A937

An Act revising the sales and use tax to specify certain persons deemed to be sellers and to clarify the tax collection responsibilities of certain other persons and agents, amending P.L.1966, c.30.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1966, c.30 (C.54:32B-2) is amended to read as follows:

2. Unless the context in which they occur requires otherwise, the following terms when used in this act shall mean:

(a) “Person” includes an individual, trust, partnership, limited partnership, limited liability company, society, association, joint stock company, corporation, public corporation or public authority, estate, receiver, trustee, assignee, referee, fiduciary and any other legal entity.

(b) “Purchase at retail” means a purchase by any person at a retail sale.

(d) “Receipt” means the amount of the sales price of any tangible personal property, specified digital product or service taxable under this act.

(e) “Retail sale” means any sale, lease, or rental for any purpose, other than for resale, sublease, or subrent.

(1) For the purposes of this act a sale is for “resale, sublease, or subrent” if it is a sale (A) for resale either as such or as converted into or as a component part of a product produced for sale by the purchaser, including the conversion of natural gas into another intermediate or end product, other than electricity or thermal energy, produced for sale by the purchaser, (B) for use by that person in performing the services subject to tax under subsection (b) of section 3 where the property so sold becomes a physical component part of the property upon which the services are performed or where the property so sold is later actually transferred to the purchaser of the service in conjunction with the performance of the service subject to tax, (C) of telecommunications service to a telecommunications service provider for use as a component part of telecommunications service provided to an ultimate customer, or (D) to a person who receives by contract a product transferred electronically for further commercial broadcast, rebroadcast, transmission, retransmission, licensing, relicensing, distribution, redistribution or exhibition of the product, in whole or in part, to another person, other than rights to redistribute based on statutory or common law doctrine such as fair use.

(2) For the purposes of this act, the term “retail sale” includes: sales of tangible personal property to all contractors, subcontractors or repairmen of materials and supplies for use by them in erecting structures for others, or building on, or otherwise improving, altering, or repairing real property of others.

(3) (Deleted by amendment, P.L.2005, c.126).

(4) The term “retail sale” does not include:

(A) Professional, insurance, or personal service transactions which involve the transfer of tangible personal property as an inconsequential element, for which no separate charges are made.

(B) The transfer of tangible personal property to a corporation, solely in consideration for the issuance of its stock, pursuant to a merger or consolidation effected under the laws of New Jersey or any other jurisdiction.

(D) The distribution of property by a partnership to its partners in whole or partial liquidation.

(E) The transfer of property to a corporation upon its organization in consideration for the issuance of its stock.

(F) The contribution of property to a partnership in consideration for a partnership interest therein.

(G) The sale of tangible personal property where the purpose of the vendee is to hold the thing transferred as security for the performance of an obligation of the seller.

(f) “Sale, selling or purchase” means any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service, taxable under this act, for a consideration or any agreement therefor.

(g) “Tangible personal property” means personal property that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses. “Tangible personal property” includes electricity, water, gas, steam, and prewritten computer software including prewritten computer software delivered electronically.

(h) “Use” means the exercise of any right or power over tangible personal property, specified digital products, services to property or products, or services by the purchaser thereof and includes, but is not limited to, the receiving, storage or any keeping or retention for any length of time, withdrawal from storage, any distribution, any installation, any affixation to real or personal property, or any consumption of such property or products. Use also includes the exercise of any right or power over intrastate or interstate telecommunications and prepaid calling services. Use also includes the exercise of any right or power over utility service. Use also includes the derivation of a direct or indirect benefit from a service.

(i) “Seller” means a person making sales, leases or rentals of personal property or services.

(1) The term “seller” includes:

(A) A person making sales, leases or rentals of tangible personal property, specified digital products or services, the receipts from which are taxed by this act;

(B) A person maintaining a place of business in the State or having an agent maintaining a place of business in the State and making sales, whether at such place of business or elsewhere, to persons within the State of tangible personal property, specified digital products or services, the use of which is taxed by this act;

(C) A person who solicits business either by employees, independent contractors, agents or other representatives or by distribution of catalogs or other advertising matter and by reason thereof makes sales to persons within the State of tangible personal property, specified digital products or services, the use of which is taxed by this act;

(D) Any other person making sales to persons within the State of tangible personal property, specified digital products or services, the use of which is taxed by this act, who may be authorized by the director to collect the tax imposed by this act;

(E) The State of New Jersey, any of its agencies, instrumentalities, public authorities, public corporations (including a public corporation created pursuant to agreement or compact with another state) or political subdivisions when such entity sells services or property of a kind ordinarily sold by private persons;

(F) (Deleted by amendment, P.L.2005, c.126);

(G) A person who sells, stores, delivers or transports energy to users or customers in this State whether by mains, lines or pipes located within this State or by any other means of delivery;

(H) A person engaged in collecting charges in the nature of initiation fees, membership fees or dues for access to or use of the property or facilities of a health and fitness, athletic, sporting or shopping club or organization; and

(I) A person engaged in the business of parking, storing or garaging motor vehicles.

