2015 -- S 0463

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LC001337

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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: Senator Joshua Miller

     Date Introduced: February 26, 2015

     Referred To: Senate Finance

     It is enacted by the General Assembly as follows:

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

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

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

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Use Tax Agreement.

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

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

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

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

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

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

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the purchaser of the products included in the transaction.

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

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

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

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

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

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express delivery envelopes and boxes.

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

 

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

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

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

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Appendix C of the Agreement.

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

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

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

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

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services, rate card, or price list.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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minimis.

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

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are de minimis; or

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

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property where:

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

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

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

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

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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

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

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transaction.

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

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

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

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

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

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its own purchases.

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      (f) Clothing and Related Items

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

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

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

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

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

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

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

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

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

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

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

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"protective equipment."

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      (g) Computer and Related Items

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

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

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

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

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

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tangible storage media.

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

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wireless, optical, electromagnetic, or similar capabilities.

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

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

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      (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

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

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

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

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

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

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

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

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

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

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

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

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

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constitute "prewritten computer software."

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      (h) Drugs and Related Items

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

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

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supplements" or "alcoholic beverages:"

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

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

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them; or

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

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disease; or

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

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

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prescription.

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

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

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      (A) A "Drug Facts" panel; or

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

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the compound, substance or preparation.

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

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

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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."

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

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

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of the member state.

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

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

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

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

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

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

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

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

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

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

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

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

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parts for same which:

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      (i) Can withstand repeated use; and

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

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

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

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      Durable medical equipment does not include mobility enhancing equipment.

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      (l) Food and Related Items

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

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

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consumed for their taste or nutritional value. "Food and food ingredients" does not include

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"alcoholic beverages," "tobacco," "candy," "dietary supplements" and "soft drinks."

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      (ii) "Prepared food" means:

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

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

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single item; or

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

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

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to transport the food.

 

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

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

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

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

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

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

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

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shall require no refrigeration.

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

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

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

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volume.

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

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supplement the diet that:

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

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      1. A vitamin;

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      2. A mineral;

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      3. An herb or other botanical;

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      4. An amino acid;

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

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dietary intake; or

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

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described in above; and

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

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

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

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

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

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

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other mechanical device that accepts payment.

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

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

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permanent guests and tenants and includes a motel.

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

 

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

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

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

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

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

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buildings.

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

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

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habitation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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parts to same, which:

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

 

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

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

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

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provided by a motor vehicle manufacturer.

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      Mobility enhancing equipment does not include durable medical equipment.

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

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

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purchases.

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

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

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

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

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

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

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

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system.

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

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

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

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

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

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

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a service is furnished.

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

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as sales price.

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

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services.

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

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      (y) "Telecommunications" tax base/exemption terms

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      (i) Telecommunication terms shall be defined as follows:

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

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

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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

 

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

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

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services" used to reach the conference bridge.

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

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

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

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information, and/or address information.

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

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

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

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"conference bridging services".

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

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

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

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

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

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

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

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

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

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Federal Communications Commission as enhanced or value added. "Telecommunications

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service" does not include:

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

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

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

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information;

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

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      (3) Tangible personal property;

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

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

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      (6) Internet access service;

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

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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

 

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

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

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CFR 20.3;

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      (8) "Ancillary services"; or

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

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music, video, reading materials or ring tones.

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

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

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

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designated by the Federal Communications Commission.

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

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

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

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

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

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

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Communications Commission.

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

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communication between fixed points.

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

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

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

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

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provider.

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

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

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messages and/or sounds.

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

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

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

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

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

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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

 

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

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

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

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

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

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

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

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

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

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

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other than transmission, conveyance or routing.

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

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

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

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

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

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

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

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

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

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

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state or a United States territory or possession.

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

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

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state or a United States territory or possession.

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

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pay telephone.

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

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

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

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

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

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      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

 

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

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

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

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

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

6

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

7

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

8

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

9

      (z) "Tobacco" means cigarettes, cigars, chewing or pipe tobacco, electronic nicotine-

10

delivery systems, or any other item that contains tobacco.

11

     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

***

1

     This act would add electronic nicotine-delivery systems to the definition of "tobacco" for

2

tax purposes.

3

     This act would take effect upon passage.

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