 | | Who is Taxing What, Where | |  | | | Alabama: Revised Chart Shows Local Participation in 2011 Tax Holiday
The Alabama Department of Revenue has revised a chart that reflects the latest information concerning the counties and municipalities that have notified the department regarding their participation in the sales tax holiday being held from August 5 through August 7, 2011.
The updated chart reflects the participation by Brent, Midway, and Parrish, which are only participating in 2011. Altoona, Clayhatchee, Gantt, Glen Allen, Kennedy, Lynn, Malvern, New Site, Shorter, and Steele have notified the department that they are not participating in the tax holiday.
District of Columbia: Applicability Date for Exemption for Utilities Used by Restaurants Amended
Recently enacted emergency District of Columbia tax legislation amends Act 18-645 (D.C.B. 18-707), Laws 2010, approved December 28, 2010, which clarifies the application of the sales tax exemption for utilities used for processing and refrigeration in a restaurant or hotel restaurant. The amendment provides that the Act will still apply as of January 1, 2010, provided, however, that its fiscal effect is included in an approved budget and financial plan.
Hawaii: House Passes Nexus Provisions, Reporting Requirements for Sellers Without Physical Presence in State
Legislation passed by the Hawaii House of Representatives includes a so-called “click-through nexus” provision, an expanded nexus provision applicable to all taxes administered by the Department of Taxation, and general excise tax reporting requirements for both remote sellers and in-state sellers that do not have a physical presence in Hawaii. Similar legislation was introduced in the House on January 25, 2011. As passed by the House, the “click-through nexus” and expanded nexus provisions remain substantively the same as the provisions in the introduced legislation. However, the legislation passed by the House proposes amended and additional language for the remote-seller reporting requirement, a new reporting requirement for certain businesses domiciled in Hawaii, and a delayed effective date.
A House amendment to the introduced bill added a delayed effective date to the proposed legislation of July 1, 2112. However, the provision in the introduced bill stating that the legislation would be applicable to taxable years beginning after December 31, 2010, is also contained in the bill passed by the House.
Hawaii: House Passes Temporary Suspension of Numerous Exemptions
The Hawaii House of Representatives has passed legislation that would temporarily suspend numerous general excise and use tax exemptions from January 1, 2012, to June 30, 2015. During the temporary suspension, the previously exempt amounts would be subject to a 2% tax in 2012, a 3% tax in 2013, and a 4% tax from January 1, 2014, to June 30, 2015. Except for certain amounts, the existing exemption for nonprofits generally would not be suspended.
As passed by the House, the legislation also requires information reporting on most general excise and use tax exclusions and exemptions. Certain amounts, persons, and transactions would be eligible for exclusion from the reporting requirement if the Director of Taxation determines such exclusion is in the best interest of tax administration and made by official pronouncement.
Illinois: Click-Through Nexus Legislation Enacted
Illinois Gov. Pat Quinn has signed a so-called “click-through nexus” bill that provides that certain out-of-state sellers are retailers or servicemen maintaining a place of business in Illinois who are, as a result, required to collect use or service use tax on tangible personal property or services sold for use in Illinois.
Beginning July 1, 2011, a retailer is considered a “retailer maintaining a place of business” in Illinois for use tax purposes if: - the retailer has a contract with a person located in Illinois under which the person, for a commission or other consideration based upon the sale of tangible personal property by the retailer, directly or indirectly refers potential customers to the retailer by a link on the person’s Internet website; or
- the retailer has a contract with a person located in Illinois under which the retailer sells the same or substantially similar line of products as the person located in Illinois and does so using an identical or substantially similar name, trade name, or trademark as the person located in Illinois, and the retailer provides a commission or other consideration to the person located in Illinois based upon the sale of tangible personal property by the retailer.
Under each type of contract described above, a retailer is considered an Illinois retailer only if the cumulative gross receipts from sales of tangible personal property under the contract exceed $10,000 during the preceding four quarterly periods ending on the last day of March, June, September, and December.
Similar changes were made to the definition of a “serviceman maintaining a place of business” in Illinois for purposes of the sale of a service under the service use tax.
