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Business Taxes Law Guide – Revision 2021
 

Sales And Use Tax Regulations

Article 17. Payment and Collection of Use Tax

Regulation 1684.5


Regulation 1684.5. Marketplace Sales.

Reference: Sections 6041, 6041.1, 6041.5, 6042, 6043, 6044, 6045, 6046, and 6203, Revenue and Taxation Code.

(a) DEFINITIONS.

(1) "Automated Clearing House Debit" means any completed or attempted debit to an account at a financial institution that is processed electronically through the Automated Clearing House Network (ACH Network).

(2) "Branding sales as those of the marketplace facilitator" means using any means, including, but not limited to a name, logo, sign, symbol, or a combination of these, to identify the marketplace facilitator as the person selling a marketplace seller’s product.

(3) "Delivery network company" means a business entity that maintains an internet website or mobile application used to facilitate delivery services for the sale of local products. A person that is a delivery network company is not a marketplace facilitator, unless it makes an election to be deemed a marketplace facilitator pursuant to subdivision (d) of this regulation. Nothing in this regulation shall preclude a delivery network company from being a retailer as defined in Revenue and Taxation Code section 6015.

(4) "Delivery services" means the pickup of one or more local products from a local merchant and delivery of the local products to a customer. "Delivery services" do not include any delivery requiring over 75 miles of travel from the local merchant to the customer.

(5) "Facilitate." For purposes of this regulation, a person contracts with a marketplace seller to facilitate the sale of the marketplace seller’s products through a marketplace if the person agrees to do anything directly or indirectly, through one or more related persons, that makes it easy or easier for the marketplace seller to sell its products through the marketplace. Also, a marketplace facilitator facilitates a sale by a marketplace seller through its marketplace if it does anything directly or indirectly, through one or more related persons, that makes it easy or easier for the marketplace seller to make the sale through the marketplace. Such activities include, but are not limited to communicating the offer or acceptance between the buyer and seller, taking orders for merchandise, or providing payment processing or fulfillment services.

(A) However, a person, including, but not limited to a person who operates a newspaper or internet website, that advertises tangible personal property for sale, refers purchasers to the seller by telephone, mail, email, website address, internet link, or other similar means to complete sales, and does not participate further in the sales is not facilitating the sales for purposes of this regulation. Therefore, such a person is not a marketplace facilitator for purposes of the sales.

Example 1: Company A is a marketplace facilitator that facilitates sales of tangible merchandise by marketplace sellers through its website. In addition, Company A sells advertising space on its website and allows sellers to include the picture, description, and sales price of their merchandise. Company A also allows the sellers to provide an internet link to the seller’s website so that Company A may refer potential purchasers to these sellers to complete sales of the tangible merchandise advertised for sale on Company A’s website. Company A does not otherwise participate further in the sales, such as taking orders or providing payment processing or fulfillment services. Therefore, Company A is not facilitating the sales of tangible merchandise made through the advertisements on its website and Company A is not a marketplace facilitator for purposes of those sales.

Example 2: The facts are the same as in example 1, except that Company A offers an email relay service to sellers that advertise on its website whereby Company A provides a fabricated email address to both the buyer and seller to mask their personal email addresses. The provision of such an email relay service does not constitute participation in the sale of the tangible merchandise advertised for sale on its website beyond advertising the merchandise for sale and referring the purchaser to the seller to complete the sale. Therefore, Company A is not facilitating the sales of tangible merchandise made through the advertisements on its website and Company A is not a marketplace facilitator for purposes of those sales.

Example 3: The facts are the same as in example 1, except that Company A also contracts to provide payment processing services to sellers that advertise on its website to make it easier for them to sell their merchandise through the website. Therefore, Company A is facilitating the sales of the tangible merchandise made through the advertisements on its website and Company A is a marketplace facilitator for purposes of those sales.

(6) "Listing Products for Sale" means a written, verbal, pictorial, graphic, or similar means of announcement of goods for sale.

(7) "Local merchant" means a third-party merchant, including, but not limited to, a kitchen, restaurant, grocery store, retail store, convenience store, or business of another type, that is not under common ownership or control with the delivery network company.

