67-6-220 - Retail sales at flea markets. - Tennessee Statutes

67-6-220. Retail sales at flea markets.

(a)  All dealers, not otherwise registered pursuant to this chapter, who sell at flea markets shall register and pay tax in one (1) of the following manners:

     (1)  (A)  Persons engaging in the business of making retail sales at flea markets may register and pay an annual registration fee of forty-five dollars ($45.00). This registration fee shall be credited against that person's actual annual sales tax liability. This registration shall be valid at any location in the state during the period for which it is issued. In the event that the annual sales tax liability is less than forty-five dollars ($45.00), then that person is not required to file an annual sales tax return, but in no event shall any person receive a refund of any portion of the registration fee; and

          (B)  Should any dealer's tax liability exceed forty-five dollars ($45.00), then such dealer shall file an annual return. The annual return shall be submitted upon forms prescribed, prepared and furnished by the commissioner of revenue showing the gross sales, or purchases, as the case may be, arising from all sales or purchases taxable under this chapter during the preceding January 1 through December 31. The annual return shall be due on or before January 20 of the subsequent calendar year. Any dealer beginning business subsequent to January 1 shall be responsible for transmitting an annual return on or before January 20 of the subsequent calendar year for all months in which the dealer made taxable sales or purchases through December 31 of the preceding year; or

     (2)  (A)  Persons engaging in the business of making retail sales at flea markets, as defined in § 67-6-102, not on a permanent basis, may, at their option, register as follows:

                (i)  On a quarterly basis for a fee of fifteen dollars ($15.00). This registration fee is to be paid per location at which retail sales are made. A person may register a maximum of three (3) times per year at each location at which the person registers. If such person is required to register in excess of three (3) times per year, then the person shall purchase an annual registration certificate. In no event shall a refund be payable from the registration fee. This registration fee shall, however, be credited against any such person's actual sales tax liability; or

                (ii)  On a monthly basis for a fee of five dollars ($5.00). This registration fee is to be paid per location at which retail sales are made. A person may register a maximum of three (3) times per year at each location at which the person registers. If such person is required to register in excess of three (3) times, then the person shall purchase either a quarterly or an annual registration certificate. In no event shall a refund be payable from the registration fee. This registration fee shall, however, be credited against any such person's actual sales tax liability; and

          (B)  Dealers registering on a quarterly or monthly basis shall file quarterly returns if their tax liability exceeds the amount of the registration fees paid during that quarter. The quarterly returns shall be submitted upon forms prescribed, prepared and furnished by the commissioner, showing the gross sales, or purchases, as the case may be, arising from all sales or purchases taxable under this chapter during the preceding quarter. The quarterly return shall be due on or before the twentieth day of the subsequent month following the last day of the preceding quarterly period.

(b)  At the time of transmitting any of the returns as required under subsection (a) to the commissioner, the dealer shall remit to the commissioner therewith the amount of tax due, and failure to so remit such tax or to file such return shall cause the tax to become delinquent. The failure to so remit such tax or to file such return shall subject the dealer to the penalty otherwise provided in this title for delinquent tax payments to the commissioner.

(c)  (1)  The flea market operator shall be responsible for ensuring that all dealers operating at the operator's flea market are properly registered with the department. The flea market operator shall be empowered to accept applications for registration as required under subdivisions (a)(1) and (2) from dealers not otherwise registered, together with all fees required thereunder. The flea market operator shall supply the dealer with a copy of the application for registration, together with evidence of the amount of fee submitted. This copy shall be displayed by the dealer and shall serve as evidence of proper registration.

     (2)  The flea market operator shall submit the fees collected under this section on such operator's monthly return. The applications collected shall be transmitted to the commissioner, together with such operator's monthly return. Tax returns and payments shall be due and payable by flea market operators in the manner set out in § 67-6-504. The failure to so remit such tax or to file such return shall subject the flea market operator to the penalty otherwise provided in this title for delinquent tax payments to the commissioner.

(d)  There shall be a penalty upon the dealer of ten dollars ($10.00) per booth per day for violations of subsections (a)-(c). The department may also impose a penalty upon the flea market operator of ten dollars ($10.00) per booth per day, up to a maximum fine of one hundred dollars ($100) per day at any location where it is determined by the commissioner that the flea market operator has been negligent in allowing dealers to operate at the flea market without proper registration. For the purposes of this subsection (d), “negligent” includes, but is not limited to, any failure of the flea market operator to make a reasonable attempt to ensure that every dealer renting space from the operator is properly registered for tax purposes. A determination by the commissioner that a flea market operator has been negligent shall be deemed presumptively correct. Such determination may be rebutted only if the flea market operator makes a showing of due care. As used in this subsection (d), “due care” means that the flea market operator has made every reasonable effort to ensure that every dealer renting space from the operator is properly registered for tax purposes.

(e)  The provisions of this section do not apply to dealers who sell prepared foods at flea markets for consumption.

[Acts 1988, ch. 572, § 2.]