Illinois: Taxability of Additional Car Rental Charges Discussed
The Illinois Department of Revenue has issued a general information letter advising that charges by a rental car company that are not specifically excluded from gross receipts under the law are subject to the automobile renting occupation and use tax. Gross receipts include all consideration received for the rental of automobiles, except refueling charges and insurance charges. The company often made additional charges on car rentals, including drop charges and charges for child seats, additional drivers and drivers 24 years old or younger.
The department also notes that discounts given to the customer when the car is rented and refunds given to dissatisfied customers are not taxable. General Information Letter ST 11-0001-GIL, Illinois Department of Revenue, January 7, 2011.
Louisiana: Bottled Water Not Exempt
In a Louisiana sales and use tax opinion, the Attorney General stated that the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed of bottled water are not exempt from sales and use taxes imposed by taxing authorities. The sale of the bottled water did not fit into the state law exclusion of “water sold directly to the consumer for residential use,” nor did it fit into the exclusion for water. Specifically, the exclusion for water stated that bottles of water were not exempt. Additionally, the opinion stated that even if water were a food, bottled water would be taxable because that law exempts food sold for preparation in the home and bottled water does not require any preparation in order to be consumed. Opinion No. 10-0296, Louisiana Attorney General, February 16, 2011.
Ohio: Taxability of Landscaping, Lawn Care, and Snow Removal Services Explained
The Ohio Department of Taxation has updated an information release on the applicability of sales and use tax to landscaping, lawn care, and snow removal services. In regards to golf course construction and maintenance, taxable services include laying sod, seeding, and planting preparation to include final shaping, seedbed preparation, and soil amendments. The installation of drainage and irrigation systems would qualify as a taxable sale of tangible personal property, as these items are considered business fixtures. A contract for the installation of cart paths, bridges, and catch basins would be a construction contract, and therefore the contractor would be liable for tax on purchases of tangible personal property used in construction.
"Landscaping and lawn care service" and “snow removal service” are each considered separately for evaluating whether a business is required to register and collect sales tax. For instance, if a business providing both services during the last calendar year had gross sales from landscaping and lawn care service of $5,000 or more, but its gross sales from snow removal service were under $5,000, it must register as a service provider and collect sales tax on only the landscaping and lawn care service. The release also provides a list of activities that qualify as landscaping or snow removal services.
South Dakota: Affiliate Nexus Bill Enacted
Newly signed legislation expands the application of nexus for the purpose of collecting sales and use taxes owed to South Dakota. The new law provides that a retailer is considered to be engaged in the business of selling tangible personal property, services, and products transferred electronically for use in South Dakota if:
- (1) the retailer holds a substantial interest in, or is owned by, a South Dakota retailer, and (2) the retailer sells the same or a substantially similar line of products under the same or similar business name as the related South Dakota retailer, or the in-state facility or in-state employee of the related retailer is used to advertise, promote, or facilitate sales by the retailer to a consumer; or
- the retailer holds a substantial ownership interest in or is owned by a business that maintains a distribution house, sales house, warehouse, or similar place of business in South Dakota that delivers property sold by the retailer to consumers.
The legislation also indicates that electronic processing of orders does not relieve a retailer of responsibility for collecting tax from the purchaser if the retailer is doing business in South Dakota. In addition, the new law creates a rebuttable presumption that any retailer that is part of a controlled group that has a component member that is a retailer engaged in business in South Dakota is also considered a retailer engaged in business in South Dakota.
Lastly, any retailer making sales of tangible personal property to purchasers in South Dakota by mail, telephone, the Internet, or other media that has a contractual relationship with an entity to provide and perform installation, maintenance, or repair services for the retailer’s purchasers within this state is included within the definition of “retailer.” S.B. 147, Laws 2011, July 1, 2011.
South Dakota: Publication on Prepared Foods Updated
The South Dakota Department of Revenue and Regulation has reissued a Tax Facts Sheet to explain how the optional municipal gross receipts tax (MGRT) applies to prepared food. To be subject to the 1% MGRT, the food must be prepared by the seller and be for immediate consumption. The MGRT applies to food or drink that the seller has heated or created by mixing or combining two or more food ingredients to make a single product, or with which the seller has provided utensils.
