When must a marketplace facilitator that sells products collect Kansas sales or use tax?
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This page answers the general question as of 2021. Ezel answers yours, under current Kansas tax law, with citations.
Plain-English summary
Kansas Notice 21-14 explains how the marketplace facilitator provisions in 2021 Senate Bill 50 (New Sections 1-4) -- the first Kansas law to recognize marketplace facilitator platforms -- apply to entities that sell products. (A companion notice, Notice 21-24, covers marketplace facilitators that provide lodging.)
What a marketplace facilitator is. A "marketplace facilitator" contracts with sellers to facilitate the sale of their products through a physical or electronic marketplace it operates, owns, or controls, and directly or indirectly collects the payment from the purchaser and transmits it to the seller. The definition excludes platforms that only provide advertising, that principally provide payment processing, and certain commodity-trading facilities. An entity can be both a facilitator (for others' sales) and a direct seller (for its own sales); when it makes its own direct sales it is not a marketplace facilitator and traditional sales tax law applies.
Which tax to collect. For products, the type of tax depends on where the facilitator is located: a marketplace facilitator located in Kansas registers for and collects Kansas retailers' sales tax; one located outside Kansas collects Kansas retailers' compensating use tax. The marketplace seller's location does not affect the type of tax. The Act's provisions supersede the general registration/collection rules of the Kansas sales tax act (K.S.A. 79-3601 et seq.) and compensating use tax act (K.S.A. 79-3701 et seq.).
$100,000 de minimis threshold. Collection and remittance are required beginning July 1, 2021, for facilitators whose calendar-year sales sourced into Kansas exceed $100,000 of "cumulative gross receipts." Only taxable sales count toward the threshold (exempt sales do not), and the figure includes both the facilitator's own sales and the sales it facilitates. In the first year the facilitator meets the threshold it need not collect on the first $100,000; once met, it must collect on all Kansas sales in the following year. A facilitator below the threshold need not collect but may do so voluntarily, and should advise its sellers that they remain responsible for the tax.
Departmental waiver and seller agreements. The Department may grant a waiver of the facilitator's collection duty if the facilitator shows that substantially all of its marketplace sellers are already collecting and remitting all applicable taxes; if a waiver is granted, the tax is collectible from the marketplace seller. A marketplace seller may also contractually agree to collect and remit the tax itself if it is registered under K.S.A. 79-3608 and meets the other conditions, in which case the seller is liable for any failure.
Liability, audit, and no class actions. Absent a waiver, the marketplace facilitator is liable for the tax on sales it makes or facilitates for delivery into Kansas, regardless of whether the marketplace seller was itself required to register. The Department will solely audit the marketplace facilitator for facilitated sales, and no class action may be brought against a facilitator in any court for overcollected tax.
What this means for you
Marketplace facilitators (product platforms)
- You must collect and remit Kansas tax on the sales you facilitate once your cumulative gross receipts sourced into Kansas exceed $100,000 (only taxable sales count).
- If you are located in Kansas you collect retailers' sales tax; if located outside Kansas you collect compensating use tax -- regardless of where your sellers are.
Marketplace sellers
- If your facilitator collects the tax, you do not collect it again on those sales; if you are registered under K.S.A. 79-3608 you may contractually agree to collect and remit it yourself.
- If the facilitator gets a Department waiver, the tax becomes collectible from you.
Businesses that both facilitate and sell directly
- You are a marketplace facilitator only for the sales you facilitate for others; your own direct sales follow traditional sales tax rules.
Common questions
What tax does a product facilitator collect? A Kansas-located facilitator collects Kansas retailers' sales tax; an out-of-state facilitator collects Kansas compensating use tax.
When does the duty start? Beginning July 1, 2021, once cumulative gross receipts sourced into Kansas exceed the $100,000 de minimis threshold (taxable sales only).
Does the seller's location matter? No -- the tax type depends on the facilitator's location, not the marketplace seller's.
Can the facilitator avoid collecting? The Department may grant a waiver if substantially all of the facilitator's sellers already collect and remit the tax, or a registered seller may agree to collect it.
Who is audited? The Department solely audits the marketplace facilitator for the sales it facilitates; no class action may be brought against a facilitator.