(8) "Local product" means any item, including food, other than freight, mail, or a package to which postage has been affixed.

(9) "Marketplace" means a physical or electronic place, including, but not limited to, a store, booth, internet website, catalog, television or radio broadcast, or a dedicated sales software application, where a marketplace seller sells or offers for sale tangible personal property for delivery in this state regardless of whether the tangible personal property, marketplace seller, or marketplace has a physical presence in this state.

(10) "Marketplace facilitator" means a person who contracts with marketplace sellers to facilitate for consideration, regardless of whether deducted as fees from the transaction, the sale of the marketplace seller’s products through a marketplace operated by the person or a related person and who does both of the following:

(A) Directly or indirectly, through one or more related persons, engages in any of the following:

(i) Transmitting or otherwise communicating the offer or acceptance between the buyer and seller.

(ii) Owning or operating the infrastructure, electronic or physical, or technology that brings buyers and sellers together.

(iii) Providing a virtual currency that buyers are allowed or required to use to purchase products from the seller.

(iv) Software development or research and development activities related to any of the activities described in subdivision (a)(10)(B) of this regulation, if such activities are directly related to a marketplace operated by the person or a related person.

(B) Directly or indirectly, through one or more related persons, engages in any of the following activities with respect to the marketplace seller’s products:

(i) Payment processing services.

(ii) Fulfillment or storage services.

(iii) Listing products for sale.

(iv) Setting prices.

(v) Branding sales as those of the marketplace facilitator.

(vi) Order taking.

(vii) Providing customer service or accepting or assisting with returns or exchanges.

Example 4: Company A owns and operates a website where third-party sellers offer to sell merchandise for delivery in California. Company A also enters into contracts to facilitate the sale of third-party sellers’ merchandise through its website for a fee and provides payment processing services for sales of these sellers’ merchandise sold through its website. Therefore, Company A is a marketplace facilitator.

(11) "Marketplace seller" means a person who has an agreement with a marketplace facilitator and makes retail sales of tangible personal property through a marketplace owned, operated, or controlled by a marketplace facilitator, even if that person would not have been required to hold a seller’s permit or permits, or required to collect the use tax imposed pursuant to chapter 3 (commencing with section 6201) of part 1 of division 2 of the Revenue and Taxation Code, had the sale not been made through that marketplace.

(12) "Payment Order" means a written instruction or order to pay money signed by the person giving the instruction whether created in electronic or paper format.

(13) "Payment Processing Services" means providing a person, directly or indirectly, with the means used to charge or debit accounts through the use of any payment method or mechanism, including, but not limited to, credit cards, debit cards, prepaid cards, stored value cards, Automated Clearing House (ACH) debits, and payment orders, whether accomplished through the use of software or otherwise.

(14) "Related Person." For the purposes of this regulation, a person is related to another person if both persons are related to each other pursuant to section 267(b) of the Internal Revenue Code and the regulations thereunder.

(15) "Setting Prices" means establishing a price or prices at which an item is offered for sale or sold to customers and includes establishing a price at which an item must be sold or a minimum or maximum price, below or above which an item cannot be sold.

(16) "Virtual Currency" is a digital representation of value that functions as a medium of exchange, a unit of account, or a store of value, but which does not have legal tender status in any jurisdiction. Virtual currency does not include retailer coupons or gift cards.

(A) If the consideration for a retail sale of tangible personal property is virtual currency, the measure of tax shall be determined pursuant to Regulation 1654, Barter, Exchange, "Trade-ins" and Foreign Currency Transactions.

(b) REGISTRATION REQUIREMENTS FOR MARKETPLACE FACILITATORS AND MARKETPLACE SELLERS.

