2015 -- H 5395

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LC001028

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO TAXATION -- SALES AND USE TAXES -- LIABILITY AND

COMPUTATION

     Introduced By: Representatives Fogarty, Naughton, Filippi, Keable, and Shekarchi

     Date Introduced: February 11, 2015

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 44-18-7.1 of the General Laws in Chapter 44-18 entitled "Sales and

Use Taxes - Liability and Computation" is hereby amended to read as follows:

     44-18-7.1. Additional definitions. -- (a) "Agreement" means the Streamlined Sales and

Use Tax Agreement.

      (b) "Alcoholic Beverages" means beverages that are suitable for human consumption and

contain one-half of one percent (.5%) or more of alcohol by volume.

      (c) "Bundled Transaction" is the retail sale of two or more products, except real property

and services to real property, where (1) the products are otherwise distinct and identifiable, and

(2) the products are sold for one non-itemized price. A "bundled transaction" does not include the

sale of any products in which the "sales price" varies, or is negotiable, based on the selection by

the purchaser of the products included in the transaction.

      (i) "Distinct and identifiable products" does not include:

      (A) Packaging -- such as containers, boxes, sacks, bags, and bottles -- or other materials -

- such as wrapping, labels, tags, and instruction guides -- that accompany the "retail sale" of the

products and are incidental or immaterial to the "retail sale" thereof. Examples of packaging that

are incidental or immaterial include grocery sacks, shoeboxes, dry cleaning garment bags and

express delivery envelopes and boxes.

      (B) A product provided free of charge with the required purchase of another product. A

product is "provided free of charge" if the "sales price" of the product purchased does not vary

depending on the inclusion of the products "provided free of charge."

      (C) Items included in the member state's definition of "sales price," pursuant to

Appendix C of the Agreement.

      (ii) The term "one non-itemized price" does not include a price that is separately

identified by product on binding sales or other supporting sales-related documentation made

available to the customer in paper or electronic form including, but not limited to, an invoice, bill

of sale, receipt, contract, service agreement, lease agreement, periodic notice of rates and

services, rate card, or price list.

      (iii) A transaction that otherwise meets the definition of a "bundled transaction" as

defined above, is not a "bundled transaction" if it is:

      (A) The "retail sale" of tangible personal property and a service where the tangible

personal property is essential to the use of the service, and is provided exclusively in connection

with the service, and the true object of the transaction is the service; or

      (B) The "retail sale" of services where one service is provided that is essential to the use

or receipt of a second service and the first service is provided exclusively in connection with the

second service and the true object of the transaction is the second service; or

      (C) A transaction that includes taxable products and nontaxable products and the

"purchase price" or "sales price" of the taxable products is de minimis.

      1. De minimis means the seller's "purchase price" or "sales price" of the taxable products

is ten percent (10%) or less of the total "purchase price" or "sales price" of the bundled products.

      2. Sellers shall use either the "purchase price" or the "sales price" of the products to

determine if the taxable products are de minimis. Sellers may not use a combination of the

"purchase price" and "sales price" of the products to determine if the taxable products are de

minimis.

      3. Sellers shall use the full term of a service contract to determine if the taxable products

are de minimis; or

      (D) The "retail sale" of exempt tangible personal property and taxable tangible personal

property where:

      1. the transaction includes "food and food ingredients", "drugs", "durable medical

equipment", "mobility enhancing equipment", "over-the-counter drugs", "prosthetic devices" (all

as defined in § 44-18-7.1) or medical supplies; and

      2. where the seller's "purchase price" or "sales price" of the taxable tangible personal

property is fifty percent (50%) or less of the total "purchase price" or "sales price" of the bundled

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tangible personal property. Sellers may not use a combination of the "purchase price" and "sales

price" of the tangible personal property when making the fifty percent (50%) determination for a

transaction.

      (d) "Certified Automated System (CAS)" means software certified under the Agreement

to calculate the tax imposed by each jurisdiction on a transaction, determine the amount of tax to

remit to the appropriate state, and maintain a record of the transaction.

      (e) "Certified Service Provider (CSP)" means an agent certified under the Agreement to

perform all the seller's sales and use tax functions, other than the seller's obligation to remit tax on

its own purchases.

      (f) Clothing and Related Items

      (i) "Clothing" means all human wearing apparel suitable for general use.

      (ii) "Clothing accessories or equipment" means incidental items worn on the person or in

conjunction with "clothing." "Clothing accessories or equipment" does not include "clothing,"

"sport or recreational equipment," or "protective equipment."

