hb 1451

CHAPTER 219

HB 1451-FN-A - FINAL VERSION

AN ACT implementing the Mobile Telecommunications Sourcing Act and relative to the telecommunications equipment assistance program.

SPONSORS: Rep. Alukonis, Hills 23; Rep. Major, Rock 16; Sen. D'Allesandro, Dist 20

This bill incorporates the provisions of the Mobile Telecommunications Sourcing Act, Public Law 106-252, into the communications services tax.

The bill also changes the definition of "qualified person" for purposes of the telecommunications equipment assistance program.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT implementing the Mobile Telecommunications Sourcing Act and relative to the telecommunications equipment assistance program.

Be it Enacted by the Senate and House of Representatives in General Court convened:

219:1 Communications Services Tax; Statement of Purpose. Amend RSA 82-A:1 to read as follows:

82-A:1 Statement of Purpose. It is the intent of the general court to impose a tax on those who use 2-way communications services and to source mobile telecommunications services to the place of primary use. It is also the intent of the general court that basic communications services essential to public health, safety, and welfare shall not be subject to the tax imposed by this chapter.

219:2 Definition; Communications Services. Amend the introductory paragraph of RSA 82-A:2, III to read as follows:

III. "Communications services" means services for transmitting, emitting, or receiving signs, signals, writing, images, sounds or intelligence of any nature by any electromagnetic system capable of 2-way communication and includes, without limitation, messages or information transmitted through use of local, toll and wide area telephone service; private line services and networks, whether leased, rented or owned; channel services; telegraph services; teletypewriter services; cable television; computer exchange services; [~~cellular~~] mobile telecommunications services; facsimile services; specialized mobile radio; stationary 2-way radio; paging services; or any other form, whether stationary, portable or mobile, of 2-way communications; or any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber-optics, laser, microwave, radio, satellite or similar facilities. "Communications services" shall not include:

XIV. "Taxpayer" means a person who individually or through his or her agents, employees or permittees uses communications services in this state and who incurs a tax liability under this chapter. For purposes of the tax imposed by this chapter on mobile telecommunications services, "taxpayer" has the same meaning as "customer."

219:4 New Paragraphs; Definitions Added. Amend RSA 82-A:2 by inserting after paragraph XIV the following new paragraphs:

XV. "Charges for mobile telecommunications services" means any charge for, or associated with, the provision of commercial mobile radio service, as defined in section 20.3 of title 47 of the Code of Federal Regulations as in effect on June 1, 1999, or any charge for, or associated with, a service provided as an adjunct to a commercial mobile radio service, that is billed to the taxpayer by or for the taxpayer's home service provider regardless of whether individual transmissions originate or terminate within the licensed service area of the home service provider.

XVI. "Customer," when used in relation to mobile telecommunications services, means the person or entity that contracts with the home service provider for mobile telecommunications service, or, if the end user of mobile telecommunications service is not the contracting party, the end user of the mobile telecommunications service, provided, however, that this clause only applies for the purpose of determining the place of primary use. "Customer" does not include a serving carrier under an arrangement to serve the customer outside the home service provider's licensed service area.

XVII. "Enhanced zip code" means a United States postal zip code of 9 or more digits.

XVIII. "Home service provider" means the facilities-based carrier or reseller with which the taxpayer contracts for the provision of mobile telecommunications services.

XIX. "Licensed service area" means the geographic area in which the home service provider is authorized by law or contract to provide commercial mobile radio services to the taxpayer.

XX. "Mobile telecommunications service" means commercial mobile radio service, as defined in section 20.3 of title 47 of the Code of Federal Regulations as in effect on June 1, 1999.

XXI. "Place of primary use" means the street address representative of where the taxpayer's use of the mobile telecommunications service primarily occurs, which must be:

(a) Either the residential street address or the primary business street address of the taxpayer; and

XXII. "Serving carrier" means a facilities-based carrier providing mobile telecommunications service to a taxpayer outside the home service provider's licensed service area.

219:5 Exception; Mobile Telecommunications Services. Amend RSA 82-A:4 to read as follows:

82-A:4 Imposition of Tax; Interstate Communications Services. Except as provided in RSA 82-A:4-b, a tax is imposed upon interstate communications services furnished to a person in this state and purchased at retail from a retailer by such person, at the rate of 4.5 percent of the gross charge when such service is originated in this state and terminated outside this state or originated outside this state and terminated in this state. To prevent actual multi-state taxation of communications services that are subject to taxation under this section, any taxpayer, upon proof that that taxpayer has paid a tax in another state on such services, shall be allowed a credit against the tax imposed in this section to the extent of the amount of such tax properly due and paid in such other state. However, such tax is not imposed on communications services to the extent such services may not, under the Constitution and statutes of the United States, be made the subject of taxation by the state.

