BILL REQ. #: H-5468.1
| State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 03/01/10. Referred to Committee on Finance.
AN ACT Relating to modifying Washington state excise tax laws; amending RCW 82.04.220, 82.04.2907, 82.04.460, 82.32.090, 82.12.020, 82.45.033, 82.45.070, 82.45.080, 82.45.100, 82.45.220, 43.07.390, 82.04.4292, 82.04.423, 82.04.4266, 82.04.250, 82.04.250, 82.04.298, 82.04.334, 82.04.4463, 82.08.806, 82.32.545, 82.32.550, 82.32.630, 82.32.632, 82.45.195, 35.102.150, 48.14.080, 82.08.890, 82.12.890, 82.48.010, 82.48.020, 82.48.030, 82.48.070, 82.48.080, 82.48.110, 82.16.050, 82.12.0254, 82.45.010, 82.45.080, 82.32.145, 82.08.0293, 82.12.0293, 82.04.060, 82.04.190, 82.04.215, 82.08.02088, 82.12.010, 82.12.020, 82.24.020, 82.24.026, 82.26.010, 82.26.020, 82.26.030, 82.21.030, 82.64.010, 82.64.020, 82.64.030, and 82.64.040; reenacting and amending RCW 82.45.010, 82.04.260, 82.04.261, 82.04.440, 82.04.360, 82.04.050, 82.04.050, and 82.04.050; adding new sections to chapter 82.04 RCW; adding new sections to chapter 82.32 RCW; adding a new section to chapter 82.48 RCW; adding a new section to chapter 82.16 RCW; adding new sections to chapter 82.26 RCW; adding a new section to chapter 82.08 RCW; adding a new section to chapter 82.12 RCW; adding new sections to chapter 90.48 RCW; adding a new section to chapter 46.68 RCW; adding a new section to chapter 90.71 RCW; creating new sections; repealing RCW 82.08.0273, 82.04.44525, 82.04.29001, 82.24.027, 82.24.028, 82.08.811, 82.12.811, and 82.04.062; providing effective dates; providing contingent effective dates; providing expiration dates; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 101 (1) The legislature finds that out-of-state businesses that do not have a physical presence in Washington
earn significant income from Washington residents from providing
services or collecting royalties on the use of intangible property in
this state. The legislature further finds that these businesses
receive significant benefits and opportunities provided by the state,
such as: Laws providing protection of business interests or regulating
consumer credit; access to courts and judicial process to enforce
business rights, including debt collection and intellectual property
rights; an orderly and regulated marketplace; and police and fire
protection and a transportation system benefiting in-state agents and
other representatives of out-of-state businesses. Therefore, the
legislature intends to extend the state's business and occupation tax
to these companies to ensure that they pay their fair share of the cost
of services that this state renders and the infrastructure it provides.
(2)(a) The legislature also finds that the current cost
apportionment method in RCW 82.04.460(1) for apportioning most service
income has been difficult for both taxpayers and the department to
apply due in large part (i) to the difficulty in assigning certain
costs of doing business inside or outside of this state, and (ii) to
its dissimilarity with the apportionment methods used in other states
for their business activity taxes.
(b) The legislature further finds that there is a trend among
states to adopt a single factor apportionment formula based on sales.
The legislature recognizes that adoption of a sales factor only
apportionment method has the advantages of simplifying apportionment
and making Washington a more attractive place for businesses to expand
their property and payroll. For these reasons, the legislature adopts
single factor sales apportionment for purposes of apportioning royalty
income and certain service income.
(c) Nothing in this act may be construed, however, to authorize
apportionment of the gross income or value of products taxable under
the following business and occupation tax classifications: Retailing,
wholesaling, manufacturing, processing for hire, extracting, extracting
for hire, printing, government contracting, public road construction,
the classifications in RCW 82.04.280 (2), (4), (6), and (7), and any
other activity not specifically included in the definition of
apportionable activities in RCW 82.04.460.
Sec. 102 RCW 82.04.220 and 1961 c 15 s 82.04.220 are each amended
to read as follows:
(1) There is levied and ((shall be)) collected from every person
that has substantial nexus with this state a tax for the act or
privilege of engaging in business activities. ((Such)) The tax ((shall
be)) is measured by the application of rates against value of products,
gross proceeds of sales, or gross income of the business, as the case
may be.
(2) A person who has substantial nexus with this state in any tax
year will be deemed to have substantial nexus with this state for the
following four tax years.
NEW SECTION. Sec. 103 A new section is added to chapter 82.04
RCW to read as follows:
"Engaging within this state" and "engaging within the state," when
used in connection with any apportionable activity as defined in RCW
82.04.460, means that a person generates gross income of the business
from sources within this state, such as customers or intangible
property located in this state, regardless of whether the person is
physically present in this state.
NEW SECTION. Sec. 104 A new section is added to chapter 82.04
RCW to read as follows:
(1) A person engaging in business is deemed to have substantial
nexus with this state if the person is:
(a) An individual and is a resident or domiciliary of this state;
(b) A business entity and is organized or commercially domiciled in
this state; or
(c) A nonresident individual or a business entity that is organized
or commercially domiciled outside this state, and in any tax year the
person has:
(i) More than fifty thousand dollars of property in this state;
(ii) More than fifty thousand dollars of payroll in this state;
(iii) More than five hundred thousand dollars of receipts from this
state; or
(iv) At least twenty-five percent of the person's total property,
total payroll, or total receipts in this state.
(2)(a) Property counting toward the thresholds in subsection
(1)(c)(i) and (iv) of this section is the average value of the
taxpayer's property, including intangible property, owned or rented and
used in this state during the tax year.
(b)(i) Property owned by the taxpayer, other than loans and credit
card receivables owned by the taxpayer, is valued at its original cost
basis. Loans and credit card receivables owned by the taxpayer are
valued at their outstanding principal balance, without regard to any
reserve for bad debts. However, if a loan or credit card receivable is
charged off in whole or in part for federal income tax purposes, the
portion of the loan or credit card receivable charged off is deducted
from the outstanding principal balance.
(ii) Property rented by the taxpayer is valued at eight times the
net annual rental rate. For purposes of this subsection, "net annual
rental rate" means the annual rental rate paid by the taxpayer less any
annual rental rate received by the taxpayer from subrentals.
(c) The average value of property must be determined by averaging
the values at the beginning and ending of the tax year; but the
department may require the averaging of monthly values during the tax
year if reasonably required to properly reflect the average value of
the taxpayer's property.
(d)(i) For purposes of this subsection (2), loans and credit card
receivables are deemed owned and used in this state as follows:
(A) Loans secured by real property, personal property, or both real
and personal property, are deemed owned and used in the state if the
real property or personal property securing the loan is located within
this state. If the property securing the loan is located both within
this state and one or more other states, the loan is deemed owned and
used in this state if more than fifty percent of the fair market value
of the real or personal property is located within this state. If more
than fifty percent of the fair market value of the real or personal
property is not located within any one state, then the loan is deemed
owned and used in this state if the borrower is located in this state.
The determination of whether the real or personal property securing a
loan is located within this state must be made, as of the time the
original agreement was made, and any and all subsequent substitutions
of collateral must be disregarded.
(B) Loans not secured by real or personal property are deemed owned
and used in this state if the borrower is located in this state.
(C) Credit card receivables are deemed owned and used in this state
if the billing address of the cardholder is in this state.
(ii) The definitions in section 106 of this act apply to this
subsection.
(e) Notwithstanding anything else to the contrary in this
subsection, property counting toward the thresholds in subsection
(1)(c)(i) and (iv) of this section does not include a person's
ownership of, or rights in, computer software as defined in RCW
82.04.215, including computer software used in providing a digital
automated service; master copies of software; and digital goods and
digital codes residing on servers located in this state.
(3)(a) Payroll counting toward the thresholds in subsection
(1)(c)(ii) and (iv) of this section is the total amount paid by the
taxpayer for compensation in this state during the tax year plus
nonemployee compensation paid to representative third parties in this
state. Nonemployee compensation paid to representative third parties
includes the gross amount paid to nonemployees who represent the
taxpayer in interactions with the taxpayer's clients and includes sales
commissions.
(b) Compensation is paid in this state if the compensation is
properly reportable to this state for unemployment compensation tax
purposes, regardless of whether the compensation was actually reported
to this state.
