2007 Legislation
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HOUSE BILL NO. 67 – Sales tax, retailer defined

HOUSE BILL NO. 67

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Bill Status



H0067...............................................by REVENUE AND TAXATION
SALES TAX - Adds to and amends existing law to provide that a "retailer
engaged in business in this state" means any retailer with substantial
nexus in this state, within a specified meaning; to provide conditions when
a retailer has substantial nexus with the state of Idaho, with exceptions;
and to provide application of the definition of "Internal Revenue Code."
                                                                        
01/30    House intro - 1st rdg - to printing
01/31    Rpt prt - Held at Desk
02/05    Ref'd to Rev/Tax

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 67
                                                                        
                             BY REVENUE AND TAXATION COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SALES AND USE TAXES; AMENDING SECTION 63-3611, IDAHO CODE, TO PRO-
  3        VIDE THAT A "RETAILER  ENGAGED  IN  BUSINESS  IN  THIS  STATE"  MEANS  ANY
  4        RETAILER  WITH SUBSTANTIAL NEXUS IN THIS STATE WITHIN A SPECIFIED MEANING;
  5        AMENDING CHAPTER 36, TITLE 63, IDAHO CODE, BY THE ADDITION OF A  NEW  SEC-
  6        TION  63-3615A, IDAHO CODE, TO PROVIDE CONDITIONS WHEN A RETAILER HAS SUB-
  7        STANTIAL NEXUS WITH THE STATE OF IDAHO, WITH  EXCEPTIONS  AND  TO  PROVIDE
  8        APPLICATION OF THE DEFINITION OF "INTERNAL REVENUE CODE"; AND DECLARING AN
  9        EMERGENCY.
                                                                        
 10    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 11        SECTION  1.  That  Section 63-3611, Idaho Code, be, and the same is hereby
 12    amended to read as follows:
                                                                        
 13        63-3611.  RETAILER ENGAGED IN BUSINESS IN THIS STATE. "Retailer engaged in
 14    business in this state" as used in this chapter means any retailer who:
 15        (1)  Engages in recurring solicitation of purchases from residents of this
 16    state or otherwise purposefully directs its business activities  at  residents
 17    of this state; and
 18        (2)  Has  sufficient  contact with this state, in accordance with the con-
 19    stitution of the United States, to allow the state to require  the  seller  to
 20    collect  and  remit use tax on sales of tangible personal property or services
 21    made to customers in this state.
 22        (3)  The term includes any of the following:
 23        (a)  Any retailer maintaining, occupying or using, permanently  or  tempo-
 24        rarily, directly or indirectly, or through a subsidiary or agent, by what-
 25        ever  name  called, an office, place of distribution, sales or sample room
 26        or place, warehouse or storage place, or other place of business or  main-
 27        taining a stock of goods.
 28        (b)  Any retailer having any representative, agent, salesman, canvasser or
 29        solicitor  operating  in this state under the authority of the retailer or
 30        its subsidiary for the purpose of selling, delivering, installing  or  the
 31        taking of orders for any tangible personal property.
 32        (c)  Any  retailer,  with  respect  to a lease or rental, deriving rentals
 33        from a lease or rental of tangible  personal  property  situated  in  this
 34        state.
 35        (d)  Any retailer engaging in any activity in connection with servicing or
 36        installing tangible personal property in this state.
 37        (e)  Any  retailer  owned or controlled by the same interests which own or
 38        control any retailer engaged in business in the same or a similar line  of
 39        business  in  this  state  with substantial nexus in this state within the
 40        meaning of section 63-3615A, Idaho Code.
 41        (f)  Any retailer having a franchisee  or  licensee  operating  under  its
 42        trade  name  if  the franchisee or licensee is required to collect the tax
 43        under the provisions of this section.
                                                                        
                                           2
                                                                        
  1        SECTION 2.  That Chapter 36, Title 63, Idaho Code, be,  and  the  same  is
  2    hereby  amended by the addition thereto of a NEW SECTION, to be known and des-
  3    ignated as Section 63-3615A, Idaho Code, and to read as follows:
                                                                        
  4        63-3615A.  SUBSTANTIAL NEXUS. (1) A retailer has  substantial  nexus  with
  5    this state if both of the following apply:
  6        (a)  The  retailer  and  an  in-state business maintaining one (1) or more
  7        locations within this state are related parties; and
  8        (b)  The retailer and the in-state business use an identical  or  substan-
  9        tially  similar name, tradename, trademark or goodwill to develop, promote
 10        or maintain sales, or the in-state business provides services to, or  that
 11        inure  to the benefit of, the out-of-state business related to developing,
 12        promoting or maintaining the in-state market.
 13        (2)  Two (2) entities are related parties under this section if they  meet
 14    any one (1) of the following tests:
 15        (a)  Both  entities  are component members of the same controlled group of
 16        corporations under section 1563 of the Internal Revenue Code;
 17        (b)  One (1) entity is a related taxpayer to the other  entity  under  the
 18        provisions of section 267 of the Internal Revenue Code;
 19        (c)  One  (1)  entity is a corporation and the other entity and any party,
 20        for which section 318 of the Internal Revenue Code requires an attribution
 21        of ownership of stock from that party to the entity, own  directly,  indi-
 22        rectly,  beneficially,  or  constructively at least fifty percent (50%) of
 23        the value of the outstanding stock of the corporation; or
 24        (d)  One (1) or both entities is a limited liability company, partnership,
 25        estate or trust, none of which is treated as  a  corporation  for  federal
 26        income  tax  purposes,  and  such  limited liability company, partnership,
 27        estate or trust and its members, partners  or  beneficiaries  own  in  the
 28        aggregate  directly,  indirectly, beneficially, or constructively at least
 29        fifty percent (50%) of the profits, capital, stock or value of  the  other
 30        entity or both entities.
 31        (3)  The provisions of this section shall not apply to a retailer that had
 32    sales in this state in the previous year in an amount of less than one hundred
 33    thousand dollars ($100,000).
 34        (4)  The  definition  of "Internal Revenue Code" in section 63-3004, Idaho
 35    Code, shall apply to this section.
                                                                        
 36        SECTION 3.  An emergency existing  therefor,  which  emergency  is  hereby
 37    declared to exist, this act shall be in full force and effect on and after its
 38    passage and approval.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 16451

This legislation amends Section 63-3611 of the Idaho Code to
provide that a "retailer engaged in business in this state" be
defined as any retailer with substantial nexus in this state, and
creates a new Section 63-3615A of the Idaho Code, to define
substantial nexus for any retailer having a franchisee or
licensee operating under its trade name or owned by the same
entity or corporation in the State of Idaho be required to
collect taxes from its customers.                 


                          FISCAL IMPACT

The State Tax Commission's best estimate of the current
revenue gain from passage of RS 16451 is $500,000.



 Contact  
 Name:    Senator Brad Little
 Phone:   332-1303
          Senator Davis
          Senator Stegner
          Senator Hill
          Senator Stennett
          Senator Corder
          Representative Lake
          Representative Jaquet


STATEMENT OF PURPOSE/FISCAL NOTE                          H 67