(1) On and after October 1, 2019, a marketplace facilitator shall be considered the seller and retailer for each sale facilitated through its marketplace for purposes of determining whether the marketplace facilitator is required to register with the Department for a seller’s permit or Certificate of Registration – Use Tax, in addition to each sale for which the marketplace facilitator is the seller or retailer or both under chapter 1 (commencing with Section 6001) of part 1 of division 2 of the Revenue and Taxation Code. Also, on and after October 1, 2019, for purposes of determining whether a marketplace facilitator is a retailer engaged in business in this state because its total combined sales of tangible personal property for delivery in this state exceed the $500,000 threshold in Revenue and Taxation Code section 6203, subdivision (c)(4), the marketplace facilitator shall include all sales of tangible personal property for delivery in this state, including sales made on its own behalf and by all related persons and sales facilitated on behalf of marketplace sellers.

Example 5: Company A is a marketplace facilitator with no physical presence in California. Company A did not make or facilitate any sales of tangible merchandise for delivery in California during 2018. From January 1, 2019, to September 30, 2019, Company A sold $300,000 of tangible merchandise for delivery in California on its own behalf and facilitated sales of $250,000 of tangible merchandise for delivery in California through its marketplace for Seller A, a marketplace seller. Since the total combined sales of tangible merchandise for delivery in California exceeded the $500,000 threshold in Revenue and Taxation Code section 6203, subdivision (c)(4), during 2019 and prior to October 1, 2019, Company A is a retailer engaged in business in this state on October 1, 2019, and must register with the Department for a Certificate of Registration – Use Tax, and collect and remit use tax beginning October 1, 2019.

(2) On and after October 1, 2019, a marketplace seller shall register with the Department for a seller’s permit or Certificate of Registration – Use Tax, as required, for retail sales made on its own behalf and not facilitated through a registered marketplace facilitator. On and after October 1, 2019, a marketplace seller is not required to register with the Department for a seller’s permit if it does not make any sales of tangible personal property in this state, except for sales facilitated by marketplace facilitators who are the sellers and retailers for purposes of those sales pursuant to subdivision (c) of this regulation. On and after October 1, 2019, a marketplace seller is not required to register with the Department for a Certificate of Registration – Use Tax if it does not make any sales of tangible personal property for storage, use, or other consumption in this state, except for sales facilitated by marketplace facilitators who are the sellers and retailers for purposes of those sales pursuant to subdivision (c) of this regulation. Also, on and after October 1, 2019, for purposes of determining whether a marketplace seller is a retailer engaged in business in this state because its total combined sales of tangible personal property for delivery in this state exceed the $500,000 threshold in Revenue and Taxation Code section 6203, subdivision (c)(4), the marketplace seller shall include all sales of tangible personal property for delivery in this state, including sales made on its own behalf and sales facilitated through any marketplace facilitator’s marketplace.

Example 6: Seller A is a marketplace seller that has no physical presence in California. Seller A did not make more than $500,000 in sales of tangible merchandise for delivery in California during 2018, and from January 1, 2019, to September 30, 2019, Seller A made $200,000 in sales of tangible merchandise for delivery in California that were facilitated through a marketplace facilitator’s marketplace and made $299,500 in sales of tangible merchandise for delivery in California through its own website. Therefore, on October 1, 2019, Seller A is not a retailer engaged in business in this state and is not required to be registered with the Department. However, on October 2, 2019, Seller A made a $900 sale of tangible merchandise for delivery in California through its website that when combined with its other sales exceeded the $500,000 threshold in Revenue and Taxation Code section 6203, subdivision (c)(4). Therefore, Seller A is a retailer engaged in business in this state and required to register with the Department for a Certificate of Registration – Use Tax immediately after the $900 sale on October 2, 2019. Also, Seller A is required to collect and remit use tax on its subsequent retail sales to California customers, except for its retail sales facilitated by marketplace facilitators who are the sellers and retailers for purposes of those sales pursuant to subdivision (c) of this regulation.

Example 7: Seller B is a marketplace seller that leases spaces in a California warehouse where it stores some of its inventory and fulfills some of its orders. However, on and after October 1, 2019, Seller B will only make sales of tangible merchandise in California or for delivery in California that are facilitated by Company C, a marketplace facilitator who will be the seller and retailer for purposes of those sales pursuant to subdivision (c) of this regulation. Therefore, on and after October 1, 2019, Seller B will not be the retailer responsible for paying sales tax or collecting and remitting use tax on its sales in California or for delivery in California and Seller B will not be required to be registered with the Department for a seller’s permit or Certificate of Registration – Use Tax on and after October 1, 2019.

