2012 -- S 2049

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LC00232

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

____________

A N A C T

RELATING TO TAXATION - SALES AND USE TAXES

     Introduced By: Senators Paiva Weed, DiPalma, Ottiano, Bates, and Felag

     Date Introduced: January 11, 2012

     Referred To: Senate Finance

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 44-18-7, 44-18-8, 44-18-12, 44-18-15, 44-18-20, 44-18-21, 44-18-

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22, 44-18-23, and 44-18-25 of the General Laws in Chapter 44-18 entitled "Sales and Use Taxes -

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Liability and Computation" are hereby amended to read as follows:

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     44-18-7. Sales defined. -- "Sales" means and includes:

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      (1) Any transfer of title or possession, exchange, barter, lease, or rental, conditional or

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otherwise, in any manner or by any means of tangible personal property for a consideration.

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     "Transfer of possession", "lease", or "rental" includes transactions found by the tax

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administrator to be in lieu of a transfer of title, exchange, or barter.

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     (2) The producing, fabricating, processing, printing, or imprinting of tangible personal

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property for a consideration for consumers who furnish either directly or indirectly the materials

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used in the producing, fabricating, processing, printing, or imprinting.

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     (3) The furnishing and distributing of tangible personal property for a consideration by

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social, athletic, and similar clubs and fraternal organizations to their members or others.

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     (4) The furnishing, preparing, or serving for consideration of food, meals, or drinks,

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including any cover, minimum, entertainment, or other charge in connection therewith.

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     (5) A transaction whereby the possession of tangible personal property is transferred, but

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the seller retains the title as security for the payment of the price.

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     (6) Any withdrawal, except a withdrawal pursuant to a transaction in foreign or interstate

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commerce, of tangible personal property from the place where it is located for delivery to a point

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in this state for the purpose of the transfer of title or possession, exchange, barter, lease, or rental,

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conditional or otherwise, in any manner or by any means whatsoever, of the property for a

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consideration.

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     (7) A transfer for a consideration of the title or possession of tangible personal property,

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which has been produced, fabricated, or printed to the special order of the customer, or any

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publication.

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     (8) The furnishing and distributing of electricity, natural gas, artificial gas, steam,

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refrigeration, and water.

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     (9) (i) The furnishing for consideration of intrastate, interstate and international

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telecommunications service sourced in this state in accordance with subsections 44-18.1(15) and

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(16) and all ancillary services, any maintenance services of telecommunication equipment other

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than as provided for in subdivision 44-18-12(b)(ii). For the purposes of chapters 18 and 19 of his

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title only, telecommunication service does not include service rendered using a prepaid telephone

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calling arrangement.

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     (ii) Notwithstanding the provisions of paragraph (i) of this subdivision, in accordance

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with the Mobile Telecommunications Sourcing Act (4 U.S.C. sections 116 -- 126), subject to the

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specific exemptions described in 4 U.S.C. section 116(c), and the exemptions provided in

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sections 44-18-8 and 44-18-12, mobile telecommunications services that are deemed to be

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provided by the customer's home service provider are subject to tax under this chapter if the

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customer's place of primary use is in this state regardless of where the mobile

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telecommunications services originate, terminate or pass through. Mobile telecommunications

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services provided to a customer, the charges for which are billed by or for the customer's home

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service provider, shall be deemed to be provided by the customer's home service provider.

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     (10) The furnishing of service for transmission of messages by telegraph, cable, or radio

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and the furnishing of community antenna television, subscription television, and cable television

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services.

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     (11) The rental of living quarters in any hotel, rooming house, or tourist camp.

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     (12) The transfer for consideration of prepaid telephone calling arrangements and the

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recharge of prepaid telephone calling arrangements sourced to this state in accordance with

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sections 44-18.1-11 and 44-18.1-15. "Prepaid telephone calling arrangement" means and includes

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prepaid calling service and prepaid wireless calling service.