(c) Nonemployee compensation is paid in this state if the service
performed by the representative third party occurs entirely or
primarily within this state.
(d) For purposes of this subsection, "compensation" means wages,
salaries, commissions, and any other form of remuneration paid to
employees or nonemployees and defined as gross income under 26 U.S.C.
Sec. 61 of the federal internal revenue code of 1986, as existing on
July 1, 2010.
(4) Receipts counting toward the thresholds in subsection
(1)(c)(iii) and (iv) of this section are those amounts included in the
numerator of the receipts factor under sections 105 and 106 of this
act.
(5)(a) Each December, the department must review the cumulative
percentage change in the consumer price index. The department must
adjust the thresholds in subsection (1)(c)(i) through (iii) of this
section if the consumer price index has changed by five percent or more
since the later of July 1, 2010, or the date that the thresholds were
last adjusted under this subsection. For purposes of determining the
cumulative percentage change in the consumer price index, the
department must compare the consumer price index available as of
December 1st of the current year with the consumer price index as of
the later of July 1, 2010, or the date that the thresholds were last
adjusted under this subsection. The thresholds must be adjusted to
reflect that cumulative percentage change in the consumer price index.
The adjusted thresholds must be rounded to the nearest one thousand
dollars. Any adjustment will apply to tax periods that begin after the
adjustment is made.
(b) As used in this subsection, "consumer price index" means the
consumer price index for all urban consumers (CPI-U) available from the
bureau of labor statistics of the United States department of labor.
(6) Notwithstanding anything to the contrary in this section, a
person is not subject to taxes imposed under this chapter on any
activity not included in the definition of apportionable activities in
RCW 82.04.460, unless the person has a physical presence in this state,
which need only be demonstrably more than a slightest presence. For
purposes of this subsection, a person is physically present in this
state if the person has property or employees in this state or the
person, either directly or through an agent or other representative,
engages in activities in this state that are significantly associated
with the person's ability to establish or maintain a market for its
products in this state.
NEW SECTION. Sec. 105 A new section is added to chapter 82.04
RCW to read as follows:
(1) The apportionable income of a person within the scope of RCW
82.04.460(1) is apportioned to Washington by multiplying its
apportionable income by the receipts factor. Persons who are subject
to tax under more than one of the tax classifications enumerated in RCW
82.04.460(3)(a) (i) through (ix) must calculate a separate receipts
factor for each tax classification that the person is taxable under.
(2) For purposes of subsection (1) of this section, the receipts
factor is a fraction and is calculated as provided in subsections (3)
and (4) of this section and section 106 of this act.
(3)(a) The numerator of the receipts factor is the total gross
income of the business of the taxpayer attributable to this state
during the tax year from engaging in an apportionable activity. The
denominator of the receipts factor is the total gross income of the
business of the taxpayer from engaging in an apportionable activity
everywhere in the world during the tax year.
(b) Except as otherwise provided in this section, for purposes of
computing the receipts factor, gross income of the business generated
from each apportionable activity is attributable to the state:
(i) Where the customer received the benefit of the taxpayer's
service or, in the case of gross income from royalties, where the
customer used the taxpayer's intangible property.
(ii) If the customer received the benefit of the service or used
the intangible property in more than one state, gross income of the
business must be attributed to the state in which the benefit of the
service was primarily received or in which the intangible property was
primarily used.
(iii) If the taxpayer is unable to attribute gross income of the
business under the provisions of (b)(i) or (ii) of this subsection (3),
gross income of the business must be attributed to the state from which
the customer ordered the service or, in the case of royalties, the
office of the customer from which the royalty agreement with the
taxpayer was negotiated.
(iv) If the taxpayer is unable to attribute gross income of the
business under the provisions of (b)(i), (ii), or (iii) of this
subsection (3), gross income of the business must be attributed to the
state to which the billing statements or invoices are sent to the
customer by the taxpayer.
(v) If the taxpayer is unable to attribute gross income of the
business under the provisions of (b)(i), (ii), (iii), or (iv) of this
subsection (3), gross income of the business must be attributed to the
state from which the customer sends payment to the taxpayer.
(vi) If the taxpayer is unable to attribute gross income of the
business under the provisions of (b)(i), (ii), (iii), (iv), or (v) of
this subsection (3), gross income of the business must be attributed to
the state where the customer is located as indicated by the customer's
address: (A) Shown in the taxpayer's business records maintained in
the regular course of business; or (B) obtained during consummation of
the sale or the negotiation of the contract for services or for the use
of the taxpayer's intangible property, including any address of a
customer's payment instrument when readily available to the taxpayer
and no other address is available.
(vii) If the taxpayer is unable to attribute gross income of the
business under the provisions of (b)(i), (ii), (iii), (iv), (v), or
(vi) of this subsection (3), gross income of the business must be
attributed to the commercial domicile of the taxpayer.
(viii) For purposes of this subsection (3)(b), "customer" means a
person or entity to whom the taxpayer makes a sale or renders services
or from whom the taxpayer otherwise receives gross income of the
business. "Customer" includes anyone who pays royalties or charges in
the nature of royalties for the use of the taxpayer's intangible
property.
(c) Gross income of the business from engaging in an apportionable
activity must be excluded from the denominator of the receipts factor
if, in respect to such activity, at least some of the activity is
performed in this state, and the gross income is attributable under (b)
of this subsection (3) to a state in which the taxpayer is not taxable.
For purposes of this subsection (3)(c), "not taxable" means that the
taxpayer is not subject to a business activities tax by that state,
except that a taxpayer is taxable in a state in which it would be
deemed to have substantial nexus with that state under the standards in
section 104(1) of this act regardless of whether that state imposes
such a tax. "Business activities tax" means a tax measured by the
amount of, or economic results of, business activity conducted in a
state. The term includes taxes measured in whole or in part on net
income or gross income or receipts. "Business activities tax" does not
include a sales tax, use tax, or a similar transaction tax, imposed on
the sale or acquisition of goods or services, whether or not
denominated a gross receipts tax or a tax imposed on the privilege of
doing business.
(d) This subsection (3) does not apply to financial institutions
with respect to apportionable income taxable under RCW 82.04.290.
Financial institutions must calculate the receipts factor as provided
in section 106 of this act and subsection (4) of this section with
respect to apportionable income taxable under RCW 82.04.290. For
purposes of this subsection, "financial institution" has the same
meaning as in section 106 of this act.
(4) A taxpayer may calculate the receipts factor for the current
tax year based on the most recent calendar year for which information
is available for the full calendar year. If a taxpayer does not
calculate the receipts factor for the current tax year based on
previous calendar year information as authorized in this subsection,
the business must use current year information to calculate the
receipts factor for the current tax year. In either case, a taxpayer
must correct the reporting for the current tax year when complete
information is available to calculate the receipts factor for that
year, but not later than October 31st of the following tax year.
Interest will apply to any additional tax due on a corrected tax
return. Interest must be assessed at the rate provided for delinquent
excise taxes under chapter 82.32 RCW, retroactively to the date the
original return was due, and will accrue until the additional taxes are
paid. Penalties as provided in RCW 82.32.090 will apply to any such
additional tax due only if the current tax year reporting is not
corrected and the additional tax is not paid by October 31st of the
following tax year. Interest as provided in RCW 82.32.060 will apply
to any tax paid in excess of that properly due on a return as a result
of a taxpayer using previous calendar year data or incomplete current-year data to calculate the receipts factor.
(5) Unless the context clearly requires otherwise, the definitions
in this subsection apply throughout this section.
(a) "Apportionable activities" and "apportionable income" have the
same meaning as in RCW 82.04.460.
(b) "State" has the same meaning as in section 106 of this act.
NEW SECTION. Sec. 106 A new section is added to chapter 82.04
RCW to read as follows:
(1) A financial institution must, for purposes of apportioning
gross income of the business taxable under RCW 82.04.290 using the
apportionment method provided in section 105(1) of this act, calculate
the receipts factor as provided in this section and section 105(4) of
this act. Financial institutions that are subject to tax under any
other tax classification enumerated in RCW 82.04.460(3)(a) (i) through
(v) and (vii) through (ix) must calculate a separate receipts factor,
as provided in section 105 of this act, for each of the other tax
classifications that the financial institution is taxable under.