(c) WHEN A MARKETPLACE FACILITATOR IS THE SELLER AND RETAILER.

A marketplace facilitator that is registered with the Department or required to register with the Department for a seller’s permit or Certificate of Registration – Use Tax and facilitates a retail sale of tangible personal property by a marketplace seller on or after October 1, 2019, is the retailer selling or making the sale of the tangible personal property sold through its marketplace. Therefore, the marketplace facilitator is the retailer responsible for paying sales tax or collecting and remitting use tax on that sale and the marketplace seller is not the retailer responsible for paying sales tax or collecting and remitting use tax on that sale, unless the marketplace facilitator qualifies for relief from liability for the tax on that sale pursuant to Revenue and Taxation Code section 6046.

Example 8: Company A is a marketplace facilitator that is currently registered for a seller’s permit with the Department. Company A enters into an agreement with Company B, a third-party retailer and marketplace seller, to facilitate sales of Company B’s tangible merchandise through Company A’s marketplace. Company B provides Company A with sufficient information for Company A to determine the correct amount of tax due on the retail sales of Company B’s merchandise for delivery in California. Therefore, when Company A facilitates a retail sale of Company B’s tangible merchandise for delivery in California through its marketplace on or after October 1, 2019, Company A is the retailer selling or making the sale of the merchandise sold for delivery in California and the retailer responsible for paying sales tax or collecting and remitting use tax on that sale, and Company B is not the retailer responsible for paying sales tax or collecting and remitting use tax on that sale.

Example 9: The facts are the same as in example 7, except that Company A is not registered or required to be registered with the Department for a seller’s permit or Certificate of Registration – Use Tax on October 1, 2019, because it does not have a physical presence in California, it did not make any sales for delivery in California during 2018, and it only made or facilitated $250,000 in total combined sales of tangible merchandise for delivery in California from January 1, 2019, through September 30, 2019. Also, Company B is required to be registered with the Department for a Certificate of Registration – Use Tax on October 1, 2019, because it made $550,000 in sales of merchandise for delivery in California from January 1, 2019, through September 30, 2019, and it makes sales for storage, use or other consumption in California that are not facilitated through a registered marketplace facilitator. Therefore, when Company A facilitates a sale of Company B’s merchandise through its marketplace on October 1, 2019, Company B is the retailer selling or making the sale of the merchandise and the retailer responsible for collecting and remitting use tax on that sale, and Company A is not the retailer responsible for collecting and remitting use tax on that sale.

(d) ELECTION.

(1) A delivery network company that meets the definition of marketplace facilitator in subdivision (a) of this regulation may elect to be deemed a marketplace facilitator.

(2) To be deemed a marketplace facilitator a delivery network company must register with the Department for a Seller’s Permit or a Certificate of Registration – Use Tax, whichever is applicable, unless the delivery network company is already registered, and submit a written or electronic statement signed by an authorized representative that includes an election to be deemed a marketplace facilitator and a voluntary agreement to remain registered with the Department while its election is in effect.

(3) An election is effective at the beginning of the next reporting period starting after the date the election is received by the Department and remains in effect until the beginning of the next reporting period starting after the date the Department receives a written or electronic statement from the delivery network company that it is cancelling its election, which is signed by an authorized representative.

(4) A delivery network company that makes such an election and facilitates a retail sale of tangible personal property by a marketplace seller through its marketplace for delivery in California while its election is in effect shall be the retailer selling or making the sale of the tangible personal property and the retailer responsible for paying sales tax or collecting and remitting use tax on that sale.

History: New regulation filed June 29, 2020, as an emergency; effective and operative June 29, 2020. A Certificate of Compliance must be transmitted to the Office of Administrative Law by June 28, 2022, or the regulation will be repealed by operation of law on the following day.