HB 97: "An Act relating to theft; relating to organized retail theft; relating to property crimes; relating to aggravating factors at sentencing; establishing a statewide marketplace facilitator sales tax; and establishing the organized retail theft fund in the general fund."
00 HOUSE BILL NO. 97 01 "An Act relating to theft; relating to organized retail theft; relating to property crimes; 02 relating to aggravating factors at sentencing; establishing a statewide marketplace 03 facilitator sales tax; and establishing the organized retail theft fund in the general fund." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 11.46.100 is amended to read: 06 Sec. 11.46.100. Theft defined. A person commits theft if 07 (1) with intent to deprive another of property or to appropriate property 08 of another to oneself or a third person, the person obtains the property of another; 09 (2) the person commits theft of lost or mislaid property under 10 AS 11.46.160; 11 (3) the person commits theft by deception under AS 11.46.180; 12 (4) the person commits theft by receiving under AS 11.46.190; 13 (5) the person commits theft of services under AS 11.46.200; [OR] 14 (6) the person commits theft by failure to make required disposition of
01 funds received or held under AS 11.46.210; or 02 (7) the person commits organized retail theft under AS 11.46.215. 03 * Sec. 2. AS 11.46.120(a) is amended to read: 04 (a) A person commits the crime of theft in the first degree if the person 05 commits theft as defined in AS 11.46.100 and the value or aggregate value of the 06 property or services is $20,000 [$25,000] or more. 07 * Sec. 3. AS 11.46.130(a) is amended to read: 08 (a) A person commits the crime of theft in the second degree if the person 09 commits theft as defined in AS 11.46.100 and 10 (1) the value or aggregate value of the property or services is $500 11 [$750] or more but less than $20,000 [$25,000]; 12 (2) the property is a firearm or explosive; 13 (3) the property is taken from the person of another; 14 (4) the property is taken from a vessel and is vessel safety or survival 15 equipment; 16 (5) the property is taken from an aircraft and the property is aircraft 17 safety or survival equipment; 18 (6) the value or aggregate value of the property is $200 [$250] or 19 more but less than $500 [$750] and, within the preceding five years, the person has 20 been convicted and sentenced on two or more separate occasions in this or another 21 jurisdiction of 22 (A) an offense under AS 11.46.120, or an offense under 23 another law or ordinance with similar elements; 24 (B) a crime set out in this subsection or an offense under 25 another law or ordinance with similar elements; 26 (C) an offense under AS 11.46.140(a)(1), or an offense under 27 another law or ordinance with similar elements; or 28 (D) an offense under AS 11.46.220(c)(1) or (c)(2)(A), or an 29 offense under another law or ordinance with similar elements; or 30 (7) the property is an access device or identification document. 31 * Sec. 4. AS 11.46.140(a) is amended to read:
01 (a) A person commits the crime of theft in the third degree if the person 02 commits theft as defined in AS 11.46.100 and 03 (1) the value or aggregate value of the property or services is $200 04 [$250] or more but less than $500 [$750]; or 05 (2) [REPEALED] 06 (3) [REPEALED] 07 (4) the value or aggregate value of the property is less than $200 08 [$250] and, within the preceding five years, the person has been convicted and 09 sentenced on three or more separate occasions in this or another jurisdiction of theft or 10 concealment of merchandise, or an offense under another law or ordinance with 11 similar elements. 12 * Sec. 5. AS 11.46.150(a) is amended to read: 13 (a) A person commits the crime of theft in the fourth degree if the person 14 commits theft as defined in AS 11.46.100 and the value or aggregate value of the 15 property or services is less than $200 [$250]. 16 * Sec. 6. AS 11.46 is amended by adding a new section to read: 17 Sec. 11.46.215. Organized retail theft. A person commits organized retail 18 theft if, in the state, as part of a coordinated plan to deprive a commercial 19 establishment of merchandise on two or more occasions or as part of a coordinated 20 plan to deprive multiple commercial establishments of merchandise over a one-year 21 period, a person, with one or more conspirators, 22 (1) takes possession of merchandise with the intent to convert the 23 merchandise without paying for the merchandise; 24 (2) conceals merchandise with the intent to convert the merchandise 25 without paying for the merchandise; 26 (3) alters a label or a price tag, or marks the merchandise with the 27 intent of depriving a commercial establishment of all or some of the value of the 28 merchandise; or 29 (4) transfers merchandise from a container in or on which the 30 merchandise is displayed to another container with the intent of depriving the 31 commercial establishment of all or some of the value of the merchandise.