(2)(a)(i) The numerator of the receipts factor includes gross
income from interest, fees, and penalties on loans secured by real
property, personal property, or both real and personal property, if the
real or personal property is located within this state. If the
property securing the loan is located both within this state and one or
more other states, the income described in this subsection (2)(a)(i) is
included in the numerator of the receipts factor if more than fifty
percent of the fair market value of the real or personal property is
located within this state. If more than fifty percent of the fair
market value of the real or personal property is not located within any
one state, then the income described in this subsection (2)(a)(i) is
included in the numerator of the receipts factor if the borrower is
located in this state.
(ii) The denominator of the receipts factor includes gross income
from interest, fees, and penalties on loans secured by real property,
personal property, or both real and personal property, wherever the
property is located.
(iii) The determination of whether the real or personal property
securing a loan is located within this state must be made as of the
time the original agreement was made and any and all subsequent
substitutions of collateral must be disregarded.
(b) The numerator of the receipts factor includes gross income from
interest, fees, and penalties on loans not secured by real or personal
property if the borrower is located in this state. The denominator of
the receipts factor includes gross income from interest, fees, and
penalties on loans that are not secured by real or personal property,
regardless of where the borrower is located.
(c) The receipts factor includes gross income from net gains, which
may not be less than zero, on the sale of loans. Net gains on the sale
of loans includes income recorded under the coupon stripping rules of
26 U.S.C. Sec. 1286 of the federal internal revenue code of 1986, as
existing on July 1, 2010.
(i) The amount of net gains, which may not be less than zero, on
the sale of loans secured by real property, personal property, or both
real and personal property, included in the numerator of the receipts
factor is determined by multiplying such net gains by a fraction. The
numerator of the fraction is the amount included in the numerator of
the receipts factor under (a) of this subsection (2). The denominator
of the fraction is the amount included in the denominator of the
receipts factor under (a) of this subsection (2).
(ii) The amount of net gains, which may not be less than zero, from
the sale of loans not secured by real or personal property included in
the numerator of the receipts factor is determined by multiplying such
net gains by a fraction. The numerator of the fraction is the amount
included in the numerator of the receipts factor under (b) of this
subsection (2). The denominator of the fraction is the amount included
in the denominator of the receipts factor under (b) of this subsection
(2).
(iii) The denominator of the receipts factor includes gross income
from net gains, which may not be less than zero, on all sales of loans.
(d) Loan servicing fees are included in the receipts factor as
provided in (d)(i) and (ii) of this subsection (2).
(i)(A)(I) The numerator of the receipts factor includes gross
income from loan servicing fees derived from loans secured by real
property, personal property, or both real and personal property,
multiplied by a fraction. The numerator of the fraction is the amount
included in the numerator of the receipts factor under (a) of this
subsection (2). The denominator of the fraction is the amount included
in the denominator of the receipts factor under (a) of this subsection
(2).
(II) The denominator of the receipts factor includes gross income
from all loan servicing fees derived from loans secured by real
property, personal property, or both real and personal property.
(B)(I) The numerator of the receipts factor includes gross income
from loan servicing fees derived from loans not secured by real or
personal property multiplied by a fraction. The numerator of the
fraction is the amount included in the numerator of the receipts factor
under (b) of this subsection (2). The denominator of the fraction is
the amount included in the denominator of the receipts factor under (b)
of this subsection (2).
(II) The denominator of the receipts factor includes gross income
from all loan servicing fees derived from loans not secured by real or
personal property.
(ii) If the financial institution receives loan servicing fees for
servicing either the secured or the unsecured loans of another, the
numerator of the receipts factor includes such fees if the borrower is
located in this state. The denominator of the receipts factor includes
all such fees.
(e)(i) Interest, dividends, net gains (which may not be less than
zero), and other income from investment assets and activities and from
trading assets and activities, as provided in this subsection (2)(e),
are included in the receipts factor. Investment assets and activities
and trading assets and activities include but are not limited to:
Investment securities; trading account assets; federal funds;
securities purchased and sold under agreements to resell or repurchase;
options; futures contracts; forward contracts; notional principal
contracts such as swaps; equities; and foreign currency transactions.
(ii) The numerator of the receipts factor includes gross income
from interest, dividends, net gains (which may not be less than zero),
and other receipts from investment assets and activities and from
trading assets and activities described in (e)(i) of this subsection
(2) that are attributable to this state. The denominator of the
receipts factor includes all such gross income wherever earned.
(A) The amount of interest, dividends, net gains (which may not be
less than zero), and other income from investment assets and activities
in the investment account to be attributed to this state and included
in the numerator of the receipts factor is determined by multiplying
all such income from such assets and activities by a fraction. The
numerator of the fraction is the average value of such assets that are
properly assigned to a regular place of business of the financial
institution within this state. The denominator of the fraction is the
average value of all such assets.
(B)(I) The amount of interest from federal funds sold and purchased
and from securities purchased under resale agreements and securities
sold under repurchase agreements attributable to this state and
included in the numerator of the receipts factor is determined by
multiplying the amount described in (e)(ii)(B)(II) of this subsection
(2) from such funds and such securities by a fraction. The numerator
of the fraction is the average value of federal funds sold and
securities purchased under agreements to resell that are properly
assigned to a regular place of business of the financial institution
within this state. The denominator of the fraction is the average
value of all such funds and such securities.
(II) The amount used for purposes of making the calculation in
(e)(ii)(B)(I) of this subsection (2) is the amount by which interest
from federal funds sold and securities purchased under resale
agreements exceeds interest expense on federal funds purchased and
securities sold under repurchase agreements.
(C)(I) The amount of interest, dividends, gains and other income
from trading assets and activities, including but not limited to assets
and activities in the matched book, in the arbitrage book, and foreign
currency transactions, but excluding amounts described in (e)(ii)(A) or
(B) of this subsection (2), attributable to this state and included in
the numerator of the receipts factor is determined by multiplying the
amount described in (e)(ii)(C)(II) of this subsection (2) by a
fraction. The numerator of the fraction is the average value of such
trading assets that are properly assigned to a regular place of
business of the financial institution within this state. The
denominator of the fraction is the average value of all such assets.
(II) The amount used for purposes of making the calculation in
(e)(ii)(C)(I) of this subsection (2) is the amount by which interest,
dividends, gains and other receipts from trading assets and activities,
including but not limited to assets and activities in the matched book,
in the arbitrage book, and foreign currency transactions, exceed
amounts paid in lieu of interest, amounts paid in lieu of dividends,
and losses from such assets and activities.
(D) For purposes of this subsection (2)(e)(ii), average value must
be determined using the rules for determining the average value of
property set forth in section 104(2) of this act.
(iii) In lieu of using the method set forth in (e)(ii) of this
subsection (2), the financial institution may elect, or the department
may require, in order to fairly represent the business activity of the
financial institution in this state, the use of the method set forth in
this subsection (2)(e)(iii).
(A) The amount of interest, dividends, net gains (which may not be
less than zero), and other income from investment assets and activities
in the investment account to be attributed to this state and included
in the numerator of the receipts factor is determined by multiplying
all such income from such assets and activities by a fraction. The
numerator of the fraction is the gross income from such assets and
activities that are properly assigned to a regular place of business of
the financial institution within this state. The denominator of the
fraction is the gross income from all such assets and activities.
(B) The amount of interest from federal funds sold and purchased
and from securities purchased under resale agreements and securities
sold under repurchase agreements attributable to this state and
included in the numerator of the receipts factor is determined by
multiplying the amount described in (e)(ii)(B)(II) of this subsection
(2) from such funds and such securities by a fraction. The numerator
of the fraction is the gross income from such funds and such securities
that are properly assigned to a regular place of business of the
financial institution within this state. The denominator of the
fraction is the gross income from all such funds and such securities.
(C) The amount of interest, dividends, gains and other receipts
from trading assets and activities, including but not limited to assets
and activities in the matched book, in the arbitrage book, and foreign
currency transactions, but excluding amounts described in (e)(ii)(A) or
(B) of this subsection (2), attributable to this state and included in
the numerator of the receipts factor is determined by multiplying the
amount described in (e)(ii)(C)(II) of this subsection (2) by a
fraction. The numerator of the fraction is the gross income from such
trading assets and activities that are properly assigned to a regular
place of business of the financial institution within this state. The
denominator of the fraction is the gross income from all such assets
and activities.