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     (13) The furnishing of package tour and scenic and sightseeing transportation services as

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set forth in the 2007 North American Industrial Classification System codes 561520 and 487

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provided that such services are conducted in the state, in whole or in part. Said services include

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all activities engaged in for other persons for a fee, retainer, commission, or other monetary

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charge, which activities involve the performance of a service as distinguished from selling

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property.

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     (14) (13) The sale, storage, use or other consumption of over-the-counter drugs as

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defined in paragraph 44-18-7.1(h)(ii).

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     (15) (14) The sale, storage, use or other consumption of prewritten computer software

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delivered electronically or by load and leave as defined in paragraph 44-18-7.1(v).

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     (16) (15) The sale, storage, use or other consumption of medical marijuana as defined in

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section 21-28.6-3.

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     44-18-8. Retail sale or sale at retail defined. -- A "retail sale" or "sale at retail" means

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any sale, lease or rentals of tangible personal property, or prewritten computer software delivered

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electronically or by load and leave, and/or package tour and scenic and sightseeing transportation

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services for any purpose other than resale, sublease or subrent in the regular course of business.

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The sale of tangible personal property to be used for purposes of rental in the regular course of

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business is considered to be a sale for resale. In regard to telecommunications service as defined

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in section 44-18-7(9), retail sale does not include the purchase of telecommunications service by

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a telecommunications provider from another telecommunication provider for resale to the

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ultimate consumer; provided, that the purchaser submits to the seller a certificate attesting to the

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applicability of this exclusion, upon receipt of which the seller is relieved of any tax liability for

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the sale.

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     44-18-12. "Sale price" defined. -- (a) "Sales price" applies to the measure subject to

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sales tax and means the total amount of consideration, including cash, credit, property, and

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services, for which personal property or services are sold, leased, or rented, valued in money,

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whether received in money or otherwise, without any deduction for the following:

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     (i) The seller's cost of the property sold;

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     (ii) The cost of materials used, labor or service cost, interest, losses, all costs of

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transportation to the seller, all taxes imposed on the seller, and any other expense of the seller;

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     (iii) Charges by the seller for any services necessary to complete the sale, other than

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delivery and installation charges;

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     (iv) Delivery charges, as defined in section 44-18-7.1(i); or

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     (v) Credit for any trade-in, as determined by state law. ;

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     (vi) The amount charged for package tour and scenic and sightseeing transportation

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services; or

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     (b) "Sales price" shall not include:

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     (i) Discounts, including cash, term, or coupons that are not reimbursed by a third party

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that are allowed by a seller and taken by a purchaser on a sale;

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     (ii) The amount charged for labor or services, except for package tours and scenic and

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sightseeing transportation services, rendered in installing or applying the property sold when the

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charge is separately stated by the retailer to the purchaser; provided that in transactions subject to

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the provisions of this chapter the retailer shall separately state such charge when requested by the

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purchaser and, further, the failure to separately state such charge when requested may be

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restrained in the same manner as other unlawful acts or practices prescribed in chapter 13.1 of

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title 6.

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     (iii) Interest, financing, and carrying charges from credit extended on the sale of personal

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property or services, if the amount is separately stated on the invoice, bill of sale or similar

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document given to the purchaser; and

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     (iv) Any taxes legally imposed directly on the consumer that are separately stated on the

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invoice, bill of sale or similar document given to the purchaser.

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     (v) Manufacturer rebates allowed on the sale of motor vehicles.

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     (c) "Sales price" shall include consideration received by the seller from third parties if:

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     (i) The seller actually receives consideration from a party other than the purchaser and the

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consideration is directly related to a price reduction or discount on the sale;

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     (ii) The seller has an obligation to pass the price reduction or discount through to the

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purchaser;

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     (iii) The amount of the consideration attributable to the sale is fixed and determinable by

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the seller at the time of the sale of the item to the purchaser; and

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     (iv) One of the following criteria is met:

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     (A) The purchaser presents a coupon, certificate or other documentation to the seller to

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claim a price reduction or discount where the coupon, certificate or documentation is authorized,

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distributed or granted by a third party with the understanding that the third party will reimburse

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any seller to whom the coupon, certificate or documentation is presented;

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     (B) The purchaser identifies himself or herself to the seller as a member of a group or

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organization entitled to a price reduction or discount (a "preferred customer" card that is available

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to any patron does not constitute membership in such a group), or

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     (C) The price reduction or discount is identified as a third party price reduction or

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discount on the invoice received by the purchaser or on a coupon, certificate or other

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documentation presented by the purchaser.