01 * Sec. 7. AS 11.46.220(c) is amended to read: 02 (c) Concealment of merchandise is 03 (1) a class C felony if 04 (A) the merchandise is a firearm; 05 (B) the value of the merchandise is $500 [$750] or more; or 06 (C) the value of the merchandise is $200 [$250] or more but 07 less than $500 [$750] and, within the preceding five years, the person has been 08 convicted and sentenced on two or more separate occasions in this or another 09 jurisdiction of 10 (i) the offense of concealment of merchandise under 11 this paragraph or (2)(A) of this subsection, or an offense under another 12 law or ordinance with similar elements; or 13 (ii) an offense under AS 11.46.120, 11.46.130, [OR] 14 11.46.140(a)(1), or 11.46.215, or an offense under another law or 15 ordinance with similar elements; 16 (2) a class A misdemeanor if 17 (A) the value of the merchandise is $200 [$250] or more but 18 less than $500 [$750]; or 19 (B) [REPEALED] 20 (C) the value of the merchandise is less than $200 [$250] and, 21 within the preceding five years, the person has been convicted and sentenced 22 on three or more separate occasions of the offense of concealment of 23 merchandise or theft in any degree, or an offense under another law or 24 ordinance with similar elements; 25 (3) a class B misdemeanor if the value of the merchandise is less than 26 $200 [$250]. 27 * Sec. 8. AS 11.46.260(b) is amended to read: 28 (b) Removal of identification marks is 29 (1) a class C felony if the value of the property on which the serial 30 number or identification mark appeared is $500 [$750] or more; 31 (2) a class A misdemeanor if the value of the property on which the
01 serial number or identification mark appeared is $200 [$250] or more but less than 02 $500 [$750]; 03 (3) a class B misdemeanor if the value of the property on which the 04 serial number or identification mark appeared is less than $200 [$250]. 05 * Sec. 9. AS 11.46.270(b) is amended to read: 06 (b) Unlawful possession is 07 (1) a class C felony if the value of the property on which the serial 08 number or identification mark appeared is $500 [$750] or more; 09 (2) a class A misdemeanor if the value of the property on which the 10 serial number or identification mark appeared is $200 [$250] or more but less than 11 $500 [$750]; 12 (3) a class B misdemeanor if the value of the property on which the 13 serial number or identification mark appeared is less than $200 [$250]. 14 * Sec. 10. AS 11.46.280(d) is amended to read: 15 (d) Issuing a bad check is 16 (1) a class B felony if the face amount of the check is $20,000 17 [$25,000] or more; 18 (2) a class C felony if the face amount of the check is $500 [$750] or 19 more but less than $20,000 [$25,000]; 20 (3) a class A misdemeanor if the face amount of the check is $200 21 [$250] or more but less than $500 [$750]; 22 (4) a class B misdemeanor if the face amount of the check is less than 23 $200 [$250]. 24 * Sec. 11. AS 11.46.285(b) is amended to read: 25 (b) Fraudulent use of an access device or identification document is 26 (1) a class B felony if the value of the property or services obtained is 27 $20,000 [$25,000] or more; 28 (2) a class C felony if the value of the property or services obtained is 29 $75 or more but less than $20,000 [$25,000]; 30 (3) a class A misdemeanor if the value of the property or services 31 obtained is less than $75.