South Dakota: Remote-Seller Notice Requirements Enacted
South Dakota Governor Dennis Daugaard has signed legislation that requires certain notice requirements for retailers that do not have nexus in South Dakota that are selling tangible personal property, services, or products transferred electronically for use in South Dakota. Out-of-state retailers that are not registered to collect and remit sales and use tax, but sell tangible personal property, services, or products transferred electronically for use in South Dakota, are required to notify buyers that they must pay and report South Dakota use tax on their purchases.
The required notice must be readily visible and contain the following information: (1) the non-collecting retailer is not required to and does not collect South Dakota sales or use tax; (2) the purchase is subject to state use tax unless it is specifically exempt from taxation; (3) the purchase is not exempt merely because the purchase is made over the Internet, by catalog, or by other means; (4) the state requires each South Dakota purchaser to report any purchase that was not taxed and pay tax on the purchase, and the tax may be reported and paid on the South Dakota use tax form; and (5) the use tax form and corresponding instructions are available on the South Dakota Department of Revenue and Regulation website. Additionally, the notice must appear on a page necessary to facilitate the applicable transaction.
A de minimis retailer and a de minimis online auction website are exempt from the notice requirements. A “de minimis retailer” is defined as any non-collecting retailer that made total gross sales in South Dakota in the prior calendar year of less than $100,000 and reasonably expects that South Dakota sales in the current calendar year will be less than $100,000. A “de minimis online auction website” is defined as any online auction website that facilitates total gross sales in South Dakota in the prior calendar year of less than $100,000 and reasonably expects South Dakota sales in the current calendar year to be less than $100,000. S.B. 146, Laws 2011, effective July 1, 2011.
Tennessee: “Click-Through Nexus” Bill Introduced
Legislation introduced in the Tennessee General Assembly would establish a rebuttable presumption for Tennessee sales and use tax purposes that a seller is soliciting sales through an independent contractor if the seller enters into an agreement with a Tennessee resident under which the resident, for a commission or other consideration, refers potential customers, by an Internet website link or otherwise, to the seller, and the seller’s cumulative gross receipts from sales to Tennessee customers referred by residents with such an agreement exceed $4,800 during the preceding four quarterly periods ending on the last day of February, May, August, and November. The presumption would be rebuttable by proof that the resident with whom the seller has an agreement did not engage in any solicitation in Tennessee on behalf of the seller that would satisfy the nexus requirement of the U.S. Constitution during the four quarterly periods in question.
Vermont: “Click-Through Nexus” Bill Passed by House
As part of the flurry of so-called “click-through nexus” bills, the Vermont House of Representatives introduced a bill that would, if enacted, provide that a person making sales that are subject to sales and use tax would be presumed to be soliciting business through an independent contractor, agent, or other representative if the person enters into an agreement with a Vermont resident under which the resident, for a commission or other consideration, directly or indirectly refers potential customers by a link on an Internet website, or by other means, to the person. The presumption would apply only if the cumulative gross receipts from sales by the person to customers in Vermont, who are referred to the person by all residents with this type of agreement with the person, exceed $10,000 during the preceding tax year. The presumption would be able to be rebutted by proof that the resident with whom the person has an agreement did not engage in any solicitation in Vermont on behalf of the person that would satisfy the nexus requirements of the U.S. Constitution during the tax year in question.
If enacted as passed by the House, the legislation would apply to all taxable sales occurring on or after July 1, 2012. As introduced, the legislation would have applied to all taxable sales occurring on or after July 1, 2011.
West Virginia: Legislature Approves Reduction in Food Tax Rate
The West Virginia Legislature has approved a bill that would decrease the sales and use tax rate for food and food ingredients for human consumption from 3% to 2%. The Senate amended the bill (H.B. 2971) to add the reduction in the tax rate for food. The House of Representatives concurred in the amendment. As introduced, the bill solely concerned a technical correction to the definition of “durable medical equipment” to conform to the Streamlined Sales and Use Tax (SST) Agreement.
