Sec. 3.5. (a) This section applies only in the context of an audit or other investigation conducted by the department of calendar years beginning after December 31, 2018, and before January 1, 2022.
(b) Subject to the limits in subsection (c), a marketplace facilitator is relieved of liability for the failure to collect and remit gross retail or use tax on taxable retail transactions to the extent that the marketplace facilitator can show to the department's satisfaction that:
(1) the taxable retail transaction was made through the marketplace;
(2) the marketplace facilitator and the seller are not affiliated persons;
(3) the failure to collect gross retail or use tax was not due to an error in sourcing the transaction; and
(4) the transaction facilitated by the marketplace facilitator occurred before January 1, 2022, regardless of when the purchased items are delivered to the purchaser.
(c) Liability relief for a marketplace facilitator under this section for any calendar year to which this section applies is limited as follows:
(1) For calendar year 2019, the liability relief may not exceed five percent (5%) of the total tax due under this article on taxable retail transactions facilitated by the marketplace and sourced to this state under IC 6-2.5-13-1 during the same calendar year.
(2) For calendar year 2020, the liability relief may not exceed three percent (3%) of the total tax due under this article on taxable retail transactions facilitated by the marketplace and sourced to this state under IC 6-2.5-13-1 during the same calendar year.
(3) For calendar year 2021, the liability relief may not exceed two percent (2%) of the total tax due under this article on taxable retail transactions facilitated by the marketplace and sourced to this state under IC 6-2.5-13-1 during the same calendar year.
(d) If a marketplace facilitator is relieved of liability under this section, the seller is also relieved of liability for the amount of uncollected tax due.
(e) Nothing in this section shall be construed to relieve any person of liability for collecting but failing to remit to the department gross retail and use tax. If a marketplace facilitator exceeds the limits of subsection (c), the marketplace facilitator is liable for the payment of any remaining taxes, plus any penalties and interest attributable to those taxes, to the state. The marketplace facilitator shall also be considered a retail merchant for purposes of section 3 of this chapter.
(f) This section expires January 1, 2023.
As added by P.L.108-2019, SEC.119.
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