01 * Sec. 12. AS 11.46.360(a) is amended to read: 02 (a) A person commits the crime of vehicle theft in the first degree if, having 03 no right to do so or any reasonable ground to believe the person has such a right, the 04 person drives, tows away, or takes 05 (1) the car, truck, motorcycle, motor home, bus, aircraft, or watercraft 06 of another; 07 (2) the propelled vehicle of another and 08 (A) the vehicle or any other property of another is damaged in a 09 total amount of $500 [$750] or more; 10 (B) the owner incurs reasonable expenses as a result of the loss 11 of use of the vehicle [,] in a total amount of $500 [$750] or more; or 12 (C) the owner is deprived of the use of the vehicle for seven 13 days or more; 14 (3) the propelled vehicle of another and the vehicle is marked as a 15 police or emergency vehicle; or 16 (4) the propelled vehicle of another and, within the preceding seven 17 years, the person was convicted under 18 (A) this section or AS 11.46.365; 19 (B) former AS 11.46.482(a)(4) or (5); 20 (C) former AS 11.46.484(a)(2); 21 (D) AS 11.46.120 - 11.46.140 of an offense involving the theft 22 of a propelled vehicle; or 23 (E) a law or ordinance of this or another jurisdiction with 24 elements substantially similar to those of an offense described in (A) - (D) of 25 this paragraph. 26 * Sec. 13. AS 11.46.482(a) is amended to read: 27 (a) A person commits the crime of criminal mischief in the third degree if, 28 having no right to do so or any reasonable ground to believe the person has such a 29 right, 30 (1) with intent to damage property of another, the person damages 31 property of another in an amount of $500 [$750] or more;
01 (2) the person recklessly creates a risk of damage in an amount 02 exceeding $100,000 to property of another by the use of widely dangerous means; or 03 (3) the person knowingly 04 (A) defaces, damages, or desecrates a cemetery or the contents 05 of a cemetery or a tomb, grave, or memorial regardless of whether the tomb, 06 grave, or memorial is in a cemetery or whether the cemetery, tomb, grave, or 07 memorial appears to be abandoned, lost, or neglected; 08 (B) removes human remains or associated burial artifacts from 09 a cemetery, tomb, grave, or memorial regardless of whether the cemetery, 10 tomb, grave, or memorial appears to be abandoned, lost, or neglected; 11 (C) defaces or damages real property that 12 (i) has a place of religious education or worship located 13 on it; and 14 (ii) if leased or used by a religious organization and is 15 part of a larger property, is the part of the property leased or used by 16 the religious organization, including the access to the entry of that part 17 of the property; or 18 (D) defaces or damages tangible personal property that has 19 religious significance and is used by a religious organization or displayed for 20 educational purposes. 21 * Sec. 14. AS 11.46.530(b) is amended to read: 22 (b) Criminal simulation is 23 (1) a class C felony if the value of what the object purports to represent 24 is $500 [$750] or more; 25 (2) a class A misdemeanor if the value of what the object purports to 26 represent is $200 [$250] or more but less than $500 [$750]; 27 (3) a class B misdemeanor if the value of what the object purports to 28 represent is less than $200 [$250]. 29 * Sec. 15. AS 11.46.620(d) is amended to read: 30 (d) Misapplication of property is 31 (1) a class C felony if the value of the property misapplied is $500
01 [$750] or more; 02 (2) a class A misdemeanor if the value of the property misapplied is 03 less than $500 [$750]. 04 * Sec. 16. AS 11.46.980(e) is amended to read: 05 (e) In determining the degree or classification of a crime under this chapter, if 06 the combined value of the property or services taken from one or more persons or 07 commercial establishments within a period of 180 days is $500 [$750] or more but 08 less than $20,000 [$25,000], the value may be aggregated. 09 * Sec. 17. AS 11.46.990 is amended by adding new paragraphs to read: 10 (15) "aggregate value" means the total value of merchandise taken, 11 concealed, altered, or transferred from any commercial establishment over the course 12 of one calendar year; 13 (16) "commercial establishment" means a person or business that sells 14 goods to the public for use or consumption rather than for resale. 