      (iii) "Protective equipment" means items for human wear and designed as protection of

the wearer against injury or disease or as protections against damage or injury of other persons or

property but not suitable for general use. "Protective equipment" does not include "clothing,"

"clothing accessories or equipment," and "sport or recreational equipment."

      (iv) "Sport or recreational equipment" means items designed for human use and worn in

conjunction with an athletic or recreational activity that are not suitable for general use. "Sport or

recreational equipment" does not include "clothing," "clothing accessories or equipment," and

"protective equipment."

      (g) Computer and Related Items

      (i) "Computer" means an electronic device that accepts information in digital or similar

form and manipulates it for a result based on a sequence of instructions.

      (ii) "Computer software" means a set of coded instructions designed to cause a

"computer" or automatic data processing equipment to perform a task.

      (iii) "Delivered electronically" means delivered to the purchaser by means other than

tangible storage media.

      (iv) "Electronic" means relating to technology having electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

      (v) "Load and leave" means delivery to the purchaser by use of a tangible storage media

where the tangible storage media is not physically transferred to the purchaser.

      (vi) "Prewritten computer software" means "computer software," including prewritten

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upgrades, which is not designed and developed by the author or other creator to the specifications

of a specific purchaser. The combining of two (2) or more "prewritten computer software"

programs or prewritten portions thereof does not cause the combination to be other than

"prewritten computer software." "Prewritten computer software" includes software designed and

developed by the author or other creator to the specifications of a specific purchaser when it is

sold to a person other than the specific purchaser. Where a person modifies or enhances

"computer software" of which the person is not the author or creator, the person shall be deemed

to be the author or creator only of such person's modifications or enhancements. "Prewritten

computer software" or a prewritten portion thereof that is modified or enhanced to any degree,

where such modification or enhancement is designed and developed to the specifications of a

specific purchaser, remains "prewritten computer software;" provided, however, that where there

is a reasonable, separately stated charge or an invoice or other statement of the price given to the

purchaser for such modification or enhancement, such modification or enhancement shall not

constitute "prewritten computer software."

      (h) Drugs and Related Items

      (i) "Drug" means a compound, substance or preparation, and any component of a

compound, substance or preparation, other than "food and food ingredients," "dietary

supplements" or "alcoholic beverages:"

      (A) Recognized in the official United States Pharmacopoeia, official Homeopathic

Pharmacopoeia of the United States, or official National Formulary, and supplement to any of

them; or

      (B) Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of

disease; or

      (C) Intended to affect the structure or any function of the body.

      "Drug" shall also include insulin and medical oxygen whether or not sold on

prescription.

      (ii) "Over-the-counter-drug" means a drug that contains a label that identifies the product

as a drug as required by 21 C.F.R. § 201.66. The "over-the-counter-drug" label includes:

      (A) A "Drug Facts" panel; or

      (B) A statement of the "active ingredient(s)" with a list of those ingredients contained in

the compound, substance or preparation.

      "Over-the-counter-drug" shall not include "grooming and hygiene products."

      (iii) "Grooming and hygiene products" are soaps and cleaning solutions, shampoo,

toothpaste, mouthwash, antiperspirants, and suntan lotions and screens, regardless of whether the

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items meet the definition of "over-the-counter-drugs."

      (iv) "Prescription" means an order, formula or recipe issued in any form of oral, written,

electronic, or other means of transmission by a duly licensed practitioner authorized by the laws

of the member state.

      (i) "Delivery charges" means charges by the seller of personal property or services for

preparation and delivery to a location designated by the purchaser of personal property or services

including, but not limited to, transportation, shipping, postage, handling, crating, and packing.

      "Delivery charges" shall not include the charges for delivery of "direct mail' if the

charges are separately stated on an invoice or similar billing document given to the purchaser.

      (j) "Direct mail" means printed material delivered or distributed by United States mail or

other delivery service to a mass audience or to addressees on a mailing list provided by the

purchaser or at the direction of the purchaser when the cost of the items are not billed directly to

the recipients. "Direct mail" includes tangible personal property supplied directly or indirectly by

the purchaser to the direct mail seller for inclusion in the package containing the printed material.

"Direct mail" does not include multiple items of printed material delivered to a single address.

      (k) "Durable medical equipment" means equipment including repair and replacement

parts for same which:

      (i) Can withstand repeated use; and

      (ii) Is primarily and customarily used to serve a medical purpose; and

      (iii) Generally is not useful to a person in the absence of illness or injury; and

      (iv) Is not worn in or on the body.

      Durable medical equipment does not include mobility enhancing equipment.

