08 LC
18 6852
House
Bill 1078
By:
Representative O`Neal of the
146th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 8 of Title 48 of the Official Code of Georgia Annotated, relating
to sales and use taxes, so as to change certain definitions regarding such
taxes; to provide an effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
8 of Title 48 of the Official Code of Georgia Annotated, relating to sales and
use taxes, is amended by revising Code Section 48-8-2, relating to definitions
regarding such taxes, as follows:
"48-8-2.
As
used in this article, the term:
(1)
'Business' means any activity engaged in by any person or caused to be engaged
in by any person with the object of direct or indirect gain, benefit, or
advantage.
(2)
'Cost price' means the actual cost of articles of tangible personal property
without any deductions for the cost of materials used, labor costs, service
costs, transportation charges, or any other expenses of any kind.
(3)
'Dealer' means every person who:
(A)
Has sold at retail, used, consumed, distributed, or stored for use or
consumption in this state tangible personal property and who cannot prove that
the tax levied by this article has been paid on the sale at retail or on the
use, consumption, distribution, or storage of the tangible personal
property;
(B)
Imports or causes to be imported tangible personal property from any state or
foreign country for sale at retail, or for use, consumption, distribution, or
storage for use or consumption in this state;
(C)
Is the lessee or renter of tangible personal property and who pays to the owner
of the property a consideration for the use or possession of the property
without acquiring title to the property;
(D)
Leases or rents tangible personal property for a consideration, permitting the
use or possession of the property without transferring title to the
property;
(E)
Maintains or has within this state, indirectly or by a subsidiary, an office,
distribution center, salesroom or sales office, warehouse, service enterprise,
or any other place of business;
(F)
Manufactures or produces tangible personal property for sale at retail or for
use, consumption, distribution, or storage for use or consumption in this
state;
(G)
Sells at retail, offers for sale at retail, or has in his possession for sale at
retail, or for use, consumption, distribution, or storage for use or consumption
in this state tangible personal property;
(H)
Solicits business by an agent, employee, representative, or any other
person;
(I)
Engages in the regular or systematic solicitation of a consumer market in this
state, unless the dealer´s only activity in this state is:
(i)
Advertising or solicitation by:
(I)
Direct mail, catalogs, periodicals, or advertising fliers;
(II)
Means of print, radio, or television media; or
(III)
Telephone, computer, the Internet, cable, microwave, or other communication
system; or
(ii)
The delivery of tangible personal property within this state solely by common
carrier or United States mail.
The
exceptions provided in divisions (i) and (ii) of this subparagraph shall not
apply to any requirements under Code Section 48-8-14;
(J)
Is an affiliate that sells at retail, offers for sale at retail in this state,
or engages in the regular or systematic solicitation of a consumer market in
this state through a related dealer located in this state unless:
(i)
The in-state dealer to which the affiliate is related does not engage in any of
the following activities on behalf of the affiliate:
(I)
Advertising;
(II)
Marketing;
(III)
Sales; or
(IV)
Other services; and
(ii)
The in-state dealer to which the affiliate is related accepts the return of
tangible personal property sold by the affiliate and also accepts the return of
tangible personal property sold by any person or dealer that is not an affiliate
on the same terms and conditions as an affiliate´s return;
As
used in this subparagraph, the term 'affiliate' means any person that is related
directly or indirectly through one or more intermediaries, controls, is
controlled by, is under common control with, or is subject to the control of a
dealer described in subparagraphs (A) through (I) of this paragraph or in this
subparagraph; or
(K)
Notwithstanding any of the provisions contained in this paragraph, with respect
to a person that is not a resident or domiciliary of Georgia, that does not
engage in any other business or activity in Georgia, and that has contracted
with a commercial printer for printing to be conducted in Georgia, such person
shall not be deemed a 'dealer' in Georgia merely because such
person:
(i)
Owns tangible or intangible property which is located at the Georgia premises of
a commercial printer for use by such printer in performing services for the
owner;
(ii)
Makes sales and distributions of printed material produced at and shipped or
distributed from the Georgia premises of the commercial printer;
(iii)
Performs activities of any kind at the Georgia premises of the commercial
printer which are directly related to the services provided by the commercial
printer; or
(iv)
Has printing, including any printing related activities, and distribution
related activities performed by the commercial printer in Georgia for or on its
behalf,
nor
shall such person, absent any contact with Georgia other than with or through
the use of the commercial printer or the use of the United States Postal Service
or a common carrier, have an obligation to collect sales or use tax from any of
its customers located in Georgia based upon the activities described in
divisions (i) through (iv) of this subparagraph. In no event described in this
subparagraph shall such person be considered to have a fixed place of business
in Georgia at either the commercial printer´s premises or at any place
where the commercial printer performs services on behalf of that
person.