15 * Sec. 18. AS 12.55.155(c) is amended by adding a new paragraph to read: 16 (38) the offense was one of a continuing series of criminal offenses 17 that qualify as organized retail theft. 18 * Sec. 19. AS 43 is amended by adding a new chapter to read: 19 Chapter 72. Marketplace Facilitator Sales Tax. 20 Sec. 43.72.010. Levy of sales tax. A sales tax of two percent is levied on the 21 annual gross sales of the sale of property or services delivered in the state by a 22 marketplace facilitator. A sale by or to the United States or an entity that is exempt 23 from federal taxation under 26 U.S.C. 501(c)(3) (Internal Revenue Code) is exempt 24 from the tax imposed under this chapter. 25 Sec. 43.72.020. Collection of sales tax by marketplace facilitators; physical 26 presence. (a) The tax described in AS 43.72.010 is imposed on the purchaser. The 27 marketplace facilitator shall collect the tax and pay the tax to the department. A 28 marketplace facilitator shall hold all taxes collected in trust for the state. A 29 marketplace facilitator shall apply the tax to the sales price. 30 (b) The marketplace facilitator is not required to collect and remit taxes to the 31 department unless, in the previous calendar year, the
01 (1) marketplace facilitator's gross sales revenue from the sale of 02 property or services delivered in the state met or exceeded $250,000; or 03 (2) marketplace facilitator made 200 or more separate sales of property 04 or services delivered in the state. 05 (c) A marketplace facilitator shall register with the department if it satisfies 06 the conditions of (b)(1) or (2) of this section. 07 (d) A marketplace facilitator who does not have a physical presence in the 08 state is subject to the provisions of this chapter and shall remit the sales tax levied 09 under AS 43.72.010 if the marketplace facilitator satisfies one of the requirements 10 under (b) of this section and conducts sales through an online marketplace and 11 delivery is located within the state. 12 Sec. 43.72.030. Liability for payment of tax. (a) Liability for the payment of 13 a tax imposed under this chapter is not extinguished until the taxes have been paid to 14 the department. 15 (b) A marketplace facilitator is liable for the tax due under this chapter and 16 may be required to furnish adequate security as provided in AS 43.72.080 to ensure 17 collection and payment of the taxes. 18 Sec. 43.72.040. Method of accounting. A person who is a marketplace 19 facilitator shall report and pay the tax due under this chapter using the same method of 20 accounting that the person uses for federal tax purposes. 21 Sec. 43.72.050. Returns; payment. A marketplace facilitator responsible for 22 collecting the sales tax due under AS 43.72.020 shall file a return on a form or in a 23 format prescribed by the department and pay the tax to the department. The 24 marketplace facilitator shall file the return and pay the tax on or before the last day of 25 the month following the month for which the tax is due. 26 Sec. 43.72.060. Methods. (a) The department shall adopt regulations providing 27 a rounding method for payment of a tax imposed under this chapter. 28 (b) The department may use sampling principles or methods instead of 29 examining 100 percent of records in conducting an audit of a return filed under 30 AS 43.72.050. 31 Sec. 43.72.070. Deduction for bad debts. (a) A marketplace facilitator filing a
01 return under AS 43.72.050 may deduct sales found to be worthless. The bad debt may 02 be deducted when it 03 (1) is written off as uncollectable in the person's books and records; 04 and 05 (2) qualifies as a deduction for federal income tax purposes under 26 06 U.S.C. (Internal Revenue Code). 07 (b) If the amount of bad debt exceeds the amount of taxable sales or leases 08 during the period that the bad debt is written off, a marketplace facilitator may file a 09 refund claim with the department. 10 (c) If a bad debt deducted under (a) of this section is later collected, the 11 marketplace facilitator who claimed the deduction shall pay the tax levied under 12 AS 43.72.020 on the amount collected. For purposes of this section, a payment made 13 on a debt or account is applied first to the sales price of the property or service, then to 14 interest, service charges, and any other charges. 