(2) [In addition, when in the opinion of the director it is necessary for the efficient administration of this act to treat any salesman, representative, peddler or canvasser as the agent of the seller, distributor, supervisor or employer under whom the agent operates or from whom the agent obtains tangible personal property or a specified digital product sold by the agent or for whom the agent solicits business, the director may, in the director’s discretion, treat such agent as the seller jointly responsible with the agent’s principal, distributor, supervisor or employer for the collection and payment over of the tax. A person is an agent of a seller in all cases, but not limited to such cases, that: (A) the person and the seller have the relationship of a “related person” described pursuant to section 2 of P.L.1993, c.170 (C.54:10A-5.5); and (B) the seller and the person use an identical or substantially similar name, tradename, trademark, or goodwill, to develop, promote, or maintain sales, or the person and the seller pay for each other’s services in whole or in part contingent upon the volume or value of sales, or the person and the seller share a common business plan or substantially coordinate their business plans, or the person provides services to, or that inure to the benefit of, the seller related to developing, promoting, or maintaining the seller’s market] (Deleted by amendment, P.L. , c. ) (pending before the Legislature as this bill).

(3) A person shall be deemed to be a seller if:

(A) Both of the following conditions are met:

(i) the person holds a substantial ownership interest in, or is owned in whole or in substantial part by, a person maintaining a place of business within this State, and

(ii) the person sells the same or a similar line of products as a related person in this State and does so under the same or a similar business name, or the person uses the in-State facilities or the in-State employees of a related person in this State to advertise, promote or facilitate sales to customers;

(B) The person holds a substantial ownership interest in, or is owned in whole or substantial part by, a business that maintains an office, distribution facility, sales or sample facility, warehouse or storage place or other similar place of business in this State that delivers tangible personal property or specified digital products sold by the person to customers;

(D) The person is engaged in the business of selling tangible personal property, specified digital products or services, the use of which is taxed by P.L.1966, c.30 (C.54:32B-1 et seq.), and an affiliated person uses in this State a trademark, service mark or trade name that is the same as a trademark, service mark or trade name used by the person who is engaged in the business of selling tangible personal property, specified digital products or services, the use of which is taxed by P.L.1966, c.30 (C.54:32B-1 et seq.).

(4) A person who is part of a controlled group of corporations, and that controlled group of corporations has a component member that is a seller engaged in business in this State as described in paragraph (3) of this subsection, shall be presumed to be a seller engaged in business in this State. This presumption may be rebutted by evidence that during the period for which a return is required to be filed, or for such lesser interval as shall have been designated by the director, the component member that is a seller engaged in business in this State did not engage in any of the activities described in this subsection on behalf of the person who is part of a controlled group of corporations.

(5) A person who makes sales of tangible personal property, directly or through a subsidiary or other related entity, to purchasers in this State by mail, telephone, the Internet or any other media, and who has a contractual relationship with an entity to provide and perform delivery, installation, assembly, or maintenance services for that person’s purchasers within the State shall be deemed to be a seller.

(6) In addition, when in the opinion of the director it is necessary for the efficient administration of this subsection to regard a salesperson, representative, independent contractor, solicitor, trucker, peddler or canvasser operating in this State as an agent of the dealer, distributor, supervisor, employer or person under whom the agent operates or from whom the agent obtains the tangible personal property sold by the agent, regardless of whether the agent is making sales on the agent’s behalf or on behalf of such dealer, distributor, supervisor, employer, or person, the director may so regard the agent and may regard the dealer, distributor, supervisor, employer, or person as a seller for purposes of this subsection.

(j) “Hotel” means a building or portion of it which is regularly used and kept open as such for the lodging of guests. The term “hotel” includes an apartment hotel, a motel, boarding house or club, whether or not meals are served.

(k) “Occupancy” means the use or possession or the right to the use or possession, of any room in a hotel.

(l) “Occupant” means a person who, for a consideration, uses, possesses, or has the right to use or possess, any room in a hotel under any lease, concession, permit, right of access, license to use or other agreement, or otherwise.