(L)
Each dealer shall collect the tax imposed by this article from the purchaser,
lessee, or renter, as applicable, and no action seeking either legal or
equitable relief on a sale, lease, rental, or other transaction may be had in
this state by the dealer unless the dealer has fully complied with this
article.
(M)
The commissioner shall promulgate such rules and regulations necessary to
administer this paragraph, including other such information, applications,
forms, or statements as the commissioner may reasonably require.
(4)
'Gross sales' means the:
(A)
Sum total of all retail sales of tangible personal property or services without
any deduction of any kind other than as provided in this article;
or
(B)(i)
Charges, when applied to sales of telephone service, made for local exchange
telephone service, except local messages which are paid for by inserting coins
in coin operated telephones, but including the total amount of the guaranteed
charge for semipublic coin box telephone services; except as otherwise provided
in division (ii) of this subparagraph.
(ii)(I)
If a telephone service is not subject to the tax levied by this chapter, and if
the amount charged for such telephone service is aggregated with and not
separately stated from the amount paid or charged for any service that is
subject to such tax, then the nontaxable telephone service shall be treated as
being subject to such tax unless the telephone service provider can reasonably
identify the amount paid or charged for the telephone service not subject to
such tax from its books and records kept in the regular course of
business.
(II)
If a telephone service is not subject to the tax levied by this chapter, a
customer may not rely upon the nontaxability of such telephone service unless
the telephone service provider separately states the amount charged for such
nontaxable telephone service or the telephone service provider elects, after
receiving a written request from the customer in the form required by the
provider, to provide verifiable data based upon the provider´s books and
records that are kept in the regular course of business that reasonably
identifies the amount charged for such nontaxable telephone
service.
(5)
'Lease or rental' means the leasing or renting of tangible personal property and
the possession or use of the property by the lessee or renter for a
consideration without transfer of the title to the property.
(5.1)
'Prepaid state tax' means the tax levied under Code Section 48-8-30 in
conjunction with Code Section 48-8-3.1 and Code Section 48-9-14 on the retail
sale of motor fuels for highway use and collected prior to that retail sale.
This tax is based upon the average retail sales price as set forth in Code
Section 48-9-14.
(5.2)
'Prepaid local tax' means any local sales and use tax which is levied on the
sale or use of motor fuel and imposed in an area consisting of less than the
entire state, however authorized, including, but not limited to, such taxes
authorized by or pursuant to constitutional amendment; by or pursuant to Section
25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, known
as the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965' or by or
pursuant to Article 2, 2A, 3, or 4 of this chapter. Such tax is based on the
same average retail sales price as set forth in subparagraph (b)(2)(B) of Code
Section 48-9-14. Such price shall be used to compute the prepaid sales tax rate
for local jurisdictions by multiplying such retail price by the applicable rate
imposed by the jurisdiction. The person collecting and reporting the prepaid
local tax for the local jurisdiction shall provide a schedule as to which
jurisdiction these collections relate. This determination shall be based upon
the shipping papers of the conveyance that delivered the motor fuel to the
dealer or consumer in the local jurisdiction. A seller may rely upon the
representation made by the purchaser as to which jurisdiction the shipment is
bound and prepare shipping papers in accordance with those
instructions.
(6)
'Retail sale' or a 'sale at retail' means:
(A)
A sale to a consumer or to any person for any purpose other than for resale of
tangible personal property or services taxable under this article including, but
not limited to, any such transactions which the commissioner upon investigation
finds to be in lieu of sales. Sales for resale must be made in strict
compliance with the commissioner´s rules and regulations. Any dealer
making a sale for resale which is not in strict compliance with the
commissioner´s rules and regulations shall himself be liable for and shall
pay the tax;
(B)(i)
Except as otherwise provided in division (ii) of this subparagraph, the sale of
natural or artificial gas, oil, electricity, solid fuel, transportation, local
telephone services, beverages, and tobacco products, when made to any purchaser
for purposes other than resale.