Where is lodging covered? Notice 21-24 covers marketplace facilitators that provide lodging.
Citations and references
- Senate Bill 50 (2021), New Sections 1-4 -- the first Kansas provisions recognizing marketplace facilitator platforms; require facilitators to collect and remit tax.
- K.S.A. 79-3603 -- retailers' sales tax (collected by a Kansas-located facilitator); K.S.A. 79-3703 -- compensating use tax (collected by an out-of-state facilitator).
- K.S.A. 79-3608 -- registration under which a marketplace seller may agree to collect and remit the tax itself.
- Notice 21-24 -- companion notice covering marketplace facilitators that provide lodging.
Source
- Landing page: Kansas Department of Revenue Policy Information Library
- Original document: Notice 21-14
Original ruling text
Policy and Research
109 SW 9th Street Phone: 785-368-8222
PO Box 3506 Fax: 785-296-1279
Topeka KS 66601-3506 www.ksrevenue.org
Mark A. Burghart, Secretary Laura Kelly, Governor
NOTICE 21-14
MARKETPLACE FACILITATORS
PRODUCTS
(NOVEMBER 1, 2021)
During the 2021 Legislative Session Senate Bill 50 was passed and signed into law. New
Sections 1 through 4 of the Bill address marketplace facilitator platforms and requires the
collection and remittance of certain taxes by marketplace facilitators.
As defined in the Bill, marketplace facilitators include entities that sell products or provide
lodging. This Notice addresses marketplace facilitators that sell products. For information
regarding marketplace facilitators that provide lodging, please see Notice 21-24.
Generally
Sections 1 through 4 of Senate Bill 50 are the first provisions in Kansas law to recognize
marketplace facilitator platforms. Under these provisions, entities that are determined to be
marketplace facilitators are subject to different requirements for the collection, remittance, and
reporting of sales and use tax than entities determined not to be marketplace facilitators. It is
important to note an entity may be both a marketplace facilitator facilitating sales for marketplace
sellers and a direct seller making sales on its own behalf. When acting as marketplace facilitator
an entity is subject to the provision of Sections 1 through 4 of Senate Bill 50. When acting as
direct seller (i.e., a retailer making direct sales to Kansas customers) an entity is not a marketplace
facilitator, and its direct sales to customers are subject to traditional sales tax law.
The specific provisions set forth in Sections 1 through 4 of Senate Bill 50 supersede any
requirements regarding registering, collecting, remitting, and reporting established by the Kansas
sales tax act (see K.S.A. 79-3601, et seq) and the Kansas compensating use tax act (see K.S.A. 79-
3701, et seq.). Otherwise, marketplace facilitators with Kansas nexus, whether physical or
economic, are subject to the provisions of K.S.A. 79-3601 and K.S.A. 79-3701.
For purposes of registration, the type of tax to be collected and remitted depends upon the
location of the marketplace facilitator. A marketplace facilitator located in Kansas will register
for, collect, and remit Kansas retailers' sales tax. A marketplace facilitator located outside of
Kansas will collect and remit Kansas retailers' compensating use tax. The location of a
marketplace seller who is selling through the marketplace facilitator's platform does not affect the
type of tax to be collected and remitted.
Definitions
Generally
New Section 1 of the bill defines the terms "Department", "marketplace facilitator",
"marketplace seller" and "tax". The term "marketplace facilitator" includes entities that contract
with sellers to facilitate the sale of products or lodgings through a physical or electronic
marketplace operated, owned, or otherwise controlled by the entity and either directly or indirectly
collect the payment from the purchaser and transmit all or part of the payment to the marketplace
seller. The definition excludes platforms that exclusively provide advertising services or
principally provide payment processing services.
Statutory Language
New Section 1(b) provides:
(b)(1) "Marketplace facilitator" means a person, including any affiliate of the
person, that:
(A) Contracts or otherwise agrees with marketplace sellers to facilitate for
consideration, regardless of whether deducted as fees from the transaction, the sale of
the marketplace seller's products or rooms, lodgings or accommodations through a
physical or electronic marketplace operated, owned or otherwise controlled by the
person; and
(B) either directly or indirectly through contracts, agreements or other
arrangements with third parties, collects the payment from the purchaser and transmits
all or part of the payment to the marketplace seller.