219:6 New Section; Special Rules for Mobile Telecommunications Services. Amend RSA 82-A by inserting after section 4-a the following new section:

I. A tax is imposed on intrastate and interstate communication services that are mobile telecommunications services deemed to be provided by the taxpayer's home service provider whose territorial limits encompass the taxpayer's place of primary use, regardless of where the mobile telecommunication services originate, terminate, or pass through. The tax shall be imposed on the gross charge at the rate specified in RSA 82-A:3 and RSA 82-A:4. No tax shall be imposed on a customer whose place of primary use is outside this state.

II. Mobile telecommunications services provided to a taxpayer, the charges for which are billed by or for the taxpayer's home service provider, are deemed to be provided by the home service provider. Intrastate mobile telecommunications services provided by a home service provider are subject to the tax imposed by this chapter if they are billed to a taxpayer with a place of primary use in this state and they originate and terminate in this state or originate and terminate in any single state. Interstate mobile telecommunications services provided by a home service provider are subject to the tax imposed by this chapter if they are billed to a taxpayer with a place of primary use in this state and they originate in one state and terminate in another state.

III. In order to assign the place of primary use for mobile telecommunications services pursuant to the Mobile Telecommunications Sourcing Act, Public Law 106-252, the commissioner may choose whether to furnish home service providers with a database that matches addresses with taxing jurisdictions or to allow home service providers to employ an enhanced zip code in lieu of providing a database. A home service provider that uses a database furnished by the commissioner or, if no database is provided, an enhanced zip code shall be held harmless from any tax, charge, or fee liability that otherwise would be due solely as a result of reliance of on such database or enhanced zip code, provided that the provisions of 4 U.S.C. sections 119, 120, and 121 are followed by the home service provider.

IV.(a) A home service provider shall be responsible for obtaining and maintaining the taxpayer's place of primary use.

(b) If the home service provider relies, in good faith, on the information provided by the taxpayer such home service provider shall not be liable for any additional taxes, charges or fees based on a different determination by the department of the place of primary use. The home service provider shall change the place of primary use determined by the department on a prospective basis commencing on the date of notification by the department.

(c) Subject to subparagraph (b), a home service provider may treat the address used by the home service provider for tax purposes for any taxpayer under a service contract or agreement in effect prior to July 28, 2002 as the place of primary use for the remaining term of such service contract, excluding any extension or renewal of such service contract or agreement.

V.(a) Any taxpayer who alleges that an amount of tax, or the assignment of the place of primary use or taxing jurisdiction included in the billing is erroneous shall notify the home service provider in writing of the error. The taxpayer shall include the street address for the taxpayer's place of primary use, the account name and number for which the correction is sought, a description of the alleged error, and any other information requested by the home service provider necessary to process the request.

(b) The home service provider shall conduct a review of its records and the electronic database or enhanced zip code used to determine the place of primary use within 60 days of receiving the notice from the taxpayer. If it is determined that the amount of tax or the assignment of the place or primary use or taxing jurisdiction is in error, the home service provider shall correct the error and refund or credit the amount of tax erroneously collected from the taxpayer for a period of 3 years. If it is determined that the amount of tax or the assignment of the place of primary use or taxing jurisdiction is correct, the home service provider shall provide a written explanation to the taxpayer.

(c) A taxpayer seeking correction of assignment of place of primary use or taxing jurisdiction, or a refund or credit of taxes erroneously collected by the home service provider shall seek to have the error corrected pursuant to these provisions before any cause of action arises as a result of such error.

VI. In instances where the home service provider does not separately list charges for taxable and non-taxable mobile telecommunications services, such charges shall be subject to the taxes imposed by this chapter, unless the home service provider can reasonably identify charges not subject to such tax from its books and records kept in the ordinary course of business. A taxpayer may not rely upon the nontaxability of charges for mobile telecommunications services unless the taxpayer's home service provider separately states the charges for nontaxable mobile telecommunications services from taxable charges or the home service provider elects, after receiving written notice from the taxpayer in the form required by the provider, to provide verifiable data based upon the home service provider's books and records that are kept in the regular course of business that reasonably identify the nontaxable charges.

219:7 Nonseverability. If a court of competent jurisdiction enters a final judgment on the merits that is based on federal law, is no longer subject to appeal, and substantially limits or impairs the essential elements of sections 116 through 126 of Title 4 U.S.C., then all provisions and applications of sections 1-6 of this act are declared invalid and shall have no legal effect as of the date of entry of such judgment.

219:8 Applicability. The provisions of sections 1-6 of this act shall apply to taxpayer invoices issued by home service providers after August 1, 2002.

219:9 Telecommunications Equipment Assistance Program; Definition of Qualified Person. Amend RSA 362-E:1, IV to read as follows:

IV. "Qualified person" means a person who is [~~deaf, hard of hearing, speech impaired, or~~] unable to reasonably use standard telephone equipment due to a [~~hearing or speech~~] disability, such as being deaf, hard of hearing, speech impaired, paraplegic, or unable to use his or her arms.