(m) “Permanent resident” means any occupant of any room or rooms in a hotel for at least 90 consecutive days shall be considered a permanent resident with regard to the period of such occupancy.

(n) “Room” means any room or rooms of any kind in any part or portion of a hotel, which is available for or let out for any purpose other than a place of assembly.

(o) “Admission charge” means the amount paid for admission, including any service charge and any charge for entertainment or amusement or for the use of facilities therefor.

(p) “Amusement charge” means any admission charge, dues or charge of a roof garden, cabaret or other similar place.

(q) “Charge of a roof garden, cabaret or other similar place” means any charge made for admission, refreshment, service, or merchandise at a roof garden, cabaret or other similar place.

(r) “Dramatic or musical arts admission charge” means any admission charge paid for admission to a theater, opera house, concert hall or other hall or place of assembly for a live, dramatic, choreographic or musical performance.

(s) “Lessor” means any person who is the owner, licensee, or lessee of any premises, tangible personal property or a specified digital product which the person leases, subleases, or grants a license to use to other persons.

(t) “Place of amusement” means any place where any facilities for entertainment, amusement, or sports are provided.

(u) “Casual sale” means an isolated or occasional sale of an item of tangible personal property or a specified digital product by a person who is not regularly engaged in the business of making retail sales of such property or product where the item of tangible personal property or the specified digital product was obtained by the person making the sale, through purchase or otherwise, for the person’s own use.

(v) “Motor vehicle” includes all vehicles propelled otherwise than by muscular power (excepting such vehicles as run only upon rails or tracks), trailers, semitrailers, house trailers, or any other type of vehicle drawn by a motor-driven vehicle, and motorcycles, designed for operation on the public highways.

(w) “Persons required to collect tax” or “persons required to collect any tax imposed by this act” includes: every seller of tangible personal property, specified digital products or services; every recipient of amusement charges; every operator of a hotel; every seller of a telecommunications service; every recipient of initiation fees, membership fees or dues for access to or use of the property or facilities of a health and fitness, athletic, sporting or shopping club or organization; and every recipient of charges for parking, storing or garaging a motor vehicle. Said terms shall also include any officer or employee of a corporation or of a dissolved corporation who as such officer or employee is under a duty to act for such corporation in complying with any requirement of this act and any member of a partnership.

(x) “Customer” includes: every purchaser of tangible personal property, specified digital products or services; every patron paying or liable for the payment of any amusement charge; every occupant of a room or rooms in a hotel; every person paying charges in the nature of initiation fees, membership fees or dues for access to or use of the property or facilities of a health and fitness, athletic, sporting or shopping club or organization; and every purchaser of parking, storage or garaging a motor vehicle.

(y) “Property and services the use of which is subject to tax” includes: (1) all property sold to a person within the State, whether or not the sale is made within the State, the use of which property is subject to tax under section 6 or will become subject to tax when such property is received by or comes into the possession or control of such person within the State; (2) all services rendered to a person within the State, whether or not such services are performed within the State, upon tangible personal property or a specified digital product the use of which is subject to tax under section 6 or will become subject to tax when such property or product is distributed within the State or is received by or comes into possession or control of such person within the State; (3) intrastate, interstate, or international telecommunications sourced to this State pursuant to section 29 of P.L.2005, c.126 (C.54:32B-3.4); (4) (Deleted by amendment, P.L.1995, c.184); (5) energy sold, exchanged or delivered in this State for use in this State; (6) utility service sold, exchanged or delivered in this State for use in this State; (7) mail processing services in connection with printed advertising material distributed in this State; (8) (Deleted by amendment, P.L.2005, c.126); and (9) services the benefit of which are received in this State.

(z) “Director” means the Director of the Division of Taxation in the State Department of the Treasury, or any officer, employee or agency of the Division of Taxation in the Department of the Treasury duly authorized by the director (directly, or indirectly by one or more redelegations of authority) to perform the functions mentioned or described in this act.

(aa) “Lease or rental” 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.

(1) “Lease or rental” does not include:

(A) 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;

(B) A transfer of 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 $100 or one percent of the total required payments; or

(C) Providing tangible personal property or a specified digital product 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 or specified digital product.

(2) “Lease or rental” does include 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. s.7701(h)(1).

(3) The definition of “lease or rental” provided in this subsection shall be used for the purposes of this act regardless of whether a transaction is characterized as a lease or rental under generally accepted accounting principles, the federal Internal Revenue Code or other provisions of federal, state or local law.

