H. B. 3079
(By Delegates Guthrie, Campbell, White,
Hatfield and Perdue)
[Introduced March 11, 2009; referred to the
Committee on Health and Human Resources then Finance.]
A BILL to amend and reenact §11-15-9i of the Code of West Virginia,
1931, as amended; and to amend and reenact §11-15B-2 and
§11-15B-32 of said code,
to the definition of
"health care provider"; and the definition of "drug,"
exempt from the consumers sales tax drugs purchased by
veterinarians to be dispensed upon prescription for the
medical treatment of animals.
Be it enacted by the Legislature of West Virginia:
§11-15-9i of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §11-15B-2 and §11-15B-32 of said
code be amended and reenacted, all to read as follows:
ARTICLE 15. CONSUMER SALES AND SERVICE TAX.
§11-15-9i. Exempt drugs, durable medical goods, mobility enhancing
equipment and prosthetic devices.
(a) Notwithstanding any provision of this article, article fifteen-a or article fifteen-b of this chapter, the purchase by a
health care provider of `drugs, durable medical goods, mobility
enhancing equipment and prosthetic devices, all as defined in
section two, article fifteen-b of this chapter, to be dispensed
upon prescription and intended for use in the diagnosis, cure,
mitigation, treatment, or prevention of injury or disease
shall be exempt from the tax imposed by this article.
(b) For purposes of this exemption, "health care provider"
means any person licensed to prescribe drugs, durable medical
goods, mobility enhancing equipment and prosthetic devices intended
for use in the diagnosis, cure, mitigation, treatment, or
prevention of injury or disease.
For purposes of this
section, the term "health care provider" includes any hospital,
medical clinic, nursing home, or provider of inpatient hospital
services and any provider of outpatient hospital services,
physician services, nursing services, ambulance services,
surgical services or veterinary services: Provided, That the
amendment to this subsection shall be effective on or after July 1,
(c) This section shall be effective July 1, 2007.
ARTICLE 15B. SALES AND USE TAX ADMINISTRATION.
. -- When used in this article and articles fifteen
and fifteen-a of this chapter, words defined in subsection (b) of this section shall have the meanings ascribed to them in this
in those instances
where a different meaning is
distinctly expressed or the context in which the term is used
clearly indicates that a different meaning is intended by the
(b) Terms defined. --
(1) "Agent" means a person appointed by a seller to represent
the seller before the member states.
(2) "Agreement" means the Streamlined Sales and Use Tax
Agreement as defined in section two-a of this article.
(3) "Alcoholic beverages" means beverages that are suitable
for human consumption and contain one half of one percent or more
of alcohol by volume.
(4) "Bundled transaction" means the retail sale of two or more
products, except real property and services to real property,
where: (i) The products are otherwise distinct and identifiable;
and (ii) the products are sold for one nonitemized 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
(A) "Distinct and identifiable products" does not include:
(i) 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, shoe boxes, dry cleaning garment bags and express
delivery envelopes and boxes;
(ii) 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 product "provided free of
(iii) Items included in the member state's definition of
"sales price", as defined in this section.
(B) The term "one nonitemized 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.
(C) A transaction that otherwise meets the definition of a
"bundled transaction", as defined in this subdivision, is not a
"bundled transaction" if it is:
(i) 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;
(ii) 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
(iii) A transaction that includes taxable products and
nontaxable products and the "purchase price" or "sales price" of
the taxable products is de minimis.
(I) "De minimis" means the seller's "purchase price" or "sales
price" of the taxable products is ten percent or less of the total
"purchase price" or "sales price" of the bundled products.
(II) 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.
