House Bill 363

AN ACT TO AMEND SECTION 27-67-4, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A PERSON DOING BUSINESS IN THIS STATE WHO MAKES A REMOTE SALE IS SUBJECT TO THE POWER OF THIS STATE TO LEVY AND COLLECT THE USE TAX WHEN THE PERSON SOLICITS OR TRANSACTS BUSINESS IN THIS STATE BY EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS OR OTHER REPRESENTATIVES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 27-67-4, Mississippi Code of 1972, is amended as follows:

27-67-4. (1) For purposes of this article, a "remote sale" is a sale of tangible personal property or specified digital products, ordered by mail or other means as described in subsection (2)(e), to a purchaser who is in this state at the time the order is remitted, from a person who receives the order in another state of the United States, or in a commonwealth, territory or other area under the jurisdiction of the United States, and which person transports the property or products or causes the property or products to be transported, whether or not by mail, from any jurisdiction of the United States, including this state, to the purchaser in this state who ordered the property or products or to another person in this state for whom the purchaser ordered the property. For purposes of this definition, it will be presumed that every purchaser resident in this state who remits an order shall have been in this state at the time the order was remitted.

(2) Every person doing business in this state who makes a remote sale is subject to the power of this state to levy and collect the tax imposed by this article when:

(a) The person is a corporation doing business under the laws of this state or a person domiciled in, a resident of, or a citizen of, this state;

(b) The person maintains retail establishments or offices in this state, whether the remote sales thus subject to taxation by this state result from or are related in any other way to the activities of such establishments or offices;

(c) The person solicits or transacts business in this state by employees, independent contractors, agents or other representatives, whether the remote sales thus subject to taxation by this state result from or are related in any other way to such solicitation or transaction of business. A person is presumed to be soliciting or transacting business by an independent contractor, agent, or other representative if the person enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an Internet website or otherwise, to the person. This presumption may be rebutted by proof that the resident with whom the person has an agreement did not engage in any solicitation in the state on behalf of the person that would satisfy the nexus requirement of the United States Constitution;

(d) The property was delivered in this state in fulfillment of a sales contract that was entered into in this state, in accordance with applicable conflict of laws rules, when a purchaser in this state accepted an offer by ordering the property;

(e) The person, by purposefully or systematically exploiting the consumer market provided by this state by any media-assisted, media-facilitated or media-solicited means, including, but not limited to, direct mail advertising, unsolicited distribution of catalogues, computer-assisted shopping, television, radio or other electronic media, or magazine or newspaper advertisements or other media, creates nexus with this state;

(f) Through compact or reciprocity with another jurisdiction of the United States, that jurisdiction uses its taxing power and its jurisdiction over the retailer in support of this state's taxing power; or

(g) The person consents, expressly or by implication, to the imposition of the tax imposed by this part.

(3) Every person engaged in the business of making remote sales is subject to the requirements of this article for cooperation in collection of taxes and in administration of this article, except that no fee shall be imposed upon such person for carrying out any required activity.

(4) The tax required under this section to be collected, and any amount unreturned to a purchaser that is not tax but was collected from the purchaser under the representation that it was tax, constitute funds of the State of Mississippi from the moment of collection.

SECTION 2. This act shall take effect and be in force from and after July 1, 2011.