(iv) If the financial institution elects or is required by the
department to use the method set forth in (e)(iii) of this subsection
(2), it must use this method for subsequent tax returns unless the
financial institution receives prior permission from the department to
use, or the department requires, a different method.
(v) The financial institution has the burden of proving that an
investment asset or activity or trading asset or activity was properly
assigned to a regular place of business outside of this state by
demonstrating that the day-to-day decisions regarding the asset or
activity occurred at a regular place of business outside this state.
If the day-to-day decisions regarding an investment asset or activity
or trading asset or activity occur at more than one regular place of
business and one such regular place of business is in this state and
one such regular place of business is outside this state, such asset or
activity is considered to be located at the regular place of business
of the financial institution where the investment or trading policies
or guidelines with respect to the asset or activity are established.
Such policies and guidelines are presumed, subject to rebuttal by
preponderance of the evidence, to be established at the commercial
domicile of the financial institution.
(f) The numerator of the receipts factor includes gross income from
interest, fees, and penalties on credit card receivables, and gross
income from fees charged to cardholders, such as annual fees, if the
billing address of the cardholder is in this state. The denominator of
the receipts factor includes gross income from interest, fees, and
penalties on all credit card receivables, and gross income from fees
charged to all cardholders, such as annual fees.
(g)(i) The numerator of the receipts factor includes gross income
from net gains, which may not be less than zero, from the sale of
credit card receivables multiplied by a fraction. The numerator of the
fraction is the amount included in the numerator of the receipts factor
under (f) of this subsection (2). The denominator of the fraction is
the amount included in the denominator of the receipts factor under (f)
of this subsection (2).
(ii) The denominator of the receipts factor includes gross income
from net gains, which may not be less than zero, from all sales of
credit card receivables.
(h)(i) The numerator of the receipts factor includes gross income
from all credit card issuer's reimbursement fees multiplied by a
fraction. The numerator of the fraction is the amount included in the
numerator of the receipts factor under (f) of this subsection (2). The
denominator of the fraction is the amount included in the denominator
of the receipts factor under (f) of this subsection (2).
(ii) The denominator of the receipts factor includes gross income
from all credit card issuer's reimbursement fees.
(i) The numerator of the receipts factor includes gross income from
merchant discounts if the commercial domicile of the merchant is in
this state. The denominator of the receipts factor includes gross
income from all merchant discounts. For purposes of this subsection
(2)(i), gross income must be computed net of any cardholder charge
backs but may not be reduced by any interchange transaction fees or by
any issuer's reimbursement fees paid to another for charges made by its
cardholders.
(j) Apportionable income that would be attributable under this
subsection (2) to a state in which the financial institution is not
taxable must be excluded from the denominator of the receipts factor if
at least some of the activity that generated the income is performed in
this state, and the gross income is attributable under this subsection
(2) to a state in which the taxpayer is not taxable. For purposes of
this subsection (2)(j), "not taxable" has the same meaning as in
section 105 of this act.
(k)(i) The numerator of the receipts factor includes apportionable
income taxable under RCW 82.04.290 and not otherwise included in the
receipts factor under this subsection (2) if the activity producing the
apportionable income is performed in this state. If the activity is
performed both inside and outside this state, the numerator of the
receipts factor includes apportionable income taxable under RCW
82.04.290 and not otherwise included in the receipts factor under this
subsection (2) if a greater proportion of the activity producing the
apportionable income is performed in this state based on cost of
performance.
(ii) The denominator of the receipts factor includes apportionable
income taxable under RCW 82.04.290 from activities performed
everywhere, where the apportionable income taxable under RCW 82.04.290
is not otherwise included in the receipts factor under this subsection
(2).
(3) Except as otherwise provided in subsection (4) of this section,
the definitions in the multistate tax commission's recommended formula
for the apportionment and allocation of net income of financial
institutions, adopted November 17, 1994, as existing on the effective
date of this section, apply to this section.
(4) Unless the context clearly requires otherwise, the definitions
in this subsection apply throughout this section.
(a) "Apportionable income" has the same meaning as in RCW
82.04.460.
(b) "Credit card" means a card or device existing for the purpose
of obtaining money, property, labor, or services on credit.
(c) "Financial institution" has the same meaning as in WAC 458-20-14601. However, the department may not make any substantive changes to
the definition of "financial institution" in WAC 458-20-14601 unless
the changes implement a legislative amendment to this definition of
financial institution.
(d) "State" means a state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any foreign country or political subdivision
of a foreign country.
Sec. 107 RCW 82.04.2907 and 2009 c 535 s 407 are each amended to
read as follows:
(1) Upon every person engaging within this state in the business of
receiving income from royalties ((or charges in the nature of royalties
for the granting of intangible rights, such as copyrights, licenses,
patents, or franchise fees)), the amount of tax with respect to
((such)) the business ((shall be)) is equal to the gross income from
royalties ((or charges in the nature of royalties from the business))
multiplied by the rate of 0.484 percent.
(2) For the purposes of this section, "gross income from royalties"
means compensation for the use of intangible property, ((such as))
including charges in the nature of royalties, regardless of where the
intangible property will be used. For purposes of this subsection,
"intangible property" includes copyrights, patents, licenses,
franchises, trademarks, trade names, and similar items. ((It)) "Gross
income from royalties" does not include compensation for any natural
resource, the licensing of prewritten computer software to the end
user, or the licensing ((or use)) of digital goods, digital codes, or
digital automated services to the end user as defined in RCW
82.04.190(11).
Sec. 108 RCW 82.04.460 and 2004 c 174 s 6 are each amended to
read as follows:
(1) Except as otherwise provided in this section, any person
((rendering services)) earning apportionable income taxable under ((RCW
82.04.290 or 82.04.2908)) this chapter and ((maintaining places of
business both within and without this state which contribute to the
rendition of such services shall)) also taxable in another state, must,
for the purpose of computing tax liability under ((RCW 82.04.290 or
82.04.2908)) this chapter, apportion to this state, in accordance with
section 105 of this act, that portion of the person's ((gross))
apportionable income ((which is)) derived from ((services rendered))
business activities performed within this state. ((Where such
apportionment cannot be accurately made by separate accounting methods,
the taxpayer shall apportion to this state that proportion of the
taxpayer's total income which the cost of doing business within the
state bears to the total cost of doing business both within and without
the state.))
(2) ((Notwithstanding the provision of subsection (1) of this
section, persons doing business both within and without the state who
receive gross income from service charges, as defined in RCW 63.14.010
(relating to amounts charged for granting the right or privilege to
make deferred or installment payments) or who receive gross income from
engaging in business as financial institutions within the scope of
chapter 82.14A RCW (relating to city taxes on financial institutions)
shall apportion or allocate gross income taxable under RCW 82.04.290 to
this state pursuant to rules promulgated by the department consistent
with uniform rules for apportionment or allocation developed by the
states.)) The department ((
(3)shall)) may by rule provide a method or
methods of apportioning or allocating gross income derived from sales
of telecommunications service and competitive telephone service((s))
taxed under this chapter, if the gross proceeds of sales subject to tax
under this chapter do not fairly represent the extent of the taxpayer's
income attributable to this state. ((The rules shall be, so far as
feasible, consistent with the methods of apportionment contained in
this section and shall require the consideration of those facts,
circumstances, and apportionment factors as will result in an equitable
and constitutionally permissible division of the services.)) The rule
must provide for an equitable and constitutionally permissible division
of the tax base.
(3) For purposes of this section, the following definitions apply
unless the context clearly requires otherwise:
(a) "Apportionable income" means gross income of the business
generated from engaging in apportionable activities, including income
received from apportionable activities performed outside this state if
the income would be taxable under this chapter if received from
activities in this state, less the exemptions and deductions allowable
under this chapter. For purposes of this subsection, "apportionable
activities" means only those activities taxed under:
(i) RCW 82.04.255;
(ii) RCW 82.04.260 (3), (5), (6), (7), (8), (9), (10), and (13);
(iii) RCW 82.04.280(5);
(iv) RCW 82.04.285;
(v) RCW 82.04.286;
(vi) RCW 82.04.290;
(vii) RCW 82.04.2907;
(viii) RCW 82.04.2908; and
(ix) RCW 82.04.260(14), 82.04.263, and 82.04.280(1), but only to
the extent of any activity that would be taxable under any of the
provisions enumerated under (a)(i) through (viii) of this subsection
(3) if the tax classifications in RCW 82.04.260(14), 82.04.263, and
82.04.280(1) did not exist.