(III) Sellers shall use the full term of a service contract to
determine if the taxable products are de minimis; or
(iv) A transaction that includes products taxable at the
general rate of tax and food or food ingredients taxable at a lower
rate of tax and the "purchase price" or "sales price" of the products taxable at the general sales tax rate is de minimis. For
purposes of this subparagraph, the term "de minimis" has the same
meaning as ascribed to it under subparagraph (iii) of this
(v) The "retail sale" of exempt tangible personal property, or
food and food ingredients taxable at a lower rate of tax, and
tangible personal property taxable at the general rate of tax
(I) The transaction includes "food and food ingredients",
"drugs", "durable medical equipment", "mobility-enhancing
equipment", "over-the-counter drugs", "prosthetic devices" or
medical supplies, all as defined in this article; and
(II) Where the seller's "purchase price" or "sales price" of
the taxable tangible personal property taxable at the general rate
of tax is fifty percent or less of the total "purchase price" or
"sales price" of the bundled 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
determination for a transaction.
(5) "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.
(6) "Clothing" means all human wearing apparel suitable for
general use. The following list contains examples and is not
intended to be an all-inclusive list.
(A) "Clothing" shall include:
(i) Aprons, household and shop;
(ii) Athletic supporters;
(iii) Baby receiving blankets;
(iv) Bathing suits and caps;
(v) Beach capes and coats;
(vi) Belts and suspenders;
(viii) Coats and jackets;
(x) Diapers, children and adult, including disposable diapers;
(xi) Ear muffs;
(xiii) Formal wear;
(xiv) Garters and garter belts;
(xvi) Gloves and mittens for general use;
(xvii) Hats and caps;
(xix) Insoles for shoes;
(xx) Lab coats;
(xxv) Rubber pants;
(xxviii) Shoes and shoe laces;
(xxxi) Socks and stockings;
(xxxii) Steel-toed shoes;
(xxxiv) Uniforms, athletic and nonathletic; and
(xxxv) Wedding apparel.
(B) "Clothing" shall not include:
(i) Belt buckles sold separately;
(ii) Costume masks sold separately;
(iii) Patches and emblems sold separately;
(iv) Sewing equipment and supplies including, but not limited
to, knitting needles, patterns, pins, scissors, sewing machines,
sewing needles, tape measures and thimbles; and
(v) Sewing materials that become part of "clothing" including,
but not limited to, buttons, fabric, lace, thread, yarn and zippers.
(7) "Clothing accessories or equipment" means incidental items
worn on the person or in conjunction with "clothing". "Clothing
accessories or equipment" are mutually exclusive of and may be
taxed differently than apparel within the definition of "clothing",
"sport or recreational equipment" and "protective equipment". The
following list contains examples and is not intended to be an
all-inclusive list. "Clothing accessories or equipment" shall
(c) Hair notions, including, but not limited to, barrettes,
hair bows and hair nets;
(g) Sunglasses, nonprescription;
(j) Watches; and
(k) Wigs and hair pieces.
(8) "Certified automated system" or "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.
(9) "Certified service provider" or "CSP" means an agent
certified under the agreement to perform all of the seller's sales
and use tax functions other than the seller's obligation to remit
tax on its own purchases.
(10) "Computer" means an electronic device that accepts
information in digital or similar form and manipulates the
information for a result based on a sequence of instructions.
(11) "Computer software" means a set of coded instructions
designed to cause a "computer" or automatic data processing
equipment to perform a task.
(12) "Delivered" means delivered to the purchaser by means
other than tangible storage media.
(13) "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.
(14) "Dietary supplement" means any product, other than
"tobacco", intended to supplement the diet that:
(A) Contains one or more of the following dietary ingredients:
(i) A vitamin;
(ii) A mineral;
(iii) An herb or other botanical;
(iv) An amino acid;
(v) A dietary substance for use by humans to supplement the
diet by increasing the total dietary intake; or
(vi) A concentrate, metabolite, constituent, extract or
combination of any ingredient described in subparagraph (i) through
(v), inclusive, of this paragraph;
(B) And 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 as
required pursuant to 21 CFR §101.36 or in any successor section of
the Code of Federal Regulations.
(15) "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
(16) "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
(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;
(B) Intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease;
(C) Intended to affect the structure or any function of the
body.The amendment to this subdivision shall apply to
sales made after July 1, 2009.