      (l) Food and Related Items

      (i) "Food and food ingredients" means substances, whether in liquid, concentrated, solid,

frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are

consumed for their taste or nutritional value and seeds and plants used to grow food and food

ingredients. "Food and food ingredients" does not include "alcoholic beverages," "tobacco,"

"candy," "dietary supplements" and "soft drinks."

      (ii) "Prepared food" means:

      (A) Food sold in a heated state or heated by the seller;

      (B) Two (2) or more food ingredients mixed or combined by the seller for sale as a

single item; or

      (C) Food sold with eating utensils provided by the seller, including plates, knives, forks,

spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used

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to transport the food.

      "Prepared food" in (B) does not include food that is only cut, repackaged, or pasteurized

by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring

cooking by the consumer as recommended by the Food and Drug Administration in chapter 3,

part 401.11 of its Food Code so as to prevent food borne illnesses.

      (iii) "Candy" means a preparation of sugar, honey, or other natural or artificial

sweeteners in combination with chocolate, fruits, nuts or other ingredients or flavorings in the

form of bars, drops, or pieces. "Candy" shall not include any preparation containing flour and

shall require no refrigeration.

      (iv) "Soft drinks" means non-alcoholic beverages that contain natural or artificial

sweeteners. "Soft drinks" do not include beverages that contain milk or milk products, soy, rice

or similar milk substitutes, or greater than fifty percent (50%) of vegetable or fruit juice by

volume.

      (v) "Dietary supplement" means any product, other than "tobacco," intended to

supplement the diet that:

      (A) Contains one or more of the following dietary ingredients:

      1. A vitamin;

      2. A mineral;

      3. An herb or other botanical;

      4. An amino acid;

      5. A dietary substance for use by humans to supplement the diet by increasing the total

dietary intake; or

      6. A concentrate, metabolite, constituent, extract, or combination of any ingredient

described in above; and

      (B) Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or

if not intended for ingestion in such a form, is not represented as conventional food and is not

represented for use as a sole item of a meal or of the diet; and

      (C) Is required to be labeled as a dietary supplement, identifiable by the "Supplemental

Facts" box found on the label and as required pursuant to 21 C.F.R. § 101.36.

      (m) "Food sold through vending machines" means food dispensed from a machine or

other mechanical device that accepts payment.

      (n) "Hotel" means every building or other structure kept, used, maintained, advertised as

or held out to the public to be a place where living quarters are supplied for pay to transient or

permanent guests and tenants and includes a motel.

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      (i) "Living quarters" means sleeping rooms, sleeping or housekeeping accommodations,

or any other room or accommodation in any part of the hotel, rooming house or tourist camp

which is available for or rented out for hire in the lodging of guests.

      (ii) "Rooming house" means every house, boat, vehicle, motor court or other structure

kept, used, maintained, advertised or held out to the public to be a place where living quarters are

supplied for pay to transient or permanent guests or tenants, whether in one or adjoining

buildings.

      (iii) "Tourist camp" means a place where tents or tent houses, or camp cottages, or

cabins or other structures are located and offered to the public or any segment thereof for human

habitation.

      (o) "Lease or rental" means any transfer of possession or control of tangible personal

property for a fixed or indeterminate term for consideration. A lease or rental may include future

options to purchase or extend. Lease or rental does not include:

      (i) A transfer of possession or control of property under a security agreement or deferred

payment plan that requires the transfer of title upon completion of the required payments;

      (ii) A transfer or possession or control of property under an agreement that requires the

transfer of title upon completion of required payments and payment of an option price does not

exceed the greater of one hundred dollars ($100) or one percent of the total required payments; or

      (iii) Providing tangible personal property along with an operator for a fixed or

indeterminate period of time. A condition of this exclusion is that the operator is necessary for

the equipment to perform as designed. For the purpose of this subsection, an operator must do

more than maintain, inspect, or set-up the tangible personal property.

      (iv) Lease or rental does include agreements covering motor vehicles and trailers where

the amount of consideration may be increased or decreased by reference to the amount realized

upon sale or disposition of the property as defined in 26 U.S.C. § 7701(h)(1).

      (v) This definition shall be used for sales and use tax purposes regardless if a transaction

is characterized as a lease or rental under generally accepted accounting principles, the Internal

Revenue Code, the Uniform Commercial Code, or other provisions of federal, state or local law.

      (vi) This definition will be applied only prospectively from the date of adoption and will

have no retroactive impact on existing leases or rentals. This definition shall neither impact any

existing sale-leaseback exemption or exclusions that a state may have, nor preclude a state from

adopting a sale-leaseback exemption or exclusion after the effective date of the Agreement.