(b)(i) "Taxable in another state" means that the taxpayer is
subject to a business activities tax by another state on its income
received from engaging in apportionable activities; or the taxpayer is
not subject to a business activities tax by another state on its income
received from engaging in apportionable activities, but any other state
has jurisdiction to subject the taxpayer to a business activities tax
on such income under the substantial nexus standards in section 104(1)
of this act.
(ii) For purposes of this subsection (3)(b):
(A) "Business activities tax" has the same meaning as in section
105 of this act; and
(B) "State" has the same meaning as in section 106 of this act.
NEW SECTION. Sec. 201 A new section is added to chapter 82.32
RCW to read as follows:
(1)(a) Unless otherwise specifically provided in statute, the
department must respect the form of a transaction, except where the
form of the transaction or a related series of transactions is adopted
for the purpose of:
(i) Disguising income received, or otherwise avoiding tax on
income, from a person that is not affiliated with the taxpayer;
(ii) Disguising the purchase or sale of property or services from
or to a person that is not affiliated with the taxpayer; or
(iii) Avoiding the tax imposed in RCW 82.12.020 on the use of
property in this state that is owned by an entity organized outside of
Washington.
(b) For purposes of this subsection, "affiliated" means under
common control. "Control" means the possession, directly or
indirectly, of more than fifty percent of the power to direct or cause
the direction of the management and policies of a person, whether
through the ownership of voting shares, by contract, or otherwise.
(2)(a) The department must, as resources allow, adopt rules to
assist in determining when to disregard the form of a transaction or a
related series of transactions adopted for the purposes described in
subsection (1)(a)(i) through (iii) of this section. In adopting rules,
the department may consider the following judicial doctrines, except to
the extent such doctrines are inconsistent with express provisions
contained in Washington state statutes:
(i) The sham transaction doctrine;
(ii) The economic substance doctrine;
(iii) The business purpose doctrine;
(iv) The substance over form doctrine;
(v) The step transaction doctrine; and
(vi) The assignment of income doctrine.
(b) The adoption of a rule as required under this subsection is not
a condition precedent for the department to use the authority provided
in this section. Any rules adopted under this section must include
examples of transactions that the department will disregard for tax
purposes.
(3) The provisions of this section are cumulative and nonexclusive
and do not affect any other remedies provided to the department under
statutory or common law.
NEW SECTION. Sec. 202 A new section is added to chapter 82.32
RCW to read as follows:
(1)(a) The department may not use section 201 of this act to
disregard any transaction, plan, or arrangement initiated before July
1, 2010, if, in respect to such transaction, plan, or arrangement, the
taxpayer had reported its tax liability in conformance with either
specific written instructions provided by the department to the
taxpayer, a determination published under the authority of RCW
82.32.410, or other document published by the department.
(b) This section does not apply if the transaction, plan, or
arrangement engaged in by the taxpayer differs materially from the
transaction, plan, or arrangement that was addressed in the specific
written instructions, published determination, or other published
document.
(2) For purposes of this section, "specific written instructions"
means tax reporting instructions provided to a taxpayer and which
specifically identifies the taxpayer to whom the instructions apply.
Specific written instructions may be provided as part of an audit, tax
assessment, determination, closing agreement, or in response to a
binding ruling request.
Sec. 203 RCW 82.32.090 and 2006 c 256 s 6 are each amended to
read as follows:
(1) If payment of any tax due on a return to be filed by a taxpayer
is not received by the department of revenue by the due date, there
((shall be)) is assessed a penalty of five percent of the amount of the
tax; and if the tax is not received on or before the last day of the
month following the due date, there ((shall be)) is assessed a total
penalty of fifteen percent of the amount of the tax under this
subsection; and if the tax is not received on or before the last day of
the second month following the due date, there ((shall be)) is assessed
a total penalty of twenty-five percent of the amount of the tax under
this subsection. No penalty so added shall be less than five dollars.
(2) If the department of revenue determines that any tax has been
substantially underpaid, there ((shall be)) is assessed a penalty of
five percent of the amount of the tax determined by the department to
be due. If payment of any tax determined by the department to be due
is not received by the department by the due date specified in the
notice, or any extension thereof, there ((shall be)) is assessed a
total penalty of fifteen percent of the amount of the tax under this
subsection; and if payment of any tax determined by the department to
be due is not received on or before the thirtieth day following the due
date specified in the notice of tax due, or any extension thereof,
there ((shall be)) is assessed a total penalty of twenty-five percent
of the amount of the tax under this subsection. No penalty so added
((shall)) may be less than five dollars. As used in this section,
"substantially underpaid" means that the taxpayer has paid less than
eighty percent of the amount of tax determined by the department to be
due for all of the types of taxes included in, and for the entire
period of time covered by, the department's examination, and the amount
of underpayment is at least one thousand dollars.
(3) If a warrant ((be)) is issued by the department ((of revenue))
for the collection of taxes, increases, and penalties, there ((shall
be)) is added thereto a penalty of ten percent of the amount of the
tax, but not less than ten dollars.
(4) If the department finds that a person has engaged in any
business or performed any act upon which a tax is imposed under this
title and that person has not obtained from the department a
registration certificate as required by RCW 82.32.030, the department
((shall)) must impose a penalty of five percent of the amount of tax
due from that person for the period that the person was not registered
as required by RCW 82.32.030. The department ((shall)) may not impose
the penalty under this subsection (4) if a person who has engaged in
business taxable under this title without first having registered as
required by RCW 82.32.030, prior to any notification by the department
of the need to register, obtains a registration certificate from the
department.
(5) If the department finds that all or any part of a deficiency
resulted from the disregard of specific written instructions as to
reporting or tax liabilities, the department ((shall)) must add a
penalty of ten percent of the amount of the additional tax found due
because of the failure to follow the instructions. A taxpayer
disregards specific written instructions when the department ((of
revenue)) has informed the taxpayer in writing of the taxpayer's tax
obligations and the taxpayer fails to act in accordance with those
instructions unless the department has not issued final instructions
because the matter is under appeal pursuant to this chapter or
departmental regulations. The department ((shall)) may not assess the
penalty under this section upon any taxpayer who has made a good faith
effort to comply with the specific written instructions provided by the
department to that taxpayer. Specific written instructions may be
given as a part of a tax assessment, audit, determination, or closing
agreement, provided that such specific written instructions ((shall))
apply only to the taxpayer addressed or referenced on such documents.
Any specific written instructions by the department ((of revenue
shall)) must be clearly identified as such and ((shall)) must inform
the taxpayer that failure to follow the instructions may subject the
taxpayer to the penalties imposed by this subsection.
(6) If the department finds that all or any part of a deficiency
resulted from engaging in a disregarded transaction, as described in
section 201(1)(a)(i), (ii), or (iii) of this act, the department must
assess a penalty of thirty-five percent of the additional tax found to
be due as a result of engaging in a transaction disregarded by the
department under section 201(1)(a)(i), (ii), or (iii) of this act. The
penalty provided in this subsection may be assessed together with any
other applicable penalties provided in this section on the same tax
found to be due, except for the evasion penalty provided in subsection
(7) of this section. The department may not assess the penalty under
this subsection if, before the department discovers the taxpayer's use
of a transaction described under section 201(1)(a)(i), (ii), or (iii)
of this act, the taxpayer discloses its participation in the
transaction to the department.
(7) If the department finds that all or any part of the deficiency
resulted from an intent to evade the tax payable ((hereunder)), a
further penalty of fifty percent of the additional tax found to be due
((shall)) must be added.
(((7))) (8) The penalties imposed under subsections (1) through (4)
of this section can each be imposed on the same tax found to be due.
This subsection does not prohibit or restrict the application of other
penalties authorized by law.
(((8))) (9) The department ((of revenue)) may not impose both the
evasion penalty and the penalty for disregarding specific written
instructions or the penalty provided in subsection (6) of this section
on the same tax found to be due.
