[atlas:bill]

AN ACT Relating to retail sales and use tax collection and remittance; amending RCW 82.08.050 and 82.12.040; adding a new section to chapter 82.14 RCW; and providing an effective date.

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

Sec. 1. RCW 82.08.050 and 1993 sp.s. c 25 s 704 are each amended to read as follows:

The tax hereby imposed shall be paid by the buyer to the seller, and each seller shall collect from the buyer the full amount of the tax payable in respect to each taxable sale in accordance with the schedule of collections adopted by the department pursuant to the provisions of RCW 82.08.060. The tax required by this chapter, to be collected by the seller, shall be deemed to be held in trust by the seller until paid to the department, and any seller who appropriates or converts the tax collected to his or her own use or to any use other than the payment of the tax to the extent that the money required to be collected is not available for payment on the due date as prescribed in this chapter shall be guilty of a gross misdemeanor.

In case any seller fails to collect the tax herein imposed or having collected the tax, fails to pay it to the department in the manner prescribed by this chapter, whether such failure is the result of his or her own acts or the result of acts or conditions beyond his or her control, he or she shall, nevertheless, be personally liable to the state for the amount of the tax, unless the seller has taken from the buyer in good faith a properly executed resale certificate under RCW 82.04.470.

The amount of tax, until paid by the buyer to the seller or to the department, shall constitute a debt from the buyer to the seller and any seller who fails or refuses to collect the tax as required with intent to violate the provisions of this chapter or to gain some advantage or benefit, either direct or indirect, and any buyer who refuses to pay any tax due under this chapter shall be guilty of a misdemeanor. The tax required by this chapter to be collected by the seller shall be stated separately from the selling price in any sales invoice or other instrument of sale. On all retail sales through vending machines, the tax need not be stated separately from the selling price or collected separately from the buyer. For purposes of determining the tax due from the buyer to the seller and from the seller to the department it shall be conclusively presumed that the selling price quoted in any price list, sales document, contract or other agreement between the parties does not include the tax imposed by this chapter, but if the seller advertises the price as including the tax or that the seller is paying the tax, the advertised price shall not be considered the selling price.

Where a buyer has failed to pay to the seller the tax imposed by this chapter and the seller has not paid the amount of the tax to the department, the department may, in its discretion, proceed directly against the buyer for collection of the tax, in which case a penalty of ten percent may be added to the amount of the tax for failure of the buyer to pay the same to the seller, regardless of when the tax may be collected by the department; and all of the provisions of chapter 82.32 RCW, including those relative to interest and penalties, shall apply in addition; and, for the sole purpose of applying the various provisions of chapter 82.32 RCW, the twenty-fifth day of the month following the tax period in which the purchase was made shall be considered as the due date of the tax.

A seller may deduct from the amount of tax to be remitted to the department, an amount attributable to processing fees for those sales in which a buyer has used a lender credit or debit card for which there is a processing fee that is charged to the seller by the lender as a percentage of the total sales price including sales tax. Sellers may not take a deduction for amounts attributable to flat processing fees. The credit and debit card processing fee deduction shall be equal to that portion of the credit or debit card processing fee on the transaction that is attributable to the retail sales tax under this chapter. "Lender credit and debit card" includes cards issued by a financial institution primarily for the purpose of purchasing or leasing goods or services from a seller or to make a direct cash withdrawal from a financial institution to purchase or lease goods or services.

Sec. 2. RCW 82.12.040 and 1986 c 48 s 1 are each amended to read as follows:

(1) Every person who maintains in this state a place of business or a stock of goods, or engages in business activities within this state, shall obtain from the department a certificate of registration, and shall, at the time of making sales, or making transfers of either possession or title or both, of tangible personal property for use in this state, collect from the purchasers or transferees the tax imposed under this chapter. For the purposes of this chapter, the phrase "maintains in this state a place of business" shall include the solicitation of sales and/or taking of orders by sales agents or traveling representatives. For the purposes of this chapter, "engages in business activity within this state" includes every activity which is sufficient under the Constitution of the United States for this state to require collection of tax under this chapter. The department shall in rules specify activities which constitute engaging in business activity within this state, and shall keep the rules current with future court interpretations of the Constitution of the United States.

(2) Every person who engages in this state in the business of acting as an independent selling agent for persons who do not hold a valid certificate of registration, and who receives compensation by reason of sales of tangible personal property of his principals made for use in this state, shall, at the time such sales are made, collect from the purchasers the tax imposed under this chapter, and for that purpose shall be deemed a retailer as defined in this chapter.

(3) The tax required to be collected by this chapter shall be deemed to be held in trust by the retailer until paid to the department and any retailer who appropriates or converts the tax collected to his own use or to any use other than the payment of the tax provided herein to the extent that the money required to be collected is not available for payment on the due date as prescribed shall be guilty of a misdemeanor. In case any seller fails to collect the tax herein imposed or having collected the tax, fails to pay the same to the department in the manner prescribed, whether such failure is the result of his own acts or the result of acts or conditions beyond his control, he shall nevertheless, be personally liable to the state for the amount of such tax. A seller may deduct from the amount of tax to be remitted to the department, an amount attributable to processing fees for those sales in which a buyer has used a lender credit or debit card for which there is a processing fee that is charged to the seller by the lender as a percentage of the total sales price including sales tax. Sellers may not take a deduction for amounts attributable to flat processing fees. The credit and debit card processing fee deduction shall be equal to that portion of the credit or debit card processing fee on the transaction that is attributable to the use tax under this chapter. "Lender credit and debit card" includes cards issued by a financial institution primarily for the purpose of purchasing or leasing goods or services from a seller or to make a direct cash withdrawal from a financial institution to purchase or lease goods or services.

(4) Any retailer who refunds, remits, or rebates to a purchaser, or transferee, either directly or indirectly, and by whatever means, all or any part of the tax levied by this chapter shall be guilty of a misdemeanor.

NEW SECTION. Sec. 3. A new section is added to chapter 82.14 RCW to read as follows:

A seller may deduct from the amount of tax to be remitted to the department, an amount attributable to processing fees for those sales in which a buyer has used a lender credit or debit card for which there is a processing fee that is charged to the seller by the lender as a percentage of the total sales price including sales or use tax. Sellers may not take a deduction for amounts attributable to flat processing fees. The credit and debit card processing fee deduction shall be equal to that portion of the credit or debit card processing fee on the transaction that is attributable to the retail sales or use tax under this chapter. "Lender credit and debit card" includes cards issued by a financial institution primarily for the purpose of purchasing or leasing goods or services from a seller or to make a direct cash withdrawal from a financial institution to purchase or lease goods or services.

NEW SECTION. Sec. 4. This act takes effect October 1, 1999.