(ii)
The sale of electricity used directly in the manufacture of a product shall not
constitute a retail sale for purposes of this article if the direct cost of such
electricity exceeds 50 percent of the cost of all materials, including
electricity, used directly in the product and shall be exempt from taxation
under this article. Such exemption shall be applied to manufacturers located in
this state as follows:
(I)
For calendar years beginning on or after January 1, 1995, and prior to January
1, 1996, 20 percent of the direct cost of such electricity shall be
exempt;
(II)
For calendar years beginning on or after January 1, 1996, and prior to January
1, 1997, 40 percent of the direct cost of such electricity shall be
exempt;
(III)
For calendar years beginning on or after January 1, 1997, and prior to January
1, 1998, 60 percent of the direct cost of such electricity shall be
exempt;
(IV)
For calendar years beginning on or after January 1, 1998, and prior to January
1, 1999, 80 percent of the direct cost of such electricity shall be exempt;
and
(V)
For calendar years beginning on or after January 1, 1999, 100 percent of the
direct cost of such electricity shall be exempt;
(C)
The sale or charges for any room, lodging, or accommodation furnished to
transients by any hotel, inn, tourist camp, tourist cabin, or any other place in
which rooms, lodgings, or accommodations are regularly furnished to transients
for a consideration. This tax shall not apply to rooms, lodgings, or
accommodations supplied for a period of 90 continuous days or more;
(D)
Sales of tickets, fees, or charges made for admission to, or voluntary
contributions made to places of, amusement, sports, or entertainment including,
but not limited to:
(i)
Billiard and pool rooms;
(ii)
Bowling alleys;
(iii)
Amusement devices;
(iv)
Musical devices;
(v)
Theaters;
(vi)
Opera houses;
(vii)
Moving picture shows;
(viii)
Vaudeville;
(ix)
Amusement parks;
(x)
Athletic contests including, but not limited to, wrestling matches, prize
fights, boxing and wrestling exhibitions, football games, and baseball
games;
(xi)
Skating rinks;
(xii)
Race tracks;
(xiii)
Public bathing places;
(xiv)
Public dance halls; and
(xv)
Any other place at which any exhibition, display, amusement, or entertainment is
offered to the public or any other place where an admission fee is
charged;
(E)
Reserved;
(F)
Charges made for participation in games and amusement activities;
or
(G)
Sales of tangible personal property to persons for resale when there is a
likelihood that the state will lose tax funds due to the difficulty of policing
the business operations because:
(i)
Of the operation of the business;
(ii)
Of the very nature of the business;
(iii)
Of the turnover of so-called independent contractors;
(iv)
Of the lack of a place of business in which to display a certificate of
registration;
(v)
Of the lack of a place of business in which to keep records;
(vi)
Of the lack of adequate records;
(vii)
The persons are minors or transients;
(viii)
The persons are engaged in essentially service businesses; or
(ix)
Of any other reasonable reason.
The
commissioner may promulgate rules and regulations requiring vendors of persons
described in this subparagraph to collect the tax imposed by this article on the
retail price of the tangible personal property. The commissioner shall refuse
to issue certificates of registration and may revoke certificates of
registration issued in violation of his rules and regulations.
(7)
'Retailer' means every person making sales at retail or for distribution, use,
consumption, or storage for use or consumption in this state.
(8)(A)
'Sale' means any transfer of title or possession, transfer of title and
possession, exchange, barter, lease, or rental, conditional or otherwise, in any
manner or by any means of any kind of tangible personal property for a
consideration except as otherwise provided in subparagraph (B) of this paragraph
and includes, but is not limited to:
(i)
The fabrication of tangible personal property for consumers who directly or
indirectly furnish the materials used in such fabrication;
(ii)
The furnishing, repairing, or serving for a consideration of any tangible
personal property consumed on the premises of the person furnishing, repairing,
or serving the tangible personal property; or
(iii)
A transaction by which the possession of property is transferred but the seller
retains title as security for the payment of the price.
(B)
Notwithstanding a dealer´s physical presence, in the case of a motor
vehicle retail sale or a motor vehicle lease or rental when the lease or rental
period exceeds 30 days and when the purchaser or lessee is a resident of this
state, the taxable situs of the transaction for the purposes of collecting local
sales and use taxes shall be the county of motor vehicle registration of the
purchaser or lessee.
(9)(A)
'Sales price' means the total amount valued in money, whether paid in money or
otherwise, for which tangible personal property or services are sold including,
but not limited to, any services that are a part of the sale and any amount for
which credit is given to the purchaser by the seller without any deduction from
the total amount for the cost of the property sold, the cost of materials used,
labor or service costs, losses, or any other expenses of any kind.
(B)
'Sales price' does not include:
(i)
Cash discounts allowed and taken on sales;
(ii)
The amount charged for labor or services rendered in installing, applying,
remodeling, or repairing property sold; or
(iii)
Finance charges, carrying charges, service charges, or interest from credit
extended on sales of tangible personal property under conditional sale contracts
or other conditional contracts providing for deferred payments of the purchase
price.
(10)
'Storage' means any keeping or retention in this state of tangible personal
property for use or consumption in this state or for any purpose other than sale
at retail in the regular course of business.
(11)
'Tangible personal property' means personal property which may be seen, weighed,
measured, felt, or touched or is in any other manner perceptible to the senses.
'Tangible personal property' does not mean stocks, bonds, notes, insurance, or
other obligations or securities.
(12)
'Use' means the exercise of any right or power over tangible personal property
incident to the ownership of the property including, but not limited to, the
sale at retail of the property in the regular course of business.
(13)
'Use tax' includes the use, consumption, distribution, and storage of tangible
personal property as defined in this article."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.