The governor stated recently that he would call the Legislature into special session following the passage of the budget bill if the Legislature did not pass a reduction in the food tax rate but passed pay raises for teachers and state employees. H.B. 2971 is now eligible for the governor’s signature.
Wyoming: Computer Exemption for Data Processing Services Center Amended
The Wyoming sales and use tax exemption for computer equipment necessary for the operation of a data processing services center has been amended to add prewritten and other computer software and containers used to transport and house computer equipment to the list of qualifying items. The aggregate purchase of qualifying equipment must exceed $2 million in a calendar year.
Equipment for Controlling Computer Environment: In addition, a new exemption is added for qualifying uninterruptible power supplies, back-up power generators, specialized heating and air conditioning equipment, and air quality control equipment used for controlling the computer environment necessary for the operation of a data processing services center, provided that the aggregate purchase of the qualifying equipment exceeds $2 million in a calendar year.
To qualify for the new exemption, the purchaser must show that it (1) will make an initial total capital asset investment of at least $50 million in a physical location in Wyoming or (2) has made a capital investment of at least $50 million in a physical location in Wyoming in the five years preceding April 1, 2011.
Data Center With Multiple Entities Occupying the Facility: If a data center has more than one entity occupying the facility but offers data services as a single entity, the purchaser must demonstrate that all of the requirements for claiming an exemption are met in the aggregate by the entities occupying the facility regardless of multiple ownerships of equipment and buildings.
Exemption Reports: Any person claiming the exemptions above may be required by the Wyoming Department of Revenue to report the amount of taxes exempted each year. The department must report the total dollars exempted to the Wyoming Business Council, which in turn must report the total amount of taxes exempted and number of jobs created or impacted to the Joint Minerals, Business and Economic Development Interim Committee and the Joint Revenue Interim Committee on or before December 1 every four years .
Wyoming: “Food for Domestic Home Consumption” Defined
For Wyoming sales and use tax exemption purposes, the term “food for domestic home consumption” 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 for domestic home consumption” does not include alcoholic beverages, tobacco, or prepared foods.
“Prepared food,” which is excluded from the above exemption, includes the following: - Food sold in a heated state or heated by the seller;
- Two or more food ingredients mixed or combined by the seller for sale as a single item; or
- Food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins or straws.
“Prepared food” does not include: - Food that is only cut, repackaged or pasteurized by the seller;
- Eggs, fish, meat, poultry or foods containing raw animal foods and that are required or recommended to be cooked by the consumer to prevent food-borne illness;
- Food sold by a seller whose proper primary NAICS classification is manufacturing in sector 311, except subsector 3118 dealing with bakeries;
- Food sold in an unheated state by weight or volume as a single item; or
- Bakery items, including bread, rolls, buns, biscuits, bagels, croissants, pastries, donuts, danishes, cakes, tortes, pies, tarts, muffins, bars, cookies, tortillas and other bakery goods, unless the item is sold as prepared food sold with eating utensils provided by the seller.
Ch. 34 (S.F. 99), Laws 2011, effective July 1, 2011. | | | | | | | |  | | | Rate Changes, Authorizations and Extensions | | | | | Michigan: Prepaid Gasoline Rate to Remain Unchanged
The Michigan Department of Treasury has announced that the prepaid gasoline sales tax rate will remain 14.2 cents per gallon through May 31, 2011.
South Carolina: Interest Rate Increased
The interest rate for underpayments and overpayments of South Carolina taxes is increased from 3% to 4% for the period April 1, 2011, through June 30, 2011. However, pursuant to H.B. 4657, Laws 2010, the interest rate on refunds paid from July 1, 2010, through June 30, 2011, is reduced by 3% from the listed rate.
| | | | | | | | | | | Streamlined Sales Tax Developments | | | | | Hawaii: SST Conformity Legislation Passes Senate
Legislation passed by the Hawaii Senate would conform Hawaii general excise tax laws with the provisions of the Streamlined Sales and Use Tax (SST) Agreement. Similar legislation was introduced in the Hawaii House of Representatives and the Senate on January 25, 2011. The legislation passed by the Senate is substantively the same as the introduced legislation. However, as introduced, the legislation would have become generally effective if and when Hawaii becomes a party to the SST Agreement, but the legislation passed by the Senate would provide for a delayed effective date of July 1, 2050. In addition, the Senate amendment to the introduced legislation changes the percentages in the proposed legislation to blank amounts.