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     44-18-15. "Retailer" defined. -- (a) "Retailer" includes:

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     (1) Every person engaged in the business of making sales at retail, and prewritten

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computer software delivered electronically or by load and leave, and/or package tour and scenic

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and sightseeing transportation services, including sales at auction of tangible personal property

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owned by the person or others.

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     (2) Every person making sales of tangible personal property, and/or prewritten computer

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software delivered electronically or by load and leave, and/or package tour and scenic and

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sightseeing transportation services, through an independent contractor or other representative, if

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the retailer enters into an agreement with a resident of this state, under which the resident, for a

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commission or other consideration, directly or indirectly refers potential customers, whether by a

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link on an Internet website or otherwise, to the retailer, provided the cumulative gross receipts

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from sales by the retailer to customers in the state who are referred to the retailer by all residents

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with this type of an agreement with the retailer, is in excess of five thousand dollars ($5,000)

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during the preceding four (4) quarterly periods ending on the last day of March, June, September

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and December. Such retailer shall be presumed to be soliciting business through such independent

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contractor or other representative, which presumption may be rebutted by proof that the resident

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with whom the retailer has an agreement did not engage in any solicitation in the state on behalf

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of the retailer that would satisfy the nexus requirement of the United States Constitution during

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such four (4) quarterly periods.

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     (3) Every person engaged in the business of making sales for storage, use, or other

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consumption, or the business of making sales at auction of tangible personal property, and/or

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prewritten computer software delivered electronically or by load and leave, and/or package tour

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and scenic and sightseeing transportation services, owned by the person or others for storage, use,

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or other consumption.

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     (4) A person conducting a horse race meeting with respect to horses, which are claimed

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during the meeting.

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     (5) Every person engaged in the business of renting any living quarters in any hotel,

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rooming house, or tourist camp.

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     (6) Every person maintaining a business within or outside of this state who engages in the

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regular or systematic solicitation of sales of tangible personal property, or prewritten computer

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software delivered electronically or by load and leave, and/or package tour and scenic and

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sightseeing transportation services, in this state by means of:

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     (i) Advertising in newspapers, magazines, and other periodicals published in this state,

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sold over the counter in this state or sold by subscription to residents of this state, billboards

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located in this state, airborne advertising messages produced or transported in the airspace above

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this state, display cards and posters on common carriers or any other means of public conveyance

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incorporated or operated primarily in this state, brochures, catalogs, circulars, coupons,

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pamphlets, samples, and similar advertising material mailed to, or distributed within this state to

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residents of this state;

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      (ii) Telephone;

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      (iii) Computer assisted shopping networks; and

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     (iv) Television, radio or any other electronic media, which is intended to be broadcast to

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consumers located in this state.

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     (b) When the tax administrator determines that it is necessary for the proper

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administration of chapters 18 and 19 of this title to regard any salespersons, representatives,

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truckers, peddlers, or canvassers as the agents of the dealers, distributors, supervisors, employers,

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or persons under whom they operate or from whom they obtain the tangible personal property

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sold by them, irrespective of whether they are making sales on their own behalf or on behalf of

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the dealers, distributors, supervisors, or employers, the tax administrator may so regard them and

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may regard the dealers, distributors, supervisors, or employers as retailers for purposes of

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chapters 18 and 19 of this title.