(17) "Durable medical equipment" means equipment including
repair and replacement parts for the equipment, but does not
include "mobility-enhancing equipment", which:
(A) Can withstand repeated use;
(B) Is primarily and customarily used to serve a medical
(C) Generally is not useful to a person in the absence of
illness or injury; and
(D) Is not worn in or on the body.
(18) "Electronic" means relating to technology having
electrical, digital, magnetic, wireless, optical, electromagnetic
or similar capabilities.
(19) "Eligible property" means an item of a type, such as
clothing, that qualifies for a sales tax holiday exemption in this
(20) "Energy Star qualified product" means a product that
meets the energy efficient guidelines set by the United States
Environmental Protection Agency and the United States Department of
Energy that are authorized to carry the Energy Star label. Covered
products are those listed at www.energystar.gov or successor
(21) "Entity-based exemption" means an exemption based on who
purchases the product or service or who sells the product or
service. An exemption that is available to all individuals shall
not be considered an entity-based exemption.
(22) "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. "Food and food ingredients" does
not include alcoholic beverages, prepared food or tobacco.
(23) "Food sold through vending machines" means food dispensed
from a machine or other mechanical device that accepts payment.
(24) "Fur clothing" means "clothing" that is required to be
labeled as a fur product under the Federal Fur Products Labeling
Act (15 U.S.C. §69) and the value of the fur components in the
product is more than three times the value of the next most valuable tangible component. "Fur clothing" is human-wearing
apparel suitable for general use but may be taxed differently from
"clothing". For the purposes of the definition of "fur clothing",
the term "fur" means any animal skin or part thereof with hair,
fleece or fur fibers attached thereto, either in its raw or
processed state, but shall not include such skins that have been
converted into leather or suede, or which in processing, the hair,
fleece or fur fiber has been completely removed.
(25) "Governing board" means the governing board of the
Streamlined Sales and Use Tax Agreement.
(26) "Grooming and hygiene products" are soaps and cleaning
solutions, shampoo, toothpaste, mouthwash, antiperspirants and sun
tan lotions and screens, regardless of whether the items meet the
definition of "over-the-counter drugs".
(27) "Includes" and "including" when used in a definition
contained in this article is not considered to exclude other things
otherwise within the meaning of the term being defined.
(28) "Layaway sale" means a transaction in which property is
set aside for future delivery to a customer who makes a deposit,
agrees to pay the balance of the purchase price over a period of
time and, at the end of the payment period, receives the property.
An order is accepted for layaway by the seller when the seller
removes the property from normal inventory or clearly identifies
the property as sold to the purchaser.
(29) "Lease" includes rental, hire and license. "Lease" 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.
(A) "Lease" 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 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
subparagraph, an operator must do more than maintain, inspect or
set-up the tangible personal property.
(iv) "Lease" or "rental" includes 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.
(B) 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.
(30) "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.
(31) "Mobility-enhancing equipment" means equipment, including
repair and replacement parts to the equipment, but does not include
"durable medical equipment", which:
(A) 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;
(B) Is not generally used by persons with normal mobility; and
(C) Does not include any motor vehicle or equipment on a motor
vehicle normally provided by a motor vehicle manufacturer.
(32) "Model I seller" means a seller that has selected a
certified service provider 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.
(33) "Model II seller" means a seller that has selected a
certified automated system to perform part of its sales and use tax
functions, but retains responsibility for remitting the tax.
(34) "Model III 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, 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.
(35) "Over-the-counter drug" means a drug that contains a
label that identifies the product as a drug as required by 21 CFR
§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
(36) "Person" means an individual, trust, estate, fiduciary,
partnership, limited liability company, limited liability
partnership, corporation or any other legal entity.
(37) "Personal service" includes those:
(A) Compensated by the payment of wages in the ordinary course
of employment; and
(B) Rendered to the person of an individual without, at the
same time, selling tangible personal property, such as nursing,
barbering, manicuring and similar services.