(2) A "marketplace facilitator" includes a person that provides a platform
through which unaffiliated third parties offer to rent to and collect consideration from
occupants for rental, for a period of less than 29 consecutive days, of rooms, lodgings,
accommodations, homes, apartments, cabins or residential dwelling units that are
intended to be used as a room, lodging or sleeping accommodation by one person or
by two or more persons maintaining a common household, to the exclusion of all
others. A person is not a marketplace facilitator with respect to the sale or charges for
rooms, lodgings or sleeping accommodations, if such rooms, lodgings or sleeping
accommodations are provided by a hotel as described in K.S.A. 36-501, and
amendments thereto, and the hotel provides the rooms, lodgings or sleeping
accommodations for occupancy under a brand belonging to such person or the person
facilitates sales or charges on behalf of the hotel.
(3) A "marketplace facilitator" does not include:
(A) A platform or forum that exclusively provides advertising services, including
listing products for sale, so long as the advertising service platform or forum does not
also engage directly or indirectly through one or more affiliated persons in the
activities described in section 1(b)(1)(A) or (b)(1)(B), and amendments thereto;
(B) a person whose principal activity with respect to marketplace sales is to
provide payment processing services between two parties; or
(C) a derivatives clearing organization, designated contract market, foreign
board of trade or swap execution facility, registered with the commodity futures trading
commission, and any clearing members, futures commission merchants or brokers
when using the services of the commodity futures trading commission.
(c) "Marketplace seller" means a seller that makes sales through any physical
or electronic marketplace operated, owned or controlled by a marketplace facilitator.
(d) "Tax" means:
(1) The retailers' sales tax imposed under K.S.A. 79-3603, and amendments
thereto;
(2) the compensating use tax imposed under K.S.A. 79-3703, and amendments
thereto; or
(3) the transient guest tax imposed under K.S.A. 12-1693 or 12-1697, and
amendments thereto, or any applicable city or county resolution or ordinance.
De Minimis Threshold Measurements
Starting Date
New Section 2 of the bill requires the collection and remittance of sales and compensating
use tax by marketplace facilitators beginning July 1, 2021. All calculations required under the
marketplace facilitator provisions start from this date and apply to all marketplace facilitators
whether they are located within or outside of Kansas.
De Minimis Threshold
Only taxable sales are included in determining whether the de minimis threshold has been
met. Sales of property or services that are exempt from tax are not included.
For purposes of determining whether a marketplace facilitator is above or below the de
minimis threshold established in New Section 2, the term "cumulative gross receipts" is used. It
is very important to note the term "cumulative gross receipts" is used only in the context of
determining whether a marketplace facilitator is above or below the de minimis threshold
established in New Section 2. The term is not used to determine whether, or to what extent, a
particular transaction is subject to Kansas sales or use tax. As used for sales and use tax purposes,
the term "gross receipts" is a term of art with a specific meaning and application.
The collection and remittance requirements established by New Section 2 apply to
marketplace facilitators with calendar year sales sourced into Kansas in excess of $100,000 of
"cumulative gross receipts". For purposes of calculating the de minimis threshold for marketplace
facilitators, "cumulative gross receipts" includes both the marketplace facilitator's sales of its own
property and services and the sales it facilitates on its platform.
Calendar Year Sales Below De Minimis Threshold
A marketplace facilitator that does not meet the $100,000 de minimis threshold is not
required to register, collect, and remit Kansas tax. However, for the benefit of their Kansas
customers they may voluntarily do so. A marketplace facilitator who chooses not to voluntarily
collect the tax should consider advising purchasers that they, the purchaser, are responsible for
paying tax directly to the state of Kansas.
Calendar Year Sales Above De Minimis Threshold - Initial Year
The statutory language of New Section 2(a)(1) makes it clear a marketplace facilitator whose
calendar year sales sourced into Kansas are in excess of $100,000 is not required to collect and
remit tax on the first $100,000 of sales made to customers in Kansas during the first year the
marketplace facilitator is required to collect and remit tax. This does not mean these sales are
exempt from tax, only that the marketplace facilitator is not required to collect the tax.