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     44-18-20. Use tax imposed. -- (a) An excise tax is imposed on the storage, use, or other

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consumption in this state of tangible personal property, or prewritten computer software delivered

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electronically or by load and leave, and/or package tour and scenic and sightseeing transportation

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services, including a motor vehicle, a boat, an airplane, or a trailer, purchased from any retailer at

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the rate of six percent (6%) of the sale price of the property.

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     (b) An excise tax is imposed on the storage, use, or other consumption in this state of a

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motor vehicle, a boat, an airplane, or a trailer purchased from other than a licensed motor vehicle

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dealer or other than a retailer of boats, airplanes, or trailers respectively, at the rate of six percent

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(6%) of the sale price of the motor vehicle, boat, airplane, or trailer.

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     (c) The word "trailer" as used in this section and in section 44-18-21 means and includes

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those defined in section 31-1-5(a) -- (e) and also includes boat trailers, camping trailers, house

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trailers, and mobile homes.

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     (d) Notwithstanding the provisions contained in this section and in section 44-18-21

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relating to the imposition of a use tax and liability for this tax on certain casual sales, no tax is

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payable in any casual sale:

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     (1) When the transferee or purchaser is the spouse, mother, father, brother, sister, or child

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of the transferor or seller;

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     (2) When the transfer or sale is made in connection with the organization, reorganization,

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dissolution, or partial liquidation of a business entity; provided:

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     (i) The last taxable sale, transfer, or use of the article being transferred or sold was

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subjected to a tax imposed by this chapter;

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     (ii) The transferee is the business entity referred to or is a stockholder, owner, member, or

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partner; and

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     (iii) Any gain or loss to the transferor is not recognized for income tax purposes under the

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provisions of the federal income tax law and treasury regulations and rulings issued thereunder;

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     (3) When the sale or transfer is of a trailer, other than a camping trailer, of the type

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ordinarily used for residential purposes and commonly known as a house trailer or as a mobile

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home; or

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     (4) When the transferee or purchaser is exempt under the provisions of section 44-18-30

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or other general law of this state or special act of the general assembly of this state.

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      (e) The term "casual" means a sale made by a person other than a retailer; provided, that

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in the case of a sale of a motor vehicle, the term means a sale made by a person other than a

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licensed motor vehicle dealer or an auctioneer at an auction sale. In no case is the tax imposed

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under the provisions of subsections (a) and (b) of this section on the storage, use, or other

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consumption in this state of a used motor vehicle less than the product obtained by multiplying

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the amount of the retail dollar value at the time of purchase of the motor vehicle by the applicable

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tax rate; provided, that where the amount of the sale price exceeds the amount of the retail dollar

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value, the tax is based on the sale price. The tax administrator shall use as his or her guide the

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retail dollar value as shown in the current issue of any nationally recognized used vehicle guide

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for appraisal purposes in this state. On request within thirty (30) days by the taxpayer after

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payment of the tax, if the tax administrator determines that the retail dollar value as stated in this

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subsection is inequitable or unreasonable, he or she shall, after affording the taxpayer reasonable

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opportunity to be heard, re-determine the tax.

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     (f) Every person making more than five (5) retail sales of tangible personal property or

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prewritten computer software delivered electronically or by load and leave, and/or package tour

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and scenic and sightseeing transportation services during any twelve (12) month period, including

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sales made in the capacity of assignee for the benefit of creditors or receiver or trustee in

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bankruptcy, is considered a retailer within the provisions of this chapter.

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     (g) (1) "Casual sale" includes a sale of tangible personal property not held or used by a

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seller in the course of activities for which the seller is required to hold a seller's permit or permits

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or would be required to hold a seller's permit or permits if the activities were conducted in this

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state; provided, that the sale is not one of a series of sales sufficient in number, scope, and

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character (more than five (5) in any twelve (12) month period) to constitute an activity for which

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the seller is required to hold a seller's permit or would be required to hold a seller's permit if the

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activity were conducted in this state.