(38) (A) "Prepared food" means:
(i) Food sold in a heated state or heated by the seller;
(ii) Two or more food ingredients mixed or combined by the
seller for sale as a single item; or
(iii) 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 to
transport the food.
(B) "Prepared food" in subparagraph (ii), paragraph (A) of
this subdivision 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 of 2001 so as to prevent
(C) Additionally, "prepared food" as defined in this
subdivision does not include:
(i) Food sold by a seller whose proper primary NAICS
classification is manufacturing in Sector 311, except Subsection
(ii) Food sold in an unheated state by weight or volume as a
single item; or
(iii) Bakery items, including bread, rolls, buns, biscuits,
bagels, croissants, pastries, donuts, danish, cakes, tortes, pies, tarts, muffins, bars, cookies, tortillas.
(39) "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 this state to issue prescriptions.
(40) "Prewritten computer software" means "computer software",
including prewritten upgrades, which is not designed and developed
by the author or other creator to the specifications of a specific
(A) The combining of two or more prewritten computer software
programs or prewritten portions thereof does not cause the
combination to be other than prewritten computer software.
(B) "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 is considered to be the author or creator only of the
person's modifications or enhancements.
(C) "Prewritten computer software" or a prewritten portion
thereof that is modified or enhanced to any degree, where the
modification or enhancement is designed and developed to the
specifications of a specific purchaser, remains prewritten computer
Provided, That However,
where there is a reasonable, separately stated charge or an invoice or other statement of the
price given to the purchaser for the modification or enhancement,
the modification or enhancement does not constitute prewritten
(41) "Product-based exemption" means an exemption based on the
description of the product or service and not based on who
purchases the product or service or how the purchaser intends to
use the product or service.
(42) "Prosthetic device" means a replacement, corrective or
supportive device, including repair and replacement parts for the
device worn on or in the body, to:
(A) Artificially replace a missing portion of the body;
(B) Prevent or correct physical deformity or malfunction of
the body; or
(C) Support a weak or deformed portion of the body.
(43) "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.
(44) "Purchase price" means the measure subject to the tax
imposed by article fifteen or fifteen-a of this chapter and has the
same meaning as sales price.
(45) "Purchaser" means a person to whom a sale of personal
property is made or to whom a service is furnished.
(46) "Registered under this agreement" means registration by
a seller with the member states under the central registration
system provided in article four of the agreement.
(47) "Retail sale" or "sale at retail" means:
(A) Any sale, lease or rental for any purpose other than for
resale as tangible personal property, sublease or subrent; and
(B) Any sale of a service other than a service purchased for
(48) (A) "Sales price" means the measure subject to the tax
levied under articles fifteen or fifteen-a of this chapter and
includes the total amount of consideration, including cash, credit,
property and services, for which personal property or services are
sold, leased or rented, valued in money, whether received in money
or otherwise, without any deduction for the following:
(i) The seller's cost of the property sold;
(ii) The cost of materials used, labor or service cost,
interest, losses, all costs of transportation to the seller, all
taxes imposed on the seller and any other expense of the seller;
(iii) Charges by the seller for any services necessary to
complete the sale, other than delivery and installation charges;
(iv) Delivery charges; and
(v) Installation charges.
(B) "Sales price" does not include:
(i) Discounts, including cash, term or coupons that are not reimbursed by a third party that are allowed by a seller and taken
by a purchaser on a sale;
(ii) Interest, financing and carrying charges from credit
extended on the sale of personal property, goods or services, if
the amount is separately stated on the invoice, bill of sale or
similar document given to the purchaser; or
(iii) Any taxes legally imposed directly on the consumer that
are separately stated on the invoice, bill of sale or similar
document given to the purchaser.