15 Sec. 43.72.080. Security: limitations; sale of security deposit at auction; 16 bond. (a) The department may require a marketplace facilitator to deposit with the 17 department security in a form and amount that the department determines is 18 appropriate. The deposit may not be more than twice the estimated average tax 19 liability under this chapter for the period for which the return is required under 20 AS 43.72.050 to be filed or $10,000, whichever is less. The department may increase 21 or decrease the amount of security, subject to the limitations provided in this section. 22 (b) The department may sell at public auction property deposited as security to 23 recover a tax amount required to be collected under this chapter, including interest and 24 penalties. Notice of the sale must be sent at least 30 days before the sale by certified 25 mail to the last known address of the person who deposited the security. After the sale, 26 any surplus above the amount due that is not required as security under this section 27 must be returned to the person who deposited the security. 28 (c) Instead of security, the department may require a marketplace facilitator to 29 file a bond to guarantee solvency and responsibility issued by a surety company 30 authorized to transact business in this state. 31 (d) In addition to the other requirements of this section, the department may
01 require the corporate officers, directors, or shareholders of a marketplace facilitator 02 corporation to provide a personal guaranty and assumption of liability for the payment 03 of the tax due under this chapter. 04 Sec. 43.72.090. Quitting business; liability of successor. (a) Within 10 days 05 after a marketplace facilitator quits business, sells, exchanges, or otherwise transfers 06 the business, or disposes of the complete stock of goods of the business, the 07 marketplace facilitator shall file a return and pay the taxes due under this chapter. 08 (b) Except as provided in (d) of this section, a successor in a business or stock 09 of goods is liable for the payment of the full amount of tax and shall withhold from the 10 sales price payable to the predecessor a sum sufficient to pay any tax due until the 11 predecessor produces either a receipt from the department showing payment in full of 12 any tax due or a statement from the department that tax is not due. 13 (c) If a tax is due but has not been paid as provided in (a) of this section, the 14 successor is liable for the payment of the full amount of tax. The payment of the tax 15 by the successor is considered to be a payment on the sales price and, if the payment is 16 greater in amount than the sales price, the amount of the difference becomes a debt 17 due to the successor from the taxpayer owing the tax under (a) of this section. 18 (d) A successor is not liable for any tax due under this section if the successor 19 gives written notice to the department of the acquisition and the department does not 20 issue an assessment against the predecessor within six months after receipt of the 21 notice from the successor. If the department issues an assessment and a copy of the 22 assessment is not mailed to the successor, the successor is not liable for the tax due. 23 (e) In this section, "predecessor" means a marketplace facilitator that quits 24 business, sells, exchanges, or otherwise transfers the business, or disposes of the 25 complete stock of goods of the business. 26 Sec. 43.72.100. Tax as debt. (a) The tax imposed by this chapter and related 27 interest and penalties become a personal debt of a marketplace facilitator required to 28 file a return under AS 43.72.050 or a person required by the department to personally 29 guarantee the payment of taxes under this chapter from the time the liability arises, 30 regardless of when the time for payment of the liability occurs. 31 (b) If the personal representative of an estate has voluntarily distributed the