Though not required to collect tax due to the first year de minimis requirement, for the benefit
of their Kansas customers a marketplace facilitator may voluntarily collect tax on the first
$100,000 of sales during this first year. A marketplace facilitator who chooses not to voluntarily
collect the tax should consider advising purchasers that they, the purchasers, are responsible for
paying tax directly to the state of Kansas.
Calendar Year Sales Above De Minimis Threshold - Subsequent Year(s)
Once a marketplace facilitator has made sales to Kansas customers equal to or in excess of
the $100,000 threshold they must collect and remit sales tax on any additional sales to Kansas
customers. The marketplace facilitator must collect and remit sales tax on all sales made to Kansas
customers in the following year. By way of example, if a marketplace facilitator has sales to
Kansas customers in excess of $100,000 in Year One, they must collect and remit sales tax on all
sales to Kansas customers in excess of the threshold in Year One, and on all sales made to Kansas
customers during Year Two, regardless of the amount of those sales.
Calendar Year Sales Fall Below De Minimis Threshold - Subsequent Year(s)
The requirement that a marketplace facilitator collect and remit Kansas tax ends if the amount
of sales to Kansas customers falls below $100,000 in the preceding year. To continue the example,
if a marketplace facilitator has sales to Kansas customers in excess of $100,000 in Year Three, the
marketplace facilitator must collect and remit sales tax on all sales to Kansas customers during
Year Four. But, if all sales made to Kansas customers during Year Four total less than $100,000,
there is no requirement to collect and remit tax for sales made in Year Five, or any subsequent
year, until sales made in a given year exceed $100,000. If that occurs, collecting and remitting tax
would be required for all sales to Kansas customers in excess of $100,000 during that year, and
for all sales to Kansas customers during the following year.
Statutory Language
New Section 2(a) provides:
(a)(1) Any marketplace facilitator selling or facilitating the sale of property or
services subject to tax in this state shall be required to collect and remit such taxes and
follow all applicable procedures and requirements provided by law for the collection
and remittance of such taxes. A marketplace facilitator shall only be required to collect
and remit such taxes if the following criteria are satisfied during the current or
immediately preceding calendar year:
(A) The marketplace facilitator makes sales of property or services otherwise
subject to tax in the state in an amount exceeding $100,000; or
(B) if a marketplace facilitator makes or facilitates the sale of property or services
subject to tax in the state, on its own behalf or on behalf of one or more marketplace
sellers, for delivery into this state in an amount exceeding $100,000.
(2) For any marketplace facilitator who satisfies the provisions of this subsection
for sales in the current calendar year for the first time, such marketplace facilitator
shall be required to collect and remit the tax on any sales in excess of $100,000 of
cumulative gross receipts from sales in the current calendar year for delivery into this
state.
Departmental Waiver of Obligation to Collect and Remit Tax
Generally
New Section 2 of the bill authorizes the Department of Revenue to waive the obligation of a
marketplace facilitator to collect and remit taxes upon a showing by the marketplace facilitator
that substantially all of its marketplace sellers are already collecting and remitting all applicable
taxes. For purposes of obtaining a waiver from the Department, the phrase "substantially all"
means 95% or more. The bill also allows marketplace facilitators to contract with marketplace
sellers that have at least $1.0 billion of annual gross sales in the United States to require the
marketplace seller to collect and remit all applicable taxes and fees.
Statutory Language
New Section 2 (b) and (c) provide:
(b) The department may grant a waiver from the requirements of this section if a
marketplace facilitator demonstrates, to the satisfaction of the department, that
substantially all of its marketplace sellers already are collecting and remitting taxes to
the department. If such waiver is granted, the taxes levied shall be collectible from the
marketplace seller. The department shall promulgate rules and regulations that
establish:
(1) The criteria for obtaining a waiver pursuant to this section;
(2) the process and procedure for a marketplace facilitator to apply for a waiver;
and
(3) the process for providing notice to an affected marketplace facilitator and
marketplace seller of a waiver obtained pursuant to this subsection.