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     (2) Casual sales also include sales made at bazaars, fairs, picnics, or similar events by

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nonprofit organizations, which are organized for charitable, educational, civic, religious, social,

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recreational, fraternal, or literary purposes during two (2) events not to exceed a total of six (6)

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days duration each calendar year. Each event requires the issuance of a permit by the division of

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taxation. Where sales are made at events by a vendor, which holds a sales tax permit and is not a

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nonprofit organization, the sales are in the regular course of business and are not exempt as casual

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sales.

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     (h) The use tax imposed under this section for the period commencing July 1, 1990 is at

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the rate of seven percent (7%). In recognition of the work being performed by the Streamlined

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Sales and Use Tax Governing Board, upon any federal law which requires remote sellers to

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collect and remit taxes, effective the first (1st) day of the first (1st) state fiscal quarter following

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the change, the rate imposed under section 44-18-18 shall be six and one-half percent (6.5%).

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     44-18-21. Liability for use tax. -- (a) Every person storing, using, or consuming in this

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state tangible personal property, including a motor vehicle, boat, airplane, or trailer, purchased

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from a retailer, and a motor vehicle, boat, airplane, or trailer, purchased from other than a

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licensed motor vehicle dealer or other than a retailer of boats, airplanes, or trailers respectively ;

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or storing, using or consuming specified prewritten computer software delivered electronically or

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by load and leave, and/or package tour and scenic and sightseeing transportation services is liable

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for the use tax. The person's liability is not extinguished until the tax has been paid to this state,

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except that a receipt from a retailer engaging in business in this state or from a retailer who is

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authorized by the tax administrator to collect the tax under rules and regulations that he or she

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may prescribe, given to the purchaser pursuant to the provisions of section 44-18-22, is sufficient

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to relieve the purchaser from further liability for the tax to which the receipt refers.

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      (b) Each person before obtaining an original or transferral registration for any article or

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commodity in this state, which article or commodity is required to be licensed or registered in the

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state, shall furnish satisfactory evidence to the tax administrator that any tax due under this

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chapter with reference to the article or commodity has been paid, and for the purpose of effecting

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compliance, the tax administrator, in addition to any other powers granted to him or her, may

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invoke the provisions of section 31-3-4 in the case of a motor vehicle. The tax administrator,

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when he or she deems it to be for the convenience of the general public, may authorize any

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agency of the state concerned with the licensing or registering of these articles or commodities to

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collect the use tax on any articles or commodities which the purchaser is required by this chapter

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to pay before receiving an original or transferral registration. The general assembly shall annually

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appropriate a sum that it deems necessary to carry out the purposes of this section.

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     Notwithstanding the provisions of sections 44-18-19, 44-18-22, and 44-18-24, the sales

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or use tax on any motor vehicle and/or recreational vehicle requiring registration by the

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administrator of the division of motor vehicles shall not be added by the retailer to the sale price

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or charge but shall be paid directly by the purchaser to the tax administrator, or his or her

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authorized deputy or agent as provided in this section.

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     (c) In cases involving total loss or destruction of a motor vehicle occurring within one

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hundred twenty (120) days from the date of purchase and upon which the purchaser has paid the

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use tax, the amount of the tax constitutes an overpayment. The amount of the overpayment may

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be credited against the amount of use tax on any subsequent vehicle which the owner acquires to

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replace the lost or destroyed vehicle or may be refunded, in whole or in part.

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      44-18-22. Collection of use tax by retailer. -- Every retailer engaging in business in this

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state and making sales of tangible personal property or prewritten computer software delivered

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electronically or by load and leave, for storage, use, or other consumption in this state, and/or

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providing package tour and scenic and sightseeing transportation services, not exempted under

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this chapter shall, at the time of making the sales, or if the storage, use, or other consumption of

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the tangible personal property, prewritten computer software delivered electronically or by load

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and leave, and/or providing package tour and scenic and sightseeing transportation services, is not

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then taxable under this chapter, at the time the storage, use, or other consumption becomes

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taxable, collect the tax from the purchaser and give to the purchaser a receipt in the manner and

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form prescribed by the tax administrator.