(C) "Sales price" shall include consideration received by the
seller from third parties if:
(i) The seller actually receives consideration from a party
other than the purchaser and the consideration is directly related
to a price reduction or discount on the sale;
(ii) The seller has an obligation to pass the price reduction
or discount through to the purchaser;
(iii) The amount of the consideration attributable to the sale
is fixed and determinable by the seller at the time of the sale of
the item to the purchaser; and
(iv) One of the following criteria is met:
(I) The purchaser presents a coupon, certificate or other
documentation to the seller to claim a price reduction or discount
where the coupon, certificate or documentation is authorized,
distributed or granted by a third party with the understanding that the third party will reimburse any seller to whom the coupon,
certificate or documentation is presented;
(II) The purchaser identifies himself or herself to the seller
as a member of a group or organization entitled to a price
reduction or discount (a "preferred customer" card that is
available to any patron does not constitute membership in such a
(III) The price reduction or discount is identified as a
third-party price reduction or discount on the invoice received by
the purchaser or on a coupon, certificate or other documentation
presented by the purchaser.
(49) "Sales tax" means the tax levied under article fifteen of
(50) "School art supply" means an item commonly used by a
student in a course of study for artwork. The term is mutually
exclusive of the terms "school supply", "school instructional
material" and "school computer supply" and may be taxed
differently. The following is an all-inclusive list:
(A) Clay and glazes;
(B) Paints; acrylic, tempora and oil;
(C) Paintbrushes for artwork;
(D) Sketch and drawing pads; and
(51) "School instructional material" means written material commonly used by a student in a course of study as a reference and
to learn the subject being taught. The term is mutually exclusive
of the terms "school supply", "school art supply" and "school
computer supply" and may be taxed differently. The following is an
(A) Reference books;
(B) Reference maps and globes;
(C) Textbooks; and
(52) "School computer supply" means an item commonly used by
a student in a course of study in which a computer is used. The
term is mutually exclusive of the terms "school supply", "school
art supply" and "school instructional material" and may be taxed
differently. The following is an all-inclusive list:
(A) Computer storage media; diskettes, compact disks;
(B) Handheld electronic schedulers, except devices that are
(C) Personal digital assistants, except devices that are
(D) Computer printers; and
(E) Printer supplies for computers; printer paper, printer
(53) "School supply" means an item commonly used by a student
in a course of study. The term is mutually exclusive of the terms "school art supply", "school instructional material" and "school
computer supply" and may be taxed differently. The following is an
all-inclusive list of school supplies:
(B) Book bags;
(D) Cellophane tape;
(E) Blackboard chalk;
(G) Composition books;
(J) Folders; expandable, pocket, plastic and manila;
(K) Glue, paste and paste sticks;
(M) Index cards;
(N) Index card boxes;
(O) Legal pads;
(P) Lunch boxes;
(S) Paper; loose-leaf ruled notebook paper, copy paper, graph
paper, tracing paper, manila paper, colored paper, poster board and
(T) Pencil boxes and other school supply boxes;
(U) Pencil sharpeners;
(Z) Scissors; and
(AA) Writing tablets.
(54) "Seller" means any person making sales, leases or rentals
of personal property or services.
(55) "Service" or "selected service" includes all
nonprofessional activities engaged in for other persons for a
consideration which involve the rendering of a service as
distinguished from the sale of tangible personal property, but does
not include contracting, personal services, services rendered by an
employee to his or her employer, any service rendered for resale or
any service furnished by a business that is subject to the control
of the Public Service Commission when the service or the manner in
which it is delivered is subject to regulation by the Public
Service Commission of this state. The term "service" or "selected
service" does not include payments received by a vendor of tangible
personal property as an incentive to sell a greater volume of such
tangible personal property under a manufacturer's, distributor's or
other third-party's marketing support program, sales incentive program, cooperative advertising agreement or similar type of
program or agreement and these payments are not considered to be
payments for a "service" or "selected service" rendered, even
though the vendor may engage in attendant or ancillary activities
associated with the sales of tangible personal property as required
under the programs or agreements.
(56) "Soft drink" means nonalcoholic 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 of vegetable or
fruit juice by volume.