(c) Nothing in this section shall prohibit the marketplace facilitator and the
marketplace seller from contractually agreeing to have the marketplace seller collect
and remit all applicable taxes and fees if the marketplace seller:
(1) Has annual gross sales in the United States over $1,000,000,000, including
the gross sales of any related entities, and, in the case of franchised entities, including
the combined sales of all franchisees of a single franchisor;
(2) provides evidence to the marketplace facilitator that the marketplace seller is
registered pursuant to K.S.A. 79-3608, and amendments thereto; and
(3) notifies the department in the manner prescribed by the department that the
marketplace seller will collect and remit all applicable taxes and fees on sales through
the marketplace and is liable for failure to collect or remit applicable taxes and fees
on such sales.
Obligation to Collect and Remit Tax in Absence of Waiver
Generally
A marketplace facilitator is responsible for the collection and remittance of tax regardless of
whether the marketplace seller for whom a sale is facilitated has, or would have been required to
be, registered to collect tax if the sale had not been facilitated by the marketplace facilitator. In
this role, the marketplace facilitator has the same rights and duties as a seller. It is also subject to
audit by the Department, as any seller would be.
Statutory Language
New Section 3 provides:
(a) Except as provided in section 2(b) or (c), and amendments thereto, a
marketplace facilitator doing business in this state under section 2, and amendments
thereto, shall collect and remit the taxes on all taxable sales made by the marketplace
facilitator or facilitated for marketplace sellers to customers in this state, regardless of
whether the marketplace seller for whom sales are facilitated has registered to collect
taxes or would have been required to collect taxes if the sale had not been facilitated
by the marketplace facilitator. A marketplace facilitator has the same rights and duties
as a seller to collect and remit all such taxes. Marketplace facilitators and marketplace
sellers may enter into agreements with each other regarding fulfillment of the
requirements of this section, but the marketplace facilitator remains the party that is
liable to the state for fulfilling such requirements.
(b) A marketplace facilitator shall either:
(1) Report the tax imposed pursuant to subsection (a) separately from any taxes
collected on taxable sales made directly by the marketplace facilitator, or affiliates of
the marketplace facilitator, to customers in this state using a separate form to be
published by the department; or
(2) report the tax imposed pursuant to subsection (a) combined with any taxes
collected on taxable sales made directly by the marketplace facilitator, or affiliates of
the marketplace facilitator.
(c) No class action may be brought against a marketplace facilitator in any court
of this state on behalf of customers arising from or in any way related to an
overpayment of tax collected on sales facilitated by the marketplace facilitator,
regardless of whether that claim is characterized as a tax refund claim. Nothing in this
subsection affects a customer's right to seek a refund as provided under K.S.A. 79-
3650, and amendments thereto.
(d) Nothing in this section affects the obligation of any consumer to remit the tax
for any taxable transaction for which a marketplace facilitator or seller does not collect
and remit the tax.
(e) The department shall solely audit the marketplace facilitator for sales made
by marketplace sellers but facilitated by the marketplace facilitator, except with respect
to transactions that are subject to section 2(b) or (c), and amendments thereto. The
department shall not audit or otherwise assess tax against marketplace sellers for sales
facilitated by a marketplace facilitator except to the extent that the marketplace
facilitator seeks relief under subsection (f) or with respect to transactions that are
subject to section 2(b) or (c), and amendments thereto.
(f) A marketplace facilitator shall be relieved of liability under this section for
failure to collect and remit the correct amount of tax to the extent that the error was
due to incorrect or insufficient information on the nature of the product or service given
to the marketplace facilitator by the marketplace seller, if the marketplace facilitator
can demonstrate a reasonable effort to obtain correct and sufficient information from
the marketplace seller. This subsection shall not apply if the marketplace facilitator
and the marketplace seller are under common ownership and control.
(g) The department may waive penalties and interest if a marketplace facilitator
seeks liability relief and the department determines that reasonable cause exists.
(h) A marketplace facilitator shall be relieved of liability under this section if it
can prove, to the satisfaction of the department, that the tax levied on a sale facilitated
by the marketplace facilitator was paid to the department by the marketplace seller.
Registration
A marketplace facilitator is required to begin collecting and remitting tax on sales in excess
of the $100,000 threshold as soon as they cross the threshold. In other words, a marketplace
facilitator is required to register, collect, and remit tax on the next transaction after meeting or
exceeding the threshold.