      (p) "Mobility enhancing equipment" means equipment including repair and replacement

parts to same, which:

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      (i) Is primarily and customarily used to provide or increase the ability to move from one

place to another and which is appropriate for use either in a home or a motor vehicle; and

      (ii) Is not generally used by persons with normal mobility; and

      (iii) Does not include any motor vehicle or equipment on a motor vehicle normally

provided by a motor vehicle manufacturer.

      Mobility enhancing equipment does not include durable medical equipment.

      (q) "Model 1 Seller" means a seller that has selected a CSP as its agent to perform all the

seller's sales and use tax functions, other than the seller's obligation to remit tax on its own

purchases.

      (r) "Model 2 Seller" means a seller that has selected a CAS to perform part of its sales

and use tax functions, but retains responsibility for remitting the tax.

      (s) "Model 3 Seller" means a seller that has sales in at least five member states, has total

annual sales revenue of at least five hundred million dollars ($500,000,000), has a proprietary

system that calculates the amount of tax due each jurisdiction, and has entered into a performance

agreement with the member states that establishes a tax performance standard for the seller. As

used in this definition, a seller includes an affiliated group of sellers using the same proprietary

system.

      (t) "Prosthetic device" means a replacement, corrective, or supportive devices including

repair and replacement parts for same worn on or in the body to:

      (i) Artificially replace a missing portion of the body;

      (ii) Prevent or correct physical deformity or malfunction; or

      (iii) Support a weak or deformed portion of the body.

      (u) "Purchaser" means a person to whom a sale of personal property is made or to whom

a service is furnished.

      (v) "Purchase price" applies to the measure subject to use tax and has the same meaning

as sales price.

      (w) "Seller" means a person making sales, leases, or rentals of personal property or

services.

      (x) "State" means any state of the United States and the District of Columbia.

      (y) "Telecommunications" tax base/exemption terms

      (i) Telecommunication terms shall be defined as follows:

      (A) "Ancillary services" means services that are associated with or incidental to the

provision of "telecommunications services", including, but not limited to, "detailed

telecommunications billing", "directory assistance", "vertical service", and "voice mail services".

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      (B) "Conference bridging service" means an "ancillary service" that links two (2) or

more participants of an audio or video conference call and may include the provision of a

telephone number. "Conference bridging service" does not include the "telecommunications

services" used to reach the conference bridge.

      (C) "Detailed telecommunications billing service" means an "ancillary service" of

separately stating information pertaining to individual calls on a customer's billing statement.

      (D) "Directory assistance" means an "ancillary service" of providing telephone number

information, and/or address information.

      (E) "Vertical service" means an "ancillary service" that is offered in connection with one

or more "telecommunications services", which offers advanced calling features that allow

customers to identify callers and to manage multiple calls and call connections, including

"conference bridging services".

      (F) "Voice mail service" means an "ancillary service" that enables the customer to store,

send or receive recorded messages. "Voice mail service" does not include any "vertical services"

that the customer may be required to have in order to utilize the "voice mail service".

      (G) "Telecommunications service" means the electronic transmission, conveyance, or

routing of voice, data, audio, video, or any other information or signals to a point, or between or

among points. The term "telecommunications service" includes such transmission, conveyance,

or routing in which computer processing applications are used to act on the form, code or

protocol of the content for purposes of transmission, conveyance or routing without regard to

whether such service is referred to as voice over Internet protocol services or is classified by the

Federal Communications Commission as enhanced or value added. "Telecommunications

service" does not include:

      (1) Data processing and information services that allow data to be generated, acquired,

stored, processed, or retrieved and delivered by an electronic transmission to a purchaser where

such purchaser's primary purpose for the underlying transaction is the processed data or

information;

      (2) Installation or maintenance of wiring or equipment on a customer's premises;

      (3) Tangible personal property;

      (4) Advertising, including, but not limited to, directory advertising.

      (5) Billing and collection services provided to third parties;

      (6) Internet access service;

      (7) Radio and television audio and video programming services, regardless of the

medium, including the furnishing of transmission, conveyance and routing of such services by the

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programming service provider. Radio and television audio and video programming services shall

include, but not be limited to, cable service as defined in 47 U.S.C. § 522(6) and audio and video

programming services delivered by commercial mobile radio service providers, as defined in 47

CFR 20.3;

      (8) "Ancillary services"; or

      (9) Digital products "delivered electronically", including, but not limited to, software,

music, video, reading materials or ring tones.