Massachusetts: SST Conformity Legislation Introduced
Legislation has been introduced in Massachusetts that would conform the state’s laws to the Streamlined Sales and Use Tax (SST) Agreement, effective on the first day of the 12th month following passage. The bill includes definitions, sourcing rules, exemption certificate and registration requirements, and amnesty provisions for sellers.
Wisconsin: Exemption Certificates, Discount/Membership Cards, and More Discussed
A Wisconsin Department of Revenue sales and use tax report discusses a presentation regarding the administration of exemption certificate provisions in Streamlined Sales and Use Tax (SST) Agreement member states, discount/membership cards, and other matters. The report also summarizes the following items: - the tax treatment of online seminars;
- exemption certificate requirements for sellers of propane; and
- the registration of snowmobiles and all-terrain vehicles (ATVs) in Wisconsin by nonresidents.
Exemption Certificates: A presentation by the SST Governing Board’s audit committee explains how SST member states administer the provisions relating to sales and use tax exemption certificates received by sellers. The presentation discusses the requirements of obtaining exemption certificates, what information is required to be entered on the exemption certificates, how incomplete exemption certificates will be handled, and “good faith.”
Discount/Membership Cards: Membership fees charged by a retailer that allow the purchaser of the membership to purchase taxable products from the retailer are subject to Wisconsin sales and use tax. Membership fees charged by a retailer that only allow the purchaser of the membership to purchase nontaxable products from the retailer are exempt.
Membership fees charged by a retailer to a customer that allow the customer to purchase both taxable and nontaxable products from the retailer are subject to tax to the same extent the products being purchased are subject to tax. If the retailer does not know the percentage of taxable products being purchased by the customer at the time the membership is sold, the retailer may charge tax on the entire membership fee. The retailer is liable for tax on the entire membership fee, unless the retailer can document the amount of its nontaxable sales to the customer.
A retailer is not liable for tax on its receipts from membership fees charged to: - customers who provide the retailer with fully completed continuous exemption certificates (Form S-211 or Form S-211-SST) that claim a valid exemption on all of their purchases from the retailer; or
- Wisconsin governmental units, federal governmental units, and certain nonprofit organizations that hold a Wisconsin certificate of exempt status (CES) number.
| | | | | | | | | | | Telecommunications | | | | | All States: Federal Bills Would Bar New Discriminatory Mobile Service Taxes
States and localities would be prohibited for five years from imposing “a new discriminatory tax” on mobile services, mobile service providers, or mobile service property under legislation introduced in both houses of the U.S. Congress on March 10, 2011. The Wireless Tax Fairness Act of 2011 was introduced in the U.S. Senate by Sen. Ron Wyden, D-Ore., and seven cosponsors from both parties, and in the U.S. House of Representatives by Rep. Zoe Lofgren, D-Calif., and 144 cosponsors from both parties. The bills are similar to legislation introduced by Sen. Wyden and Rep. Lofgren in the previous Congress. A new discriminatory tax would be one imposed on mobile services, mobile service providers, or mobile service property that is not generally imposed, or is generally imposed at a lower rate, on services or transactions, businesses, or commercial or industrial property that does not involve mobile service. A grandfather clause would exempt from the prohibition a tax that was imposed and actually enforced on mobile services, mobile service providers, or mobile service property prior to the enactment of this legislation.
Texas: Court Rules Universal Service Fund Payments to AT&T are Taxable Income
At issue in the case brought before the U.S. Court of Appeals for the Fifth Circuit, sitting in New Orleans, was the question of how to characterize AT&T’s receipt of State and Federal USF monies for purposes of the Federal Income Tax: Was it taxable income, or a capital contribution? The District Court for the Western District of Texas in San Antonio opined that the money AT&T was paid was taxable income, and the Appellate Court here has affirmed that verdict. (AT&T, INC., Plaintiff-Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee, Case No. 09-50651, United States Court of Appeals, Fifth Circuit, Filed January 4, 2011.)