(bb) (Deleted by amendment, P.L.2005, c.126).

(cc) “Telecommunications service” means the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points.

“Telecommunications service” shall include such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice over Internet protocol services or is classified by the Federal Communications Commission as enhanced or value added.

“Telecommunications service” shall not include:

(1) (Deleted by amendment, P.L.2008, c.123);

(2) (Deleted by amendment, P.L.2008, c.123);

(3) (Deleted by amendment, P.L.2008, c.123);

(4) (Deleted by amendment, P.L.2008, c.123);

(5) (Deleted by amendment, P.L.2008, c.123);

(6) (Deleted by amendment, P.L.2008, c.123);

(7) data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a purchaser where such purchaser’s primary purpose for the underlying transaction is the processed data or information;

(8) installation or maintenance of wiring or equipment on a customer’s premises;

(9) tangible personal property;

(10) advertising, including but not limited to directory advertising;

(11) billing and collection services provided to third parties;

(12) internet access service;

(13) radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance, and routing of such services by the programming service provider. Radio and television audio and video programming services shall include but not be limited to cable service as defined in section 47 U.S.C. s.522(6) and audio and video programming services delivered by commercial mobile radio service providers, as defined in section 47 C.F.R. 20.3;

(14) ancillary services; or

(15) digital products delivered electronically, including but not limited to software, music, video, reading materials, or ringtones.

For the purposes of this subsection:

“ancillary service” means a service that is associated with or incidental to the provision of telecommunications services, including but not limited to detailed telecommunications billing, directory assistance, vertical service, and voice mail service;

“conference bridging service” means an ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging service does not include the telecommunications services used to reach the conference bridge;

“detailed telecommunications billing service” means an ancillary service of separately stating information pertaining to individual calls on a customer’s billing statement;

“directory assistance” means an ancillary service of providing telephone number information or address information or both;

“vertical service” means an ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services; and

“voice mail service” means an ancillary service that enables the customer to store, send, or receive recorded messages. Voice mail service does not include any vertical service that a customer may be required to have to utilize the voice mail service.

(dd) (1) “Intrastate telecommunications” means a telecommunications service that originates in one United States state or a United States territory or possession or federal district, and terminates in the same United States state or United States territory or possession or federal district.

(2) “Interstate telecommunications” means a telecommunications service that originates in one United States state or a United States territory or possession or federal district, and terminates in a different United States state or United States territory or possession or federal district.

(3) “International telecommunications” means a telecommunications service that originates or terminates in the United States and terminates or originates outside the United States, respectively. “United States” includes the District of Columbia or a United States territory or possession.

(ee) (Deleted by amendment, P.L.2008, c.123)

(ff) “Natural gas” means any gaseous fuel distributed through a pipeline system.

(gg) “Energy” means natural gas or electricity.

(hh) “Utility service” means the transportation or transmission of natural gas or electricity by means of mains, wires, lines or pipes, to users or customers.

(ii) “Self-generation unit” means a facility located on the user’s property, or on property purchased or leased from the user by the person owning the self-generation unit and such property is contiguous to the user’s property, which generates electricity to be used only by that user on the user’s property and is not transported to the user over wires that cross a property line or public thoroughfare unless the property line or public thoroughfare merely bifurcates the user’s or self-generation unit owner’s otherwise contiguous property.

(jj) “Co-generation facility” means a facility the primary purpose of which is the sequential production of electricity and steam or other forms of useful energy which are used for industrial or commercial heating or cooling purposes and which is designated by the Federal Energy Regulatory Commission, or its successor, as a “qualifying facility” pursuant to the provisions of the “Public Utility Regulatory Policies Act of 1978,” Pub.L.95-617.

(kk) “Non-utility” means a company engaged in the sale, exchange or transfer of natural gas that was not subject to the provisions of P.L.1940, c.5 (C.54:30A-49 et seq.) prior to December 31, 1997.

(ll) “Pre-paid calling service” means the right to access exclusively telecommunications services, which shall be paid for in advance and which enables the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.

(mm) “Mobile telecommunications service” means the same as that term is defined in the federal “Mobile Telecommunications Sourcing Act,’’ 4 U.S.C. s.124 (Pub.L.106-252).

(nn) (Deleted by amendment, P.L.2008, c.123)

(oo) (1) “Sales price” is the measure subject to sales tax and means 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:

(A) The seller’s cost of the property sold;

(B) 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;

(D) Delivery charges;

(E) (Deleted by amendment, P.L.2011, c.49); and

(F) (Deleted by amendment, P.L.2008, c.123).