Because each marketplace facilitator will meet or exceed the threshold at a different time,
each marketplace facilitator will establish its own date for when registration, collection, and
remittance requirements begin. It is important to note that, regardless of when registration and
remittance of tax actually occur, responsibility for collecting tax begins with the next transaction
after meeting or exceeding the threshold. By way of example, if a marketplace facilitator's first
transaction is $105,000, responsibility for collecting tax does not begin until the next transaction,
regardless of the amount of that transaction. If a marketplace facilitator has multiple transactions
that total $99,950 and then has a $100 transaction, responsibility for collecting tax does not begin
until the next transaction. And if a marketplace facilitator has multiple transactions that total
$99,950 and then has a $100,000 transaction, responsibility for collecting tax still does not begin
until the next transaction.
A marketplace facilitator should register with the Department not later than thirty (30) days
after their sales for the calendar year exceed $100,000. At the time of registration, the type of
registration (i.e. sales tax or retailers' compensating use,) will be determined. For purposes of
registration, the type of tax to be collected and remitted depends upon the location of the
marketplace facilitator. A marketplace facilitator located in Kansas (i.e. physical nexus) will
register for, collect, and remit Kansas retailers' sales tax. A marketplace facilitator located outside
of Kansas (i.e. economic nexus) will collect and remit Kansas retailers' compensating use tax.
A marketplace facilitator that makes both direct and facilitated sales may choose to report
sales separately or on one return. If sales will be reported separately it will be necessary for the
marketplace facilitator to have two accounts; one for its sales and one for facilitated sales. In
addition, each marketplace facilitator's reporting and remittance schedule will be determined,
based on the total amount of tax collected. More information regarding the registration process
and filing frequency is available in Publication KS-1510 Kansas Sales & Compensating Use Tax,
which is available through the Department's website at: www.ksrevenue.org.
As an alternative to registering directly with the Department, marketplace facilitators may
register through the Streamlined Sales Tax Registration System. Additional information is
available through their website at: https://www.streamlinedsalestax.org/for-businesses/sales-tax-
registration-sstrs
In addition to the new provisions related to marketplace facilitators, Section 14 of Senate Bill
50 also amends K.S.A. 79-3702 to repeal the "click-through" nexus provisions for affiliated
persons related to sales and use tax collections. Section 14 also amends the definition of "retailer
doing business in this state" found in K.S.A 79-3702 to establish a de minimis threshold of
$100,000 in gross sales to customers in Kansas for non-Kansas retailers. For additional
information in this regard, see Notice 21-23 Click-Through Nexus Eliminated and Notice 21-17
Remote Sellers, both of which are available through the Department's website at:
www.ksrevenue.org.
Prepaid Wireless 911 Fees
New Section 3 of Senate Bill 50 addresses the responsibilities of a marketplace facilitator
and a marketplace seller for collecting and remitting prepaid wireless 911 fees. Specifically,
subsections (d) and (e) provide:
(d) Prior to April 1, 2022, if a marketplace facilitator sells or facilitates the sale
of prepaid wireless service, the provider of such prepaid wireless service is not liable
for collection or payment of the prepaid wireless 911 fees imposed under K.S.A. 12-
5371, and amendments thereto, unless such prepaid wireless provider is a marketplace
seller collecting taxes under the provisions of a waiver granted in subsection (b).
(e) On and after April 1, 2022, any marketplace facilitator that is obligated to
collect the taxes imposed under this act, shall also collect and remit to the department
applicable prepaid wireless 911 fees imposed under K.S.A. 12-5371, and amendments
thereto.
Prepaid wireless 911 fees must be paid electronically. For more information, please go
to: https://www.ksrevenue.org/e911.html.
TAXPAYER ASSISTANCE
Additional copies of this notice, forms or publications are available from our web site,
www.ksrevenue.org. If you have questions about this Notice, please contact:
Taxpayer Assistance Center
Kansas Department of Revenue
Scott Office Building, 1st Floor
120 SE 10th Ave
P. O. Box 3506
Topeka, KS 66601-3506
Phone: 785-368-8222
Fax: 785-291-3614
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