      (H) "800 service" means a "telecommunications service" that allows a caller to dial a

toll-free number without incurring a charge for the call. The service is typically marketed under

the name "800", "855", "866", "877", and "888" toll-free calling, and any subsequent numbers

designated by the Federal Communications Commission.

      (I) "900 service" means an inbound toll "telecommunications service" purchased by a

subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded

announcement or live service. "900 service" does not include the charge for: collection services

provided by the seller of the "telecommunications services" to the subscriber, or service or

product sold by the subscriber to the subscriber's customer. The service is typically marketed

under the name "900 service," and any subsequent numbers designated by the Federal

Communications Commission.

      (J) "Fixed wireless service" means a "telecommunications service" that provides radio

communication between fixed points.

      (K) "Mobile wireless service" means a "telecommunications service" that is transmitted,

conveyed or routed regardless of the technology used, whereby the origination and/or termination

points of the transmission, conveyance or routing are not fixed, including, by way of example

only, "telecommunications services" that are provided by a commercial mobile radio service

provider.

      (L) "Paging service" means a "telecommunications service" that provides transmission of

coded radio signals for the purpose of activating specific pagers; such transmissions may include

messages and/or sounds.

      (M) "Prepaid calling service" means the right to access exclusively "telecommunications

services", which must be paid for in advance and which enables the origination of calls using an

access number or authorization code, whether manually or electronically dialed, and that is sold

in predetermined units or dollars of which the number declines with use in a known amount.

      (N) "Prepaid wireless calling service" means a "telecommunications service" that

provides the right to utilize "mobile wireless service" as well as other non-telecommunications

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services including the download of digital products "delivered electronically", content and

"ancillary services" which must be paid for in advance that is sold in predetermined units of

dollars of which the number declines with use in a known amount.

      (O) "Private communications service" means a telecommunications service that entitles

the customer to exclusive or priority use of a communications channel or group of channels

between or among termination points, regardless of the manner in which such channel or

channels are connected, and includes switching capacity, extension lines, stations, and any other

associated services that are provided in connection with the use of such channel or channels.

      (P) "Value-added non-voice data service" means a service that otherwise meets the

definition of "telecommunications services" in which computer processing applications are used

to act on the form, content, code, or protocol of the information or data primarily for a purpose

other than transmission, conveyance or routing.

      (ii) "Modifiers of Sales Tax Base/Exemption Terms" -- the following terms can be used

to further delineate the type of "telecommunications service" to be taxed or exempted. The terms

would be used with the broader terms and subcategories delineated above.

      (A) "Coin-operated telephone service" means a "telecommunications service" paid for by

inserting money into a telephone accepting direct deposits of money to operate.

      (B) "International" means a "telecommunications service" that originates or terminates in

the United States and terminates or originates outside the United States, respectively. United

States includes the District of Columbia or a U.S. territory or possession.

      (C) "Interstate" means a "telecommunications service" that originates in one United

States state, or a United States territory or possession, and terminates in a different United States

state or a United States territory or possession.

      (D) "Intrastate" means a "telecommunications service" that originates in one United

States state or a United States territory or possession, and terminates in the same United States

state or a United States territory or possession.

      (E) "Pay telephone service" means a "telecommunications service" provided through any

pay telephone.

      (F) "Residential telecommunications service" means a "telecommunications service" or

"ancillary services" provided to an individual for personal use at a residential address, including

an individual dwelling unit such as an apartment. In the case of institutions where individuals

reside, such as schools or nursing homes, "telecommunications service" is considered residential

if it is provided to and paid for by an individual resident rather than the institution.

      The terms "ancillary services" and "telecommunications service" are defined as a broad

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range of services. The terms "ancillary services" and "telecommunications service" are broader

than the sum of the subcategories. Definitions of subcategories of "ancillary services" and

"telecommunications service" can be used by a member state alone or in combination with other

subcategories to define a narrower tax base than the definitions of "ancillary services" and

"telecommunications service" would imply. The subcategories can also be used by a member

state to provide exemptions for certain subcategories of the more broadly defined terms.

      A member state that specifically imposes tax on, or exempts from tax, local telephone or

local telecommunications service may define "local service" in any manner in accordance with §

44-18.1-28, except as limited by other sections of this Agreement.

      (z) "Tobacco" means cigarettes, cigars, chewing or pipe tobacco, or any other item that

contains tobacco.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TAXATION -- SALES AND USE TAXES -- LIABILITY AND

COMPUTATION

***

     This act would expand the definition of food and food ingredients for purposes of title 44

to include seeds and plants used to grow food and food ingredients.

     This act would take effect upon passage.

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