(2) “Sales price” does not include:

(A) 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;

(B) Interest, financing, and carrying charges from credit extended on the sale of personal property or services, if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser;

(C) 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;

(D) The amount of sales price for which food stamps have been properly tendered in full or part payment pursuant to the federal Food Stamp Act of 1977, Pub.L.95-113 (7 U.S.C. s.2011 et seq.); or

(E) Credit for any trade-in of property of the same kind accepted in part payment and intended for resale if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser.

(3) “Sales price” includes consideration received by the seller from third parties if:

(A) 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;

(B) The seller has an obligation to pass the price reduction or discount through to the purchaser;

(C) 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

(D) 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 to the seller as a member of a group or organization entitled to a price reduction or discount; provided however, that a preferred customer card that is available to any patron does not constitute membership in such a group; or

(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.

(4) In the case of a bundled transaction that includes a telecommunications service, an ancillary service, internet access, or an audio or video programming service, if the price is attributable to products that are taxable and products that are nontaxable, the portion of the price attributable to the nontaxable products is subject to tax unless the provider can identify by reasonable and verifiable standards such portion from its books and records that are kept in the regular course of business for other purposes, including non-tax purposes.

(pp) “Purchase price” means the measure subject to use tax and has the same meaning as “sales price.”

(qq) “Sales tax” means the tax imposed on certain transactions pursuant to the provisions of the “Sales and Use Tax Act,” P.L.1966, c.30 (C.54:32B-1 et seq.).

(rr) “Delivery charges” means charges by the seller 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. If a shipment includes both exempt and taxable property, the seller should allocate the delivery charge by using: (1) a percentage based on the total sales price of the taxable property compared to the total sales price of all property in the shipment; or (2) a percentage based on the total weight of the taxable property compared to the total weight of all property in the shipment. The seller shall tax the percentage of the delivery charge allocated to the taxable property but is not required to tax the percentage allocated to the exempt property.

(ss) “Direct mail” means printed material delivered or distributed by United States mail or other delivery service to a mass audience or to addresses on a mailing list provided by the purchaser or at the direction of the purchaser in cases in which 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 address.

(tt) “Streamlined Sales and Use Tax Agreement” means the agreement entered into as governed and authorized by the “Uniform Sales and Use Tax Administration Act,” P.L.2001, c.431 (C.54:32B-44 et seq.).

(uu) “Alcoholic beverages” means beverages that are suitable for human consumption and contain one-half of one percent or more of alcohol by volume.

(vv) (Deleted by amendment, P.L.2011, c.49)

(ww) “Landscaping services” means services that result in a capital improvement to land other than structures of any kind whatsoever, such as: seeding, sodding or grass plugging of new lawns; planting trees, shrubs, hedges, plants; and clearing and filling land.

(xx) “Investigation and security services” means:

(1) investigation and detective services, including detective agencies and private investigators, and fingerprint, polygraph, missing person tracing and skip tracing services;

(2) security guard and patrol services, including bodyguard and personal protection, guard dog, guard, patrol, and security services;

(3) armored car services; and

(4) security systems services, including security, burglar, and fire alarm installation, repair or monitoring services.

(yy) “Information services” means the furnishing of information of any kind, which has been collected, compiled, or analyzed by the seller, and provided through any means or method, other than personal or individual information which is not incorporated into reports furnished to other people.

(zz) “Specified digital product” means an electronically transferred digital audio-visual work, digital audio work, or digital book; provided however, that a digital code which provides a purchaser with a right to obtain the product shall be treated in the same manner as a specified digital product.

(aaa) “Digital audio-visual work” means a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

(bbb) “Digital audio work” means a work that results from the fixation of a series of musical, spoken, or other sounds, including a ringtone.

(ccc) “Digital book” means a work that is generally recognized in the ordinary and usual sense as a book.

(ddd) “Transferred electronically” means obtained by the purchaser by means other than tangible storage media.

(eee) “Ringtone” means a digitized sound file that is downloaded onto a device and that may be used to alert the purchaser with respect to a communication.

(fff) “Maintaining a place of business within this State” includes having, maintaining, occupying, or using, permanently or temporarily, in this State, directly or by a subsidiary or other related entity, an office, distribution facility, sales or sample facility, warehouse or storage place or other similar place of business. A person is “maintaining a place of business within this State” if the person has agents operating in this State under that person’s authority or under the authority of a subsidiary of that person, regardless of whether the place of business or the agent is in this State permanently or temporarily, or regardless of whether the person or the subsidiary is authorized to do business in this State.

