42-5043. Liability; marketplace facilitators; remote sellers; refund claims; audits; definition

A. A marketplace facilitator is not liable for failing to pay the correct amount of transaction privilege tax for a marketplace seller's sales through the marketplace facilitator's marketplace to the extent that the marketplace facilitator demonstrates any of the following to the satisfaction of the department:

1. The failure to pay the correct amount of tax was due to incorrect information given to the marketplace facilitator by the marketplace seller, and the marketplace facilitator and the marketplace seller are not affiliated persons.

2. The marketplace facilitator and the marketplace seller are not affiliated persons, and the failure to pay the correct amount of tax was due to an error other than an error in sourcing the sale under section 42-5040.

B. The liability relief provided in subsection A, paragraph 2 of this section may not exceed the following:

1. For calendar year 2019, five percent of the total tax due under this chapter on taxable sales facilitated by the marketplace facilitator on behalf of a marketplace seller and sourced to this state under section 42-5040 during the same calendar year.

2. For calendar year 2020, three percent of the total tax due under this chapter on taxable sales facilitated by the marketplace facilitator on behalf of a marketplace seller and sourced to this state under section 42-5040 during the same calendar year.

3. For calendar year 2021 and each calendar year thereafter, zero percent of the total tax due under this chapter on taxable sales facilitated by the marketplace facilitator on behalf of a marketplace seller and sourced to this state under section 42-5040 during the same calendar year.

C. A remote seller is not liable for failing to pay the correct amount of transaction privilege tax if failure to pay the correct amount of tax was due to an error other than an error in sourcing the sale under section 42-5040. The liability relief provided in this subsection may not exceed the following:

1. For calendar year 2019, five percent of the total tax due under this chapter on taxable sales sourced to this state under section 42-5040 during the same calendar year.

2. For calendar year 2020, three percent of the total tax due under this chapter on taxable sales sourced to this state under section 42-5040 during the same calendar year.

3. For calendar year 2021 and each calendar year thereafter, zero percent of the total tax due under this chapter on taxable sales sourced to this state under section 42-5040 during the same calendar year.

D. The department may waive penalties and interest if the marketplace facilitator or remote seller seeks liability relief, the department rules that reasonable cause exists and the marketplace facilitator paid tax on sales facilitated for a marketplace seller during the period for which relief is sought or the remote seller paid tax on sales during the period for which relief is sought.

E. The department may determine the manner in which a marketplace facilitator or remote seller may claim the liability relief provided for in this section.

F. Refund claims related to an overpayment of transaction privilege tax collected by a marketplace facilitator shall be filed as prescribed by section 42-1118. If a refund claim is denied, the claimant may appeal the denial pursuant to chapter 1, article 6 of this title.

G. An audit of a marketplace facilitator may not automatically cause an audit of a marketplace seller.

H. For the purposes of this section, " affiliated person" means a person that, with respect to another person, either:

1. Has an ownership interest of more than five percent, whether direct or indirect, in that other person.

2. Is related to the other person because a third person, or a group of third persons that are affiliated persons with respect to each other, holds an ownership interest of more than five percent, whether direct or indirect, in the related persons.