(((9))) (10) For the purposes of this section, "return" means any
document a person is required by the state of Washington to file to
satisfy or establish a tax or fee obligation that is administered or
collected by the department ((of revenue)), and that has a statutorily
defined due date.
NEW SECTION. Sec. 204 (1) The legislature finds that this
state's tax policy with respect to the taxation of transactions between
affiliated entities and the income derived from such transactions
(intercompany transactions) has motivated some taxpayers to engage in
transactions designed solely or primarily to minimize the tax effects
of intercompany transactions. The legislature further finds that some
intercompany transactions result from taxpayers that are required to
establish affiliated entities to comply with regulatory mandates and
that transactions between such affiliates effectively increases the tax
burden in this state on the affiliated group of entities.
(2) Therefore, as existing resources allow, the department of
revenue is directed to conduct a review of the state's tax policy with
respect to the taxation of intercompany transactions. The review must
include the impacts of such transactions under the state's business and
occupation tax and state and local sales and use taxes. The department
may include other taxes in the review as it deems appropriate.
(3) In conducting the review, the department must examine how this
state's tax policy compares to the tax policy of other states with
respect to the taxation of intercompany transactions. The department's
review must include an analysis of potential alternatives to the
current policy of taxing intercompany transactions, including their
estimated revenue impacts if practicable.
(4) In conducting this review, the department may seek input from
members of the business community and others as it deems appropriate.
(5) The department must report its findings to the fiscal
committees of the house of representatives and senate by December 1,
2010. However, if the department has not completed its review by
December 1, 2010, the department must provide the fiscal committees of
the legislature with a brief status report by December 1, 2010, and the
final report by December 1, 2011.
Sec. 205 RCW 82.12.020 and 2009 c 535 s 305 are each amended to
read as follows:
(1) There is ((hereby)) levied and ((there shall be)) collected
from every person in this state a tax or excise for the privilege of
using within this state as a consumer any:
(a) Article of tangible personal property ((purchased at retail,
or)) acquired by ((lease, gift, repossession, or bailment, or extracted
or produced or manufactured by the person so using the same, or
otherwise furnished to a person engaged in any business taxable under
RCW 82.04.280 (2) or (7))) the user in any manner, including tangible
personal property acquired at a casual or isolated sale, and including
by-products used by the manufacturer thereof, except as otherwise
provided in this chapter, irrespective of whether the article or
similar articles are manufactured or are available for purchase within
this state;
(b) Prewritten computer software, regardless of the method of
delivery, but excluding prewritten computer software that is either
provided free of charge or is provided for temporary use in viewing
information, or both;
(c) Services defined as a retail sale in RCW 82.04.050 (2) (a) or
(g), (3)(a), or (6)(b), excluding services defined as a retail sale in
RCW 82.04.050(6)(b) that are provided free of charge;
(d) Extended warranty; or
(e)(i) Digital good, digital code, or digital automated service,
including the use of any services provided by a seller exclusively in
connection with digital goods, digital codes, or digital automated
services, whether or not a separate charge is made for such services.
(ii) With respect to the use of digital goods, digital automated
services, and digital codes acquired by purchase, the tax imposed in
this subsection (1)(e) applies in respect to:
(A) Sales in which the seller has granted the purchaser the right
of permanent use;
(B) Sales in which the seller has granted the purchaser a right of
use that is less than permanent;
(C) Sales in which the purchaser is not obligated to make continued
payment as a condition of the sale; and
(D) Sales in which the purchaser is obligated to make continued
payment as a condition of the sale.
(iii) With respect to digital goods, digital automated services,
and digital codes acquired other than by purchase, the tax imposed in
this subsection (1)(e) applies regardless of whether or not the
consumer has a right of permanent use or is obligated to make continued
payment as a condition of use.
(2) The provisions of this chapter do not apply in respect to the
use of any article of tangible personal property, extended warranty,
digital good, digital code, digital automated service, or service
taxable under RCW 82.04.050 (2) (a) or (g), (3)(a), or (6)(b), if the
sale to, or the use by, the present user or the present user's bailor
or donor has already been subjected to the tax under chapter 82.08 RCW
or this chapter and the tax has been paid by the present user or by the
present user's bailor or donor.
(3)(a) Except as provided in this section, payment of the tax
imposed by this chapter or chapter 82.08 RCW by one purchaser or user
of tangible personal property, extended warranty, digital good, digital
code, digital automated service, or other service does not have the
effect of exempting any other purchaser or user of the same property,
extended warranty, digital good, digital code, digital automated
service, or other service from the taxes imposed by such chapters.
(b) The tax imposed by this chapter does not apply:
(i) If the sale to, or the use by, the present user or his or her
bailor or donor has already been subjected to the tax under chapter
82.08 RCW or this chapter and the tax has been paid by the present user
or by his or her bailor or donor;
(ii) In respect to the use of any article of tangible personal
property acquired by bailment and the tax has once been paid based on
reasonable rental as determined by RCW 82.12.060 measured by the value
of the article at time of first use multiplied by the tax rate imposed
by chapter 82.08 RCW or this chapter as of the time of first use;
(iii) In respect to the use of any article of tangible personal
property acquired by bailment, if the property was acquired by a
previous bailee from the same bailor for use in the same general
activity and the original bailment was prior to June 9, 1961; or
(iv) To the use of digital goods or digital automated services,
which were obtained through the use of a digital code, if the sale of
the digital code to, or the use of the digital code by, the present
user or the present user's bailor or donor has already been subjected
to the tax under chapter 82.08 RCW or this chapter and the tax has been
paid by the present user or by the present user's bailor or donor.
(4)(a) Except as provided in (b) of this subsection (4), the tax is
levied and must be collected in an amount equal to the value of the
article used, value of the digital good or digital code used, value of
the extended warranty used, or value of the service used by the
taxpayer, multiplied by the applicable rates in effect for the retail
sales tax under RCW 82.08.020.
(b) In the case of a seller required to collect use tax from the
purchaser, the tax must be collected in an amount equal to the purchase
price multiplied by the applicable rate in effect for the retail sales
tax under RCW 82.08.020.
(5) For purposes of the tax imposed in this section, "person"
includes anyone within the definition of "buyer," "purchaser," and
"consumer" in RCW 82.08.010.
Sec. 206 RCW 82.45.010 and 2008 c 116 s 3 and 2008 c 6 s 701 are
each reenacted and amended to read as follows:
(1) As used in this chapter, the term "sale" ((shall have)) has its
ordinary meaning and ((shall)) includes any conveyance, grant,
assignment, quitclaim, or transfer of the ownership of or title to real
property, including standing timber, or any estate or interest therein
for a valuable consideration, and any contract for such conveyance,
grant, assignment, quitclaim, or transfer, and any lease with an option
to purchase real property, including standing timber, or any estate or
interest therein or other contract under which possession of the
property is given to the purchaser, or any other person at the
purchaser's direction, and title to the property is retained by the
vendor as security for the payment of the purchase price. The term
also includes the grant, assignment, quitclaim, sale, or transfer of
improvements constructed upon leased land.
(2)(a) The term "sale" also includes the transfer or acquisition
within any twelve-month period of a controlling interest in any entity
with an interest in real property located in this state for a valuable
consideration.
(b) For the sole purpose of determining whether, pursuant to the
exercise of an option, a controlling interest was transferred or
acquired within a twelve-month period, the date that the option
agreement was executed is the date on which the transfer or acquisition
of the controlling interest is deemed to occur. For all other purposes
under this chapter, the date upon which the option is exercised is the
date of the transfer or acquisition of the controlling interest.
(c) For purposes of this subsection, all acquisitions of persons
acting in concert ((shall)) must be aggregated for purposes of
determining whether a transfer or acquisition of a controlling interest
has taken place. The department ((of revenue shall)) must adopt
standards by rule to determine when persons are acting in concert. In
adopting a rule for this purpose, the department ((shall)) must
consider the following:
(((a))) (i) Persons ((shall)) must be treated as acting in concert
when they have a relationship with each other such that one person
influences or controls the actions of another through common ownership;
and
(((b))) (ii) When persons are not commonly owned or controlled,
they ((shall)) must be treated as acting in concert only when the unity
with which the purchasers have negotiated and will consummate the
transfer of ownership interests supports a finding that they are acting
as a single entity. If the acquisitions are completely independent,
with each purchaser buying without regard to the identity of the other
purchasers, then the acquisitions ((shall be)) are considered separate
acquisitions.