(ggg) “Substantial ownership interest” means an interest in an entity that is not less than 10 percent of the equity ownership interest of that entity.

(hhh) “Ownership” means both direct ownership and indirect ownership through a parent, subsidiary, or affiliate.

(iii) “Controlled group of corporations” means “controlled group of corporations” as defined by subsection (a) of section 1563 of the federal Internal Revenue Code of 1986, 26 U.S.C. s.1563.

(jjj) “Component member” means “component member” as defined by subsection (b) of section 1563 of the federal Internal Revenue Code of 1986, 26 U.S.C. s.1563.

(kkk) “Affiliated person” means a person who has the relationship of a “related person” as defined by section 2 of P.L.1993, c.170 (C.54:10A-5.5) to a person who is engaged in the business of selling tangible personal property, specified digital products or services, the use of which is taxed by P.L.1966, c.30 (C.54:32B-1 et seq.).

(cf: P.L.2011, c.49, s.1)

2. This act shall take effect immediately; provided however, that section 1 shall remain inoperative until the first day of the first calendar quarter beginning at least 30 days after the date P.L. , c. (C. ) (pending before the Legislature as this bill) is enacted.

STATEMENT

This bill revises the sales and use tax to enumerate certain persons who are deemed to be sellers responsible for the collection of the sales and use tax, and to clarify the tax collection responsibilities of certain other persons and agents.

Under current law, the State imposes a sales tax on receipts from retail sales of tangible personal property, specified digital products, and certain enumerated services, and imposes a complimentary use tax on taxable goods and services purchased for use in New Jersey but for which the sales tax was not collected or a sales tax was collected at a rate that is less than the current State tax rate. The law defines a “seller” as a person making sales, leases, or rentals of personal property or services, and generally requires persons who fall within the parameters of the definition of a “seller” to make and file a certificate of registration with the Director of the Division of Taxation in the Department of the Treasury and to collect and remit any sales tax or any use tax determined to be due and payable to the State in connection with taxable sales of goods and services made to purchasers in this State.

The bill revises the current definition of a “seller” to specify that each of the following persons will be deemed to be a seller and will be required to register as a seller and collect and remit the tax determined to be due on behalf of the State:

-- Persons who hold a substantial ownership interest in, or are owned in whole or in substantial part by, a person maintaining a place of business within this State and who sell the same or a similar line of products as the related person in this State under the same or a similar business name;

-- Persons who hold a substantial ownership interest in, or are owned in whole or in substantial part by, a person maintaining a place of business within this State, and who use the in-State facilities or the in-State employees of a related person in this State to advertise, promote, or facilitate sales to customers;

--Persons who hold a substantial ownership interest in, or are owned in whole or substantial part by, a business that maintains an office, distribution facility, sales or sample facility, warehouse or storage place or other similar place of business in this State that delivers tangible personal property or specified digital products sold by the person to customers;

-- Persons who derive receipts from the lease or rental of tangible personal property situated within this State; and

-- Persons who are engaged in the business of selling tangible personal property, specified digital products, or services, the use of which is subject to tax in this State, and who use a trademark, service mark, or trade name that is the same as the trademark, service mark, or trade name used by an affiliated person in this State.

The bill provides that a person who is part of a controlled group of corporations, and that controlled group of corporations has a component member that is a seller engaged in business in this State, will be presumed to be a seller. The bill stipulates that this presumption may be rebutted by certain evidence.

The bill provides that a person who is engaged in the business of selling tangible personal property, directly or through a subsidiary or other related entity, to purchasers in this State by mail, telephone, the Internet or any other media, and who has a contractual relationship with an entity to provide and perform delivery, installation, assembly, or maintenance services for that person’s purchasers within the State will be deemed to be a seller.

The bill provides that the Director of the Division of Taxation in the Department of the Treasury may, when necessary, regard a salesperson, representative, independent contractor, solicitor, trucker, peddler or canvasser operating in this State as an agent of the dealer, distributor, supervisor, employer or person under whom the agent operates or from whom the agent obtains the tangible personal property sold by the agent, regardless of whether the agent is making sales on the agent’s behalf or on behalf of such dealer, distributor, supervisor, employer, or person, and that the director may so regard the agent and may regard the dealer, distributor, supervisor, employer, or person as a seller for purposes of the sales and use tax.

The bill takes effect immediately, but remains inoperative until the first day of the first calendar quarter beginning at least 30 days after the date the bill is enacted.