit with the return the amount of tax due, and failure to remit the tax or to file the return causes the tax to become delinquent. The failure to remit the tax or to file the returns subjects the retailer to the penalty provided in this title for delinquent tax payments to the tax administrator.

(e)(1) The flea market operator/promoter is responsible for ensuring that all retailers operating at his or her flea market are properly registered with the division of taxation. The flea market promoter/operator is empowered to accept applications for registration on a monthly basis from retailers not otherwise registered, along with all fees required under this section. The flea market promoter/operator shall supply the retailer with the application/permit, along with evidence of the amount of fee submitted. This permit shall be displayed by the retailer and serves as evidence of proper registration.

(2) The flea market promoter/operator shall submit the fees collected under this section within three (3) business days of receipt of fees on a form prescribed, prepared and furnished by the division of taxation. The failure to remit the fee or to file the return subjects the flea market promoter/operator to the penalty provided in this title for delinquent tax payments to the tax administrator.

(f) There is a penalty upon the retailer of ten dollars ($10.00) per booth per day for violations of this section. The division of taxation also imposes a penalty upon the flea market promoter/operator of twenty dollars ($20.00) per booth per day, up to a maximum fine of two hundred dollars ($200) per day at any location where it is determined by the tax administrator that the flea market operator has been negligent in allowing retailers to operate at the flea market without proper registration. For the purposes of this section, "negligent" includes, but is not limited to, any failure of the flea market promoter/operator to make a reasonable attempt to ensure that every dealer renting space from him or her is properly registered for tax purposes. A determination by the tax administrator that a flea market promoter/operator has been negligent is deemed presumptively correct. That determination may be rebutted only if the flea market promoter/operator makes a showing of due care. As used in this subdivision, "due care" means that the flea market promoter/operator has made every reasonable effort to ensure that every retailer renting space from him or her is properly registered for tax purposes.

(g) Persons selling only nontaxable items such as clothing are required to register for a special permit and display the permit but are not required to pay a registration fee.

(h) The provisions of this section do not apply to retailers selling prepared foods at flea markets for consumption.

History of Section. (P.L. 1995, ch. 378, § 1; P.L. 1998, ch. 436, § 1; P.L. 2000, ch. 339, § 1; P.L. 2000, ch. 442, § 1.)