54:32B-3.6 Sales, certain, collection of State taxes; definitions.

2. a. As used in this section:

"Marketplace facilitator" means a person, including any affiliate of the person, who facilitates a retail sale of tangible personal property, specified digital products, or taxable services by satisfying paragraphs (1) and (2) below:

(1) The person directly or indirectly does any of the following:

(i) Lists, makes available, or advertises tangible personal property, specified digital products, or services for sale by a marketplace seller in a forum owned, operated, or controlled by the person.

(ii) Facilitates the sales of a marketplace seller's product through a marketplace by transmitting or otherwise communicating an offer or acceptance of a retail sale of tangible personal property, specified digital products, or taxable services between a marketplace seller and a purchaser in a forum including a shop, store, booth, catalog, internet site, or similar forum.

(iii) Owns, rents, licenses, makes available, or operates any electronic or physical infrastructure or any property, process, method, copyright, trademark, or patent that connects marketplace sellers to purchasers for the purpose of making retail sales of tangible personal property, specified digital products, or taxable services.

(iv) Provides a marketplace for making retail sales of tangible personal property, specified digital products, or taxable services or otherwise facilitates retail sales of tangible personal property, specified digital products, or taxable services regardless of ownership or control of the tangible personal property, specified digital products, or taxable services that are the subject of the retail sale.

(v) Provides software development or research and development activities related to any activity described in this paragraph, if such software development or research and development activities are directly related to the physical or electronic marketplace provided by a marketplace facilitator.

(vi) Provides or offers fulfillment or storage services for a marketplace seller.

(vii) Sets prices for a marketplace seller's sale of tangible personal property, specified digital products, or taxable services.

(viii) Provides or offers customer service to a marketplace seller or a marketplace seller's customers, or accepts or assists with taking orders, returns, or exchanges of tangible personal property, specified digital products, or taxable services sold by a marketplace seller.

(ix) Brands or otherwise identifies sales as those of the marketplace facilitator.

(2) The person directly or indirectly does any of the following:

(i) Collects the sales price of a retail sale of tangible personal property, specified digital products, or taxable services.

(ii) Provides payment processing services for a retail sale of tangible personal property, specified digital products, or taxable services.

(iii) Charges, collects, or otherwise receives selling fees, listing fees, referral fees, closing fees, fees for inserting or making available tangible personal property, specified digital products, or taxable services on a marketplace, or other consideration from the facilitation of a retail sale of tangible personal property, specified digital products, or taxable services, regardless of ownership or control of the tangible personal property, specified digital products, or taxable services that are the subject of the retail sale.

(iv) Through terms and conditions, agreements, or arrangements with a third party, collects payment in connection with a retail sale of tangible personal property, specified digital products, or taxable services from a purchaser and transmits that payment to the marketplace seller, regardless of whether the person collecting and transmitting such payment receives compensation or other consideration in exchange for the service.

(v) Provides a virtual currency that purchasers are allowed or required to use to purchase tangible personal property, specified digital products, or taxable services.

"Marketplace seller" means a seller that makes retail sales through any physical or electronic marketplace owned, operated, or controlled by a marketplace facilitator, even if such seller would not have been required to collect and pay the tax imposed under P.L.1966, c.30 (C.54:32B-1 et seq.) had the sale not been made through such marketplace.

b. Following the effective date of P.L.2018, c.132 (C.54:32B-3.5 et al.), a marketplace facilitator shall collect and pay to the director the tax imposed under P.L.1966, c.30 (C.54:32B-l et seq.) any retail sale made or facilitated to a purchaser in this State, regardless of whether the marketplace seller has or is required to have a certificate of registration or would have been required to collect the tax imposed under P.L.1966, c.30 (C.54:32B-l et seq.) had the sale not been facilitated by the marketplace facilitator, and regardless of the amount of the sales price that will ultimately accrue to or benefit the marketplace facilitator, the marketplace seller, or any other person.

c. Nothing in this section shall be construed to interfere with the ability of a marketplace facilitator and a marketplace seller to enter into an agreement with each other regarding the collection and payment of tax imposed under P.L.1966, c.30 (C.54:32B -1 et seq.).

d. If the marketplace facilitator demonstrates to the satisfaction of the division 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 P.L.1966, c.30 (C.54:32B-l et seq.) 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 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, the seller is liable for the tax imposed under P.L.1966, c.30 (C.54:32B-1 et seq.).

e. Following each retail sale made, the marketplace facilitator shall provide to the purchaser a sales slip, invoice, receipt, or other statement or memorandum of the price paid or payable, which shall state, charge, and show the tax separately.

f. A marketplace facilitator shall be subject to audit by the division with respect to all retail sales for which it is required to collect and pay the tax imposed under P.L.1966, c.30 (C.54:32B-1 et seq.). Where the division audits the marketplace facilitator, the division is prohibited from auditing the marketplace seller for the same retail sales unless the marketplace facilitator seeks relief under subsection d. of this section.

g. Upon written application and for good cause shown, in order to ensure the accurate and timely collection of taxes due, the director shall have the discretion to temporarily suspend or delay the collection or reporting requirements, or both, of a marketplace facilitator for a period not to exceed 180 days. The director shall annually report to the Governor, and to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), on the number of marketplace facilitators granted a suspension or delay of tax collection or reporting requirements pursuant to this subsection and the duration of each suspension or delay, except in a year in which no such suspension or delay was granted.

L.2018, c.132, s.2.