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     44-18-23. "Engaging in business" defined. -- As used in sections 44-18-21 and 44-18-

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22 the term "engaging in business in this state" means the selling or delivering in this state, or any

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activity in this state related to the selling or delivering in this state of tangible personal property

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or prewritten computer software delivered electronically or by load and leave for storage, use, or

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other consumption in this state, as well as providing package tour and scenic and sightseeing

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transportation services. This term includes, but is not limited to, the following acts or methods of

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transacting business:

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     (1) Maintaining, occupying, or using in this state permanently or temporarily, directly or

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indirectly or through a subsidiary, representative, or agent by whatever name called and whether

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or not qualified to do business in this state, any office, place of distribution, sales or sample room

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or place, warehouse or storage place, or other place of business;

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     (2) Having any subsidiary, representative, agent, salesperson, canvasser, or solicitor

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permanently or temporarily, and whether or not the subsidiary, representative, or agent is

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qualified to do business in this state, operate in this state for the purpose of selling, delivering, or

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the taking of orders for any tangible personal property, or prewritten computer software delivered

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electronically or by load and leave, and/or package tour and scenic and sightseeing transportation

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services;

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     (3) The regular or systematic solicitation of sales of tangible personal property, or

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prewritten computer software delivered electronically or by load and leave, and/or package tour

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and scenic and sightseeing transportation services, in this state by means of:

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     (i) Advertising in newspapers, magazines, and other periodicals published in this state,

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sold over the counter in this state or sold by subscription to residents of this state, billboards

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located in this state, airborne advertising messages produced or transported in the air space above

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this state, display cards and posters on common carriers or any other means of public conveyance

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incorporated or operating primarily in this state, brochures, catalogs, circulars, coupons,

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pamphlets, samples, and similar advertising material mailed to, or distributed within this state to

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residents of this state;

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     (ii) Telephone;

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     (iii) Computer-assisted shopping networks; and

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     (iv) Television, radio or any other electronic media, which is intended to be broadcast to

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consumers located in this state.

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     44-18-25. Presumption that sale is for storage, use, or consumption -- Resale

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certificate. -- It is presumed that all gross receipts are subject to the sales tax, and that the use of

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all tangible personal property, or prewritten computer software delivered electronically or by load

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and leave, and/or package tour and scenic and sightseeing transportation services are subject to

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the use tax, and that all tangible personal property, or prewritten computer software delivered

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electronically or by load and leave, and/or package tour and scenic and sightseeing transportation

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services sold or in processing or intended for delivery or delivered in this state is sold or delivered

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for storage, use, or other consumption in this state, until the contrary is established to the

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satisfaction of the tax administrator. The burden of proving the contrary is upon the person who

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makes the sale and the purchaser, unless the person who makes the sale takes from the purchaser

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a certificate to the effect that the purchase was for resale. The certificate shall contain any

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information and be in the form that the tax administrator may require.

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     SECTION 2. Section 44-19-7 of the General Laws in Chapter 44-19 entitled "Sales and

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Use Taxes - Enforcement and Collection" is hereby amended to read as follows:

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     44-19-7. Registration of retailers. -- Every retailer selling tangible personal property or

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prewritten computer software delivered electronically or by load and leave for storage, use, or

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other consumption in this state and/or package tour and scenic and sightseeing transportation

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services or renting living quarters in any hotel, rooming house, or tourist camp in this state must

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register with the tax administrator and give the name and address of all agents operating in this

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state, the location of all distribution or sales houses or offices, or of any hotel, rooming house, or

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tourist camp or other places of business in this state, and other information that the tax

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administrator may require.

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     SECTION 3. This act shall take effect upon passage.

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LC00232

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO TAXATION - SALES AND USE TAXES

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     This act would exempt package tour and scenic and sightseeing transportation services

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from sales and use taxes.

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     This act would take effect upon passage.

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LC00232

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