During this legislative session, the General Assembly passed a few bills of particular municipal interest. It is worth noting that this session appeared to have multiple omnibus bills that potentially warrant further review regarding if each was passed in accordance with the Missouri Constitution (such as the single-subject rule or clear title rule). Overall, the following are bills of particular municipal interest:
SBs 153 & 97 – Wayfair & Video Services Provider Fees:
Designed to implement the United States Supreme Court’s opinion in South Dakota v. Wayfair, Inc., which changed the “nexus” requirement for taxation, allowing states’ taxes to attach to entities that shipped goods into states but may not otherwise have a physical business presence within that state.
Allows for the expansion of use taxes to attach to additional transactions, specifically if a “seller’s gross receipts from taxable sales from delivery of tangible personal property into this state in the previous calendar year or current calendar year exceeds one hundred thousand dollars.” See § 144.605(2)(e) RSMo.
If your city has an existing use tax, you must comply with the following:
No later than the first week of November, 2021 you must publish a notice in the newspaper “with the greatest circulation . . . that certain purchases from out-of-state vendors will become subject to an expansion of the use tax as provided by state law.” This notice must also include “general information on repealing a local use tax under section 144.761.” Finally, this notice must be published at least once per week for two consecutive weeks.
Both newspaper notices should be published prior to the first week of November 2021, if possible.
Cities with a use tax are also required to submit to the Department of Revenue by January 1, 2022, “data relating to use taxes” which would include revenue mapping and the geographic boundaries of the city. If a city does not submit this information, the Department of Revenue will use “the last known sales or use tax rate for such political subdivision[,]” which could affect how much use tax your city receives. See SBs 153 & 97, Page 2-3, amending Section 32.310 RSMo.
If your city does not have a use tax, but seeks to, you must comply with the following:
Place on the ballot and receive voter approval for the city toimpose a use tax. See SBs 153 & 97, page 164, amending Section 144.757.1(1) for revised ballot language for the same.
Note, these bills limit how a city may propose to educate the public about the use tax. Specifically, SBs 153 & 97 provide: “[t]he use tax shall not be described as a new tax or as not a new tax and shall not be advertised or promoted in a manner in violation of section 115.646.” This adds some complexity as to how a city would provide effective education relating to the use tax.
If you are seeking to pass a use tax, we recommend you consult your city attorney regarding any education on the use tax that you propose to produce.
Video Services Provider Fees:
As a trade-off for Wayfair, SBs 153 & 97 also contain cuts to video service provider fees, particularly by:
Changing the definition of “gross revenues” to exclude items like amounts received from advertisers, as well as fees that traditionally stem from video service providers (such as set-top box rentals);
Cutting the existing cap on video service provider fees. At present, video service provider fees are capped at 5% of gross revenues. Under these bills, the cap will reduce by 0.5% each year, beginning August 28, 2023, and ending at a maximum cap of 2.5% by August 28, 2027; and
Limiting cities from passing “any new tax, license, or fee in addition to any tax, license, or fee already authorized on or before August 28, 2021, upon the provision of satellite or streaming video service[,]” likely foreclosing the ability of cities to pass new taxes, fees, or licenses to attach to services such as Netflix or Hulu.
HB 271 – Changes to Linear Foot Fee Authority; Changes to Candidate Filing Timeframes, among other items:
If your city has authority under § 67.1846 RSMo. to charge a linear foot fee, HB 271 attempts to further limit your authority to charge a linear foot fee as it relates to “telecommunications companies” defined by § 386.020 RSMo.
Also, this bill changes the candidate filing period from an opening of 16 Tuesdays before and a closing of 11 Tuesdays before the election to an opening of 17 Tuesdays before and a closing of 14 Tuesdays before the election.
HB 362 amended the Sunshine Law to outline when record requests are withdrawn. Specifically, HB 362 (amending § 610.026.2 RSMo.) provides that a request for public records:
“Shall be considered withdrawn if the requester fails to remit all fees within thirty days of a request for payment of the fees by the public governmental body, prior to the making of copies. If the same or a substantially similar request for public records is made within six months after the expiration of the thirty day period, then the public governmental body may request payment of the same fees made for the original request that has expired in addition to any allowable fees necessary to fulfill the subsequent request.”
This amendment provides clarity for cities with “zombie” or lingering record requests that stay open for months after a city provides an estimate of the fees for researching and copying, and a requester goes silent. This change in the law makes it conclusive that a city can close out those files and treat them as withdrawn for purposes of the Sunshine law, and if the same of similar request is made within 6 months, the city can require payment of the fees for the original request and any additional, allowable fees.
HB 362 also provides the following new exceptions under § 610.021 to close meetings and/or records. Those wholly new exceptions are:
“(25) Email addresses and telephone numbers submitted to a public governmental body by individuals or entities for the sole purpose of receiving electronic or other communications limited to newsletters, notifications, advisories, alerts, and periodic reports;” and
“(26) Individually identifiable customer usage and billing records for customers of a municipally owned utility unless the records are requested by the customer or authorized for release by the customer, except that a municipally owned utility shall make available to the public the customer's name, billing address, location of service, and dates of service provided for any commercial service account.”
The created exception in subsection 25 protects emails and telephone numbers provided for communication from cities by authorizing cities to now close these records. It should be noted that the exception created in subsection 26 would only apply to cities with municipally owned utilities. Additionally, HB 362 provides amendments to subsection 19 of § 610.021, which amended text (underlined) reads as follows:
“(19) Existing or proposed security systems or procedures and structural plans of real property owned or leased by a public governmental body including, but not limited to, evacuation and lockdown procedures for the buildings on such real property, and information that is voluntarily submitted by a nonpublic entity owning or operating an infrastructure to any public governmental body for use by that body to devise plans for protection of that infrastructure including, but not limited to, software or surveillance companies that secure access to such buildings, the public disclosure of which would threaten public safety: . . .”
Please note, these summaries are not exhaustive, and you should consult with your city attorney if you have additional questions regarding the full text of the legislation.