(3) The term "sale" ((shall)) does not include:
(a) A transfer by gift, devise, or inheritance.
(b) A transfer of any leasehold interest other than of the type
mentioned above.
(c) A cancellation or forfeiture of a vendee's interest in a
contract for the sale of real property, whether or not such contract
contains a forfeiture clause, or deed in lieu of foreclosure of a
mortgage.
(d) The partition of property by tenants in common by agreement or
as the result of a court decree.
(e) The assignment of property or interest in property from one
spouse or one domestic partner to the other spouse or other domestic
partner in accordance with the terms of a decree of dissolution of
marriage or state registered domestic partnership or in fulfillment of
a property settlement agreement.
(f) The assignment or other transfer of a vendor's interest in a
contract for the sale of real property, even though accompanied by a
conveyance of the vendor's interest in the real property involved.
(g) Transfers by appropriation or decree in condemnation
proceedings brought by the United States, the state or any political
subdivision thereof, or a municipal corporation.
(h) A mortgage or other transfer of an interest in real property
merely to secure a debt, or the assignment thereof.
(i) Any transfer or conveyance made pursuant to a deed of trust or
an order of sale by the court in any mortgage, deed of trust, or lien
foreclosure proceeding or upon execution of a judgment, or deed in lieu
of foreclosure to satisfy a mortgage or deed of trust.
(j) A conveyance to the federal housing administration or veterans
administration by an authorized mortgagee made pursuant to a contract
of insurance or guaranty with the federal housing administration or
veterans administration.
(k) A transfer in compliance with the terms of any lease or
contract upon which the tax as imposed by this chapter has been paid or
where the lease or contract was entered into prior to the date this tax
was first imposed.
(l) The sale of any grave or lot in an established cemetery.
(m) A sale by the United States, this state or any political
subdivision thereof, or a municipal corporation of this state.
(n) A sale to a regional transit authority or public corporation
under RCW 81.112.320 under a sale/leaseback agreement under RCW
81.112.300.
(o) A transfer of real property, however effected, if it consists
of a mere change in identity or form of ownership of an entity where
there is no change in the beneficial ownership. These include
transfers to a corporation or partnership which is wholly owned by the
transferor and/or the transferor's spouse or domestic partner or
children of the transferor or the transferor's spouse or domestic
partner((: PROVIDED, That)). However, if thereafter such transferee
corporation or partnership voluntarily transfers such real property, or
such transferor, spouse or domestic partner, or children of the
transferor or the transferor's spouse or domestic partner voluntarily
transfer stock in the transferee corporation or interest in the
transferee partnership capital, as the case may be, to other than
(((1))) (i) the transferor and/or the transferor's spouse or domestic
partner or children of the transferor or the transferor's spouse or
domestic partner, (((2))) (ii) a trust having the transferor and/or the
transferor's spouse or domestic partner or children of the transferor
or the transferor's spouse or domestic partner as the only
beneficiaries at the time of the transfer to the trust, or (((3)))
(iii) a corporation or partnership wholly owned by the original
transferor and/or the transferor's spouse or domestic partner or
children of the transferor or the transferor's spouse or domestic
partner, within three years of the original transfer to which this
exemption applies, and the tax on the subsequent transfer has not been
paid within sixty days of becoming due, excise taxes ((shall)) become
due and payable on the original transfer as otherwise provided by law.
(p)(i) A transfer that for federal income tax purposes does not
involve the recognition of gain or loss for entity formation,
liquidation or dissolution, and reorganization, including but not
limited to nonrecognition of gain or loss because of application of
((section)) 26 U.S.C. Sec. 332, 337, 351, 368(a)(1), 721, or 731 of the
internal revenue code of 1986, as amended.
(ii) However, the transfer described in (p)(i) of this subsection
cannot be preceded or followed within a twelve-month period by another
transfer or series of transfers, that, when combined with the otherwise
exempt transfer or transfers described in (p)(i) of this subsection,
results in the transfer of a controlling interest in the entity for
valuable consideration, and in which one or more persons previously
holding a controlling interest in the entity receive cash or property
in exchange for any interest the person or persons acting in concert
hold in the entity. This subsection (3)(p)(ii) does not apply to that
part of the transfer involving property received that is the real
property interest that the person or persons originally contributed to
the entity or when one or more persons who did not contribute real
property or belong to the entity at a time when real property was
purchased receive cash or personal property in exchange for that person
or persons' interest in the entity. The real estate excise tax under
this subsection (3)(p)(ii) is imposed upon the person or persons who
previously held a controlling interest in the entity.
(q) A qualified sale of a manufactured/mobile home community, as
defined in RCW 59.20.030, that takes place on or after June 12, 2008,
but before December 31, 2018.
Sec. 207 RCW 82.45.033 and 1993 sp.s. c 25 s 505 are each amended
to read as follows:
(1) As used in this chapter, the term "controlling interest" has
the following meaning:
(((1))) (a) In the case of a corporation, either fifty percent or
more of the total combined voting power of all classes of stock of the
corporation entitled to vote, or fifty percent of the capital, profits,
or beneficial interest in the voting stock of the corporation; and
(((2))) (b) In the case of a partnership, association, trust, or
other entity, fifty percent or more of the capital, profits, or
beneficial interest in such partnership, association, trust, or other
entity.
(2) The department may, at the department's option, enforce the
obligation of the seller under this chapter as provided in this
subsection (2):
(a) In the transfer or acquisition of a controlling interest as
defined in subsection (1)(a) of this section, either against the
corporation in which a controlling interest is transferred or acquired,
against the person or persons who acquired the controlling interest in
the corporation or, when the corporation is not a publicly traded
company, against the person or persons who transferred the controlling
interest in the corporation; and
(b) In the transfer or acquisition of a controlling interest as
defined in subsection (1)(b) of this section, either against the entity
in which a controlling interest is transferred or acquired or against
the person or persons who transferred or acquired the controlling
interest in the entity.
Sec. 208 RCW 82.45.070 and 1969 ex.s. c 223 s 28A.45.070 are each
amended to read as follows:
The tax ((herein)) provided for in this chapter and any interest or
penalties thereon ((shall be)) is a specific lien upon each ((piece))
parcel of real property located in this state that is either sold or
that is owned by an entity in which a controlling interest has been
transferred or acquired. The lien attaches from the time of sale until
the tax ((shall have been)) is paid, which lien may be enforced in the
manner prescribed for the foreclosure of mortgages.
Sec. 209 RCW 82.45.080 and 1980 c 154 s 3 are each amended to
read as follows:
(1) The tax levied under this chapter ((shall be)) is the
obligation of the seller and the department ((of revenue)) may, at the
department's option, enforce the obligation through an action of debt
against the seller or the department may proceed in the manner
prescribed for the foreclosure of mortgages ((and resort to)). The
department's use of one course of enforcement ((shall)) is not ((be))
an election not to pursue the other.
(2) For purposes of this section and notwithstanding any other
provisions of law, the seller is the parent corporation of a wholly
owned subsidiary, when such subsidiary is the transferor to a third-party transferee and the subsidiary is dissolved before paying the tax
imposed under this chapter.
Sec. 210 RCW 82.45.100 and 2007 c 111 s 112 are each amended to
read as follows:
(1) Payment of the tax imposed under this chapter is due and
payable immediately at the time of sale, and if not paid within one
month thereafter ((shall)) will bear interest from the time of sale
until the date of payment.
(a) Interest imposed before January 1, 1999, ((shall be)) is
computed at the rate of one percent per month.
(b) Interest imposed after December 31, 1998, ((shall be)) is
computed on a monthly basis at the rate as computed under RCW
82.32.050(2). The rate so computed ((shall)) must be adjusted on the
first day of January of each year for use in computing interest for
that calendar year. The department ((of revenue shall)) must provide
written notification to the county treasurers of the variable rate on
or before December 1st of the year preceding the calendar year in which
the rate applies.
(2) In addition to the interest described in subsection (1) of this
section, if the payment of any tax is not received by the county
treasurer or the department of revenue, as the case may be, within one
month of the date due, there ((shall be)) is assessed a penalty of five
percent of the amount of the tax; if the tax is not received within two
months of the date due, there ((shall)) will be assessed a total
penalty of ten percent of the amount of the tax; and if the tax is not
received within three months of the date due, there ((shall)) will be
assessed a total penalty of twenty percent of the amount of the tax.