The case turned on whether AT&T could claim that the very considerable money – well over $1½ billion with a “b” — that it was paid out of the United States Federal and the Texas, Kansas and California State Universal Service Funds in 1998 and 1999 to subsidize and compensate AT&T for its “decreased revenue” from providing telecom service to low-income users who can’t afford full-price service and its “added costs” for connecting to high-cost/difficult-to-serve portions of the state, “should be treated as capital contributions, not income.” Its argument ran, in part, that the money from the Funds was for the purpose of building the additional infrastructure needed to supply service to remote and isolated portions of the states. The Courts, however, have found that the payments were, instead, “supplements to AT&T’s gross income to enable it to provide universal service programs.”
In arriving at its decision, the District Court deemed the intent of the Funds in making the payments to be key (“AT&T, Inc. v. United States of America,” Civil Action SA-07-CV-0197). As restated by the Appellate Court, “whether a payment to a corporation by a non-shareholder is income or a capital contribution to the corporation is controlled by the intention or motive of the transferor. When the transferor is a governmental entity, its intent may be manifested by the laws or regulations by which it effectuates the payment.”
The lower court held:
"[T]he undisputed facts and applicable law demonstrate that the government payors of USF support payments did not intend to make capital contributions to AT&T in making payments from the USFs; and that they instead intended to supplement the carriers’ operating income by compensating them for some of their costs of servicing high-cost customers and by reimbursing carriers for discounts that they were required to give low-income consumers."
It additionally cited consistent rulings from the 11th Circuit and from the Southern District of Georgia. Ultimately, the higher court also found against AT&T for “having failed to demonstrate that the USF payments had more than one or two of the essential characteristics of a capital contribution.”
Wisconsin: U.S. Cellular Accuses Verizon/CellCo of Receiving USF Money to Which it isn’t Entitled
In early February, U.S. Cellular Operating Company LLC (&ldqu;U.S. Cellular”) filed with the Wisconsin PSC a complaint against a competitor, Cellco Partnership, Doing Business As Verizon Wireless (“Cellco”), claiming that Cellco was illegally helping itself to USF funds properly designated for entities that Cellco had acquired by merger in early 2009 (including Alltel Communications, LLC), despite the fact that Cellco itself was NOT an Eligible Telecommunications Carrier certified to receive such money in Wisconsin.
The filing additionally complained that Cellco was guilty of “receiving high cost support for the existing [’legacy’] Verizon Wireless network in Wisconsin, despite the fact that Verizon Wireless has never been designated as an ETC” in the state, and that as a consequence of Cellco’s malfeasance, Wisconsin was losing millions of dollars “in annual high-cost support that would otherwise have been used for the provision, maintenance and upgrading of supported services in Wisconsin’s rural areas, to the detriment of U.S. Cellular, other competitive ETC’s, and residents of rural areas of the state” (United States Cellular Operating Company, LLC, Complaint and Request to Open Docket, ¶ 9 (Docket No. 8163-TI-100)).
Over the course of the month of February, the Wisconsin PSC received numerous submissions in evidence from Cellco, including most recently its Response (and Motion to Dismiss), in which it pushes back against U.S. Cellular on several fronts.
Along with its general denial of wrongdoing and challenge to the facts alleged, Cellco accuses U.S. Cellular of, among other things, launching a “collateral attack” on an FCC determination (“Dissatisfied with the FCC’s decision, US Cellular is now seeking another forum to try to obtain a different result,“ Response of Cellco Partnership, § I), and of moving against it in an inappropriate forum, since matters involving USF distributions are properly to be brought before the FCC and the Universal Service Administrative Company (“USAC”) at the Federal jurisdictional level, not the state (Response, § II).