01 assets held in that capacity without reserving sufficient assets to pay the taxes due 02 under this chapter and interest and penalties resulting from taxes due under this 03 chapter, the personal representative is personally liable for the taxes, interest, and 04 penalties, to the extent permitted under AS 13.16. 05 (c) An officer or employee of a marketplace facilitator whose duty it is to 06 collect, truthfully account for, and pay to the state the taxes imposed by this chapter 07 and who fails to pay the taxes is liable to the state for the taxes imposed by this 08 chapter and the penalty and interest due on the taxes. 09 Sec. 43.72.110. Organized retail theft fund. (a) The organized retail theft 10 fund is established in the general fund. The legislature may appropriate the tax 11 collected under AS 43.72.010 to the organized retail theft fund. The legislature may 12 appropriate money in the fund to law enforcement agencies to investigate and 13 prosecute organized retail theft under AS 11.46.215 and related fraud and property 14 crimes. 15 (b) The fund is not a dedicated fund. Money in the fund does not lapse and 16 remains available for appropriation in successive fiscal years. 17 Sec. 43.72.900. Definitions. In this chapter, 18 (1) "law enforcement agency" means a public agency that performs as 19 one of its principal functions an activity relating to crime prevention, control, or 20 reduction or relating to the enforcement of criminal law; "law enforcement agency" 21 does not include a court; 22 (2) "marketplace facilitator" means a person who contracts with a 23 third-party seller to facilitate the sale of the third-party seller's property, product, or 24 services through a physical retail location or online marketplace operated by the 25 person, and engages 26 (A) directly or indirectly by 27 (i) transmitting or otherwise communicating the offer or 28 acceptance between the buyer and the third-party seller; 29 (ii) owning or operating the electronic, physical, or 30 technological infrastructure that brings the buyer and the third-party 31 seller together;
01 (iii) providing a virtual currency that buyers are allowed 02 or required to use to purchase products from the third-party seller; or 03 (iv) software development or research and development 04 activities related to any of the activities described in (i) - (iii) of this 05 subparagraph, if the activities are directly related to a physical or 06 electronic marketplace operated by the person or an affiliated person; 07 and 08 (B) in one or more of the following activities with respect to 09 the third-party seller's product: 10 (i) payment processing services; 11 (ii) fulfillment or storage services; 12 (iii) listing products for sale; 13 (iv) setting prices; 14 (v) branding sales as the marketplace facilitator; 15 (vi) taking orders; 16 (vii) advertising or promotion; or 17 (viii) providing customer service or accepting or 18 assisting with returns or exchanges; 19 (3) "online marketplace" means a consumer-directed, electronically 20 based or electronically accessed platform that 21 (A) allows, facilitates, or enables third-party sellers to sell, 22 purchase, pay for, store, ship, or deliver a consumer product; 23 (B) is used by one or more third-party sellers; and 24 (C) has a contractual or similar relationship with consumers 25 that governs consumer use of the platform to purchase consumer products; 26 (4) "resident" means a natural person domiciled in the state; 27 (5) "third-party seller" means a person who sells, offers to sell, or 28 contracts to sell a consumer product through an online marketplace; "third-party 29 seller" does not include a person who operates an online marketplace or has an 30 ongoing contractual relationship with an online marketplace to provide manufacturing, 31 distribution, wholesaling, or fulfillment of consumer product orders for the online
01 marketplace. 02 * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 APPLICABILITY. (a) The following sections apply to offenses committed on or after 05 the effective date of those sections: 06 (1) AS 11.46.120(a), as amended by sec. 2 of this Act; 07 (2) AS 11.46.130(a), as amended by sec. 3 of this Act; 08 (3) AS 11.46.140(a), as amended by sec. 4 of this Act; 09 (4) AS 11.46.150(a), as amended by sec. 5 of this Act; 10 (5) AS 11.46.220(c), as amended by sec. 7 of this Act; 11 (6) AS 11.46.260(b), as amended by sec. 8 of this Act; 12 (7) AS 11.46.270(b), as amended by sec. 9 of this Act; 13 (8) AS 11.46.280(d), as amended by sec. 10 of this Act; 14 (9) AS 11.46.285(b), as amended by sec. 11 of this Act; 15 (10) AS 11.46.360(a), as amended by sec. 12 of this Act; 16 (11) AS 11.46.482(a), as amended by sec. 13 of this Act; 17 (12) AS 11.46.530(b), as amended by sec. 14 of this Act; 18 (13) AS 11.46.620(d), as amended by sec. 15 of this Act; and 19 (14) AS 11.46.980(e), as amended by sec. 16 of this Act. 20 (b) AS 43.72.010, added by sec. 19 of this Act, applies to the taxation of goods 21 purchased on or after the effective date of this Act.