(57) "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" are mutually exclusive of and may
be taxed differently than apparel within the definition of
"clothing", "clothing accessories or equipment" and "protective
equipment". The following list contains examples and is not
intended to be an all-inclusive list. "Sport or recreational
equipment" shall include:
(A) Ballet and tap shoes;
(B) Cleated or spiked athletic shoes;
(C) Gloves, including, but not limited to, baseball, bowling,
boxing, hockey and golf;
(E) Hand and elbow guards;
(F) Life preservers and vests;
(G) Mouth guards;
(H) Roller and ice skates;
(I) Shin guards;
(J) Shoulder pads;
(K) Ski boots;
(L) Waders; and
(M) Wetsuits and fins.
(58) "State" means any state of the United States, the
District of Columbia and the Commonwealth of Puerto Rico.
(59) "Tangible personal property" means personal property that
can be seen, weighed, measured, felt or touched or that is in any
manner perceptible to the senses. "Tangible personal property"
includes, but is not limited to, electricity, steam, water, gas and
prewritten computer software.
(60) "Tax" includes all taxes levied under articles fifteen
and fifteen-a of this chapter and additions to tax, interest and
penalties levied under article ten of this chapter.
(61) "Tax Commissioner" means the State Tax Commissioner or
his or her delegate. The term "delegate" in the phrase "or his or
her delegate", when used in reference to the Tax Commissioner,
means any officer or employee of the State Tax Division duly authorized by the Tax Commissioner directly, or indirectly by one
or more redelegations of authority, to perform the functions
mentioned or described in this article or rules promulgated for
(62) "Taxpayer" means any person liable for the taxes levied
by articles fifteen and fifteen-a of this chapter or any additions
to tax penalties imposed by article ten of this chapter.
(63) "Telecommunications service" or "telecommunication
service" when used in this article and articles fifteen and
fifteen-a shall have the same meaning as that term is defined in
section two-b of this article.
(64) "Tobacco" means cigarettes, cigars, chewing or pipe
tobacco or any other item that contains tobacco.
(65) "Use tax" means the tax levied under article fifteen-a of
(66) "Use-based exemption" means an exemption based on a
specified use of the product or service by the purchaser.
(67) "Vendor" means any person furnishing services taxed by
article fifteen or fifteen-a of this chapter or making sales of
tangible personal property or custom software. "Vendor" and
"seller" are used interchangeably in this article and in articles
fifteen and fifteen-a of this chapter.
(c) Additional definitions
. -- Other terms used in this
article are defined in articles fifteen and fifteen-a of this chapter, which definitions are incorporated by reference into this
article. Additionally, other sections of this article may define
terms primarily used in the section in which the term is defined.
§11-15B-32. Effective date.
(a) The provisions of this article, as amended or added during
the regular legislative session in the year 2003, shall take effect
January 1, 2004, and apply to all sales made on or after that date
and to all returns and payments due on or after that day, except as
otherwise expressly provided in section five of this article.
(b) The provisions of this article, as amended or added during
the second extraordinary legislative session in the year 2003,
shall take effect January 1, 2004, and apply to all sales made on
or after that date.
(c) The provisions of this article, as amended or added by Act
of the Legislature in the year 2004, shall apply to all sales made
on or after the date of passage in the year 2004.
(d) The provisions of this article, as amended or added during
the regular legislative session in the year 2008, shall apply to
all sales made on or after the date of passage and to all returns
and payments due on or after that day, except as otherwise
expressly provided in this article.
(e) The provisions of this article, as amended or added during
the regular legislative session in the year 2009, shall apply to
all sales made on or after the date of passage and to all returns and payments due on or after that day, except as otherwise
expressly provided in this article.
NOTE: The purpose of this bill is to amend the definition of
"health care provider" and "drug" for the purpose of consumers
sales tax. This bill will exempt from the consumers sales tax
drugs purchased by veterinarians to be dispensed upon prescription
for the medical treatment of animals.
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would