Additionally, Cellco claims that, because it has so thoroughly “integrated” its acquired Alltel customers into its service and billing networks, “it is no longer feasible” for it to distinguish between its pre-merger and post-merger subscribers (or to clarify the consequent access line counts, for that matter). It further says that distinctions among providers and their customers can get blurred in other ways, as well, during the course of such a complicated merger-and-acquisition between a designated ETC and a non-ETC.
Then (and at length), in the “RESPONSE TO SPECIFIC ALLEGATIONS” section of its Response, Cellco quibbles with as many of U.S. Cellular’s assertions as the imaginations of its lawyers can conceivably put forth, characterizing them as “legally and factually incorrect.”
It is likely that U.S. Cellular will come up with its own detailed reply in answer to the salvo from Cellco.
Of possible note (and “collateral” relevance) here may be the observation that, in addressing a remarkably similar set of circumstances in a different venue, an administrative ruling has just recently (on February 21st) been handed down against Cellco and in favor of a complaint brought by Allied Wireless Communications Corporation and Georgia RSA #8 Partnership, in a proceeding before the Georgia Public Service Commission (“Order on Joint Petition for Declaratory Ruling" in Georgia PSC Docket No. 33387).
Additionally, we note that questions of a similar nature also involving Cellco have been raised in formal proceedings currently pending before the Public Utility Commissions of Florida, Michigan, and Nevada.
Vermont: Order Asserting State Jurisdiction of VOIP Service Will Stand, for Now
The Vermont Public Service Board has issued an Order denying a Motion for Reconsideration brought by Comcast Phone of Vermont LLC (“Comcast”) which sought reversal of a ruling from October 2010 that established the premise that the Federal preemption of states’ power to regulate “nomadic” Voice Over Internet Protocol does not extend to the provision of “fixed” VOIP service, and that, consequently, the ability to assert such power resides appropriately at the state level (“Order Denying Motion to Alter,” entered 2/11/11 in Investigation into regulation of Voice over Internet Protocol (“VoIP”) services, Vermont PSB Docket No. 7316).
“We reject Comcast Phone’s claim of ’plain error’ because it rests on a selective reading and mischaracterization of the [10/10] Order” and because the provider “has made a filing containing arguments that do not differ from those previously raised by Comcast Phone and decided by the Board.”
Among the findings of the Board last fall had been its conclusion that, to the extent not preempted by action of the Federal Communications Commission, VOIP services such as the “Comcast Digital Voice” offering in Vermont fell within the state’s definition of “telecommunications service” for regulatory purposes, thus refuting Comcast’s contention that all VOIP had to be classified as “information service” subject to exclusive Federal jurisdiction.
The bulk of the debate between Comcast and the PSB focuses on fine questions concerning the multiple possible bases pursuant to which the FCC can carve out a preemption of state authority to regulate telecom, and of the limits of such preemptions depending upon which basis is being invoked to preempt regulation of which “flavor” of VOIP service. The Public Service Board’s denial of Comcast’s Motion points out that there are alternative bases for asserting preemption, “the applicability of which we have not yet ruled upon in this Docket,” leaving open the possibility of future rulings on different grounds. | | | | | | | | | | | Taxing the Fun Out of It | | | | | Indiana: Guidance on Professional Motor Racing Vehicle Exemption Updated
The Indiana Department of Revenue has updated its bulletin on the sales and use tax exemption available to professional motor racing teams. The bulletin is revised to provide that, effective April 1, 2011, transactions involving the purchase, lease, or operation of a qualified part of a motor racing vehicle, as described in the bulletin, by professional racing teams are exempt from Indiana sales and use tax, including replacement, rebuilding and component parts. Tires and accessories are not exempt.
The bulletin provides that a complete motor racing vehicle is comprised of chassis, engines, and their component parts. The bulletin also contains definitions for “chassis,” “engines,” “professional racing teams,” “tires” and “accessories.”
An Indiana-based professional racing team that wants to claim the exemption when buying items must claim the exemption on Form ST-105, General Sales Tax Exemption Certificate. | | | | | | | | | | | | | | | |
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To request product information or to order call us today at 866-513-CORP (866-513-2677), send an email to LearnMore@SalesTax.com. | | | | | | | | | | |
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