Marketplace Facilitator Guidance for the 2020 State Legislative Session

On Dec. 2, the Multistate Tax Commission (MTC) published its Wayfair Implementation & Marketplace Facilitator Work Group 2019 white paper, which its Uniformity Committee has been working on for several months.

Topics Covered in the White Paper

This white paper is the result of numerous meetings and discussions and the MTC Uniformity Committee will continue to meet during 2020 to address other important issues. Although the white paper is 148 pages in length, for now, we can focus on pages 3-8, the Executive Summary of Findings, and Appendix A and Marketplace Facilitator Sales Tax Collection Model Legislation (also adopted by the National Conference of State Legislatures) on pages 76-80. In addition, the first nine pages are devoted to an executive summary that provides a helpful overview of each of the 13 issues. The issues are addressed in order of priority and the remainder of the paper delivers a much more comprehensive analysis of each issue.

The definition of marketplace facilitator and the determination of collection responsibility (which I will discuss in my next post) are two important priorities on which the Marketplace Facilitator Work Group is providing guidance to state legislatures and tax agencies when they consider new laws or amendments to existing statutes and regulations.

How U.S. States Define Marketplace Facilitators

When it comes to defining “marketplace facilitator” (Issue #1) in their post-Wayfair overhaul of sales tax laws, U.S. states tend to do so narrowly or broadly. The narrow definition, according MTC’s Uniformity Committee, “requires direct or indirect processing or collection of the customer’s payment by the marketplace facilitator/provider.” The broad definition may or may not include this requirement, which can create uncertainty, specifically in the area of collection.

Broad vs. Narrow State Definitions

To date, 19 states and the District of Columbia have adopted narrow definitions, whereas 15 states have opted for broader definitions of “marketplace facilitator.” As the draft white paper indicates, “with the broad definition, a business may not have access to the details of the sales transaction and may not handle the customer’s payment.” Additionally, some business participants in the work group have advocated that certain types of companies (e.g., advertisers, payment processors, advertisers and more) should be excluded from statutory definitions of marketplace facilitators. (And some states have outlined certain exclusions in their definitions of marketplace facilitators/providers.)

It’s also important to keep in mind that the National Conference of State Legislatures (NCSL) State and Local Task Force (SALT) finished its draft of model legislation for marketplace facilitator tax legislation. (See Appendix A noted above, as the NCSL and the MTC are communicating and coordinating as they pursue these related efforts.) SALT’s current draft of this model legislation also advocates a narrow definition of marketplace facilitators with certain exclusions.

In other words, narrow is better than broad when it comes to defining marketplace facilitators in the post-Wayfair era. Let’s hope state lawmakers see it that way, too.