The payment of the penalty described in this subsection ((shall be)) is
collectible from the seller only, and RCW 82.45.070 does not apply to
the penalties described in this subsection.
(3) If the tax imposed under this chapter is not received by the
due date, the transferee ((shall be)) is personally liable for the tax,
along with any interest as provided in subsection (1) of this section,
unless((:)) an instrument evidencing the sale is recorded in the official
real property records of the county in which the property conveyed is
located((
(a); or)).
(b) Either the transferor or transferee notifies the department of
revenue in writing of the occurrence of the sale within thirty days
following the date of the sale
(4) If upon examination of any affidavits or from other information
obtained by the department or its agents it appears that all or a
portion of the tax is unpaid, the department ((shall)) must assess
against the taxpayer the additional amount found to be due plus
interest and penalties as provided in subsections (1) and (2) of this
section. The department ((shall)) must notify the taxpayer by mail, or
electronically as provided in RCW 82.32.135, of the additional amount
and the same ((shall)) becomes due and ((shall)) must be paid within
thirty days from the date of the notice, or within such further time as
the department may provide.
(5) No assessment or refund may be made by the department more than
four years after the date of sale except upon a showing of:
(a) Fraud or misrepresentation of a material fact by the taxpayer;
(b) A failure by the taxpayer to record documentation of a sale or
otherwise report the sale to the county treasurer; or
(c) A failure of the transferor or transferee to report the sale
under RCW 82.45.090(2).
(6) Penalties collected on taxes due under this chapter under
subsection (2) of this section and RCW 82.32.090 (2) through (7)
((shall)) must be deposited in the housing trust fund as described in
chapter 43.185 RCW.
Sec. 211 RCW 82.45.220 and 2005 c 326 s 3 are each amended to
read as follows:
(1) An organization that fails to report a transfer of the
controlling interest in the organization under RCW 43.07.390 to the
secretary of state and is later determined to be subject to real estate
excise taxes due to the transfer, ((shall be)) is subject to the
provisions of RCW 82.45.100 as well as the evasion penalty in RCW
82.32.090(((6))) (7).
(2) Subsection (1) of this section also applies to the failure to
report to the secretary of state the granting of an option to acquire
an interest in the organization if the exercise of the option would
result in a sale as defined in RCW 82.45.010(2).
Sec. 212 RCW 43.07.390 and 2005 c 326 s 2 are each amended to
read as follows:
(1)(a) The secretary of state ((shall)) must adopt rules requiring
any entity that is required to file an annual report with the secretary
of state, including entities under Titles 23, 23B, 24, and 25 RCW, to
disclose: (i) Any transfer ((in)) of the controlling interest ((of))
in the entity ((and any interest in real property)); and (ii) the
granting of any option to acquire an interest in the entity if the
exercise of the option would result in a sale as defined in RCW
82.45.010(2).
(b) The disclosure requirement in this subsection only applies to
entities owning an interest in real property located in this state.
(2) This information ((shall)) must be made available to the
department of revenue upon request for the purposes of tracking the
transfer of the controlling interest in entities owning real property
and to determine when the real estate excise tax is applicable in such
cases.
(3) For the purposes of this section, "controlling interest" has
the same meaning as provided in RCW 82.45.033.
NEW SECTION. Sec. 301 In 1980, the legislature adopted a
business and occupation tax deduction to financial businesses for
amounts derived from interest received on investments or loans
primarily secured by first mortgages or trust deeds on nontransient
residential properties which was codified in RCW 82.04.4292. However,
the Washington state supreme court in Homestreet, Inc. v. Dep't of
Revenue, 166 Wn.2d 444 (2009) held that a mortgage lender was entitled
to a business and occupation tax deduction under RCW 82.04.4292 for the
portion of interest it retained for servicing loans and mortgage-backed
securities that it sold on a service-retained basis on the secondary
market. The legislature finds that inclusion of interest retained for
servicing loans and mortgage-backed securities was not within the
legislative intent when the deduction provided in 82.04.4292 was
adopted in 1980. Therefore, by this act, the legislature declares that
the deduction provided by RCW 82.04.4292 does not apply to fees that
are received in exchange for services, regardless of whether the source
of the fees is or may have been interest when paid by a borrower.
Sec. 302 RCW 82.04.4292 and 1980 c 37 s 12 are each amended to
read as follows:
(1) In computing tax there may be deducted from the measure of tax
by those engaged in banking, loan, security or other financial
businesses, amounts derived from interest received on investments or
loans primarily secured by first mortgages or trust deeds on
nontransient residential properties.
(2) Interest deductible under this section includes the portion of
fees charged to borrowers, including points and loan origination fees,
that is recognized over the life of the loan as an adjustment to yield
in the taxpayer's books and records according to generally accepted
accounting principles.
(3) Subsections (1) and (2) of this section notwithstanding, the
following is a nonexclusive list of items that are not deductible under
this section:
(a) Fees for specific services such as: Document preparation fees;
finder fees; brokerage fees; title examination fees; fees for credit
checks; notary fees; loan application fees; interest lock-in fees if
the loan is not made; servicing fees, including servicing fees received
by lenders when they sell loans or mortgage-backed or mortgage-related
securities in the secondary market while retaining the right to service
the loans or securities and receive a portion of the interest payments
as the servicing fee; and similar fees or amounts;
(b) Fees received in consideration for an agreement to make funds
available for a specific period of time at specified terms, commonly
referred to as commitment fees;
(c) Any other fees, or portion of a fee, that is not recognized
over the life of the loan as an adjustment to yield in the taxpayer's
books and records according to generally accepted accounting
principles; and
(d) Gains on the sale of valuable rights such as:
(i) Service release premiums, which are amounts received when
servicing rights are sold; and
(ii) Gains on the sale of loans.
(4) The total amount a person may deduct under this section for any
calendar year may not exceed thirty-five million dollars.
NEW SECTION. Sec. 401 RCW 82.08.0273 (Exemptions -- Sales to
nonresidents of tangible personal property, digital goods, and digital
codes for use outside the state -- Proof of nonresident status--Penalties) and 2009 c 535 s 512, 2007 c 135 s 2, 2003 c 53 s 399, 1993
c 444 s 1, 1988 c 96 s 1, 1982 1st ex.s. c 5 s 1, & 1980 c 37 s 39 are
each repealed.
NEW SECTION. Sec. 501 (1) A business and occupation tax
exemption is provided in RCW 82.04.423 for certain out-of-state sellers
that sell consumer products exclusively to or through a direct seller's
representative. The intent of the legislature in enacting this
exemption was to provide a narrow exemption for out-of-state businesses
engaged in direct sales of consumer products, typically accomplished
through in-home parties or door-to-door selling.
(2) In Dot Foods, Inc. v. Dep't of Revenue, Docket No. 81022-2
(September 10, 2009), the Washington supreme court held that the
exemption in RCW 82.04.423 applied to a taxpayer: (a) That sold
nonconsumer products through its representative in addition to consumer
products; and (b) whose consumer products were ultimately sold at
retail in permanent retail establishments.
(3) The legislature finds that most out-of-state businesses selling
consumer products in this state will either be eligible for the
exemption under RCW 82.04.423 or could easily restructure their
business operations to qualify for the exemption. As a result, the
legislature expects that the broadened interpretation of the direct
sellers' exemption will lead to large and devastating revenue losses.
This comes at a time when the state's existing budget is facing a two
billion six hundred million dollar shortfall, which could grow, while
at the same time the demand for state and state-funded services is also
growing. Moreover, the legislature further finds that RCW 82.04.423
provides preferential tax treatment for out-of-state businesses over
their in-state competitors and now creates a strong incentive for in-state businesses to move their operations outside Washington.
(4) Therefore, the legislature finds that it is necessary to
reaffirm the legislature's intent in establishing the direct sellers'
exemption and prevent the loss of revenues resulting from the expanded
interpretation of the exemption by amending RCW 82.04.423 retroactively
to conform the exemption to the original intent of the legislature and
by prospectively ending the direct sellers' exemption effective July 1,
2010. The legislature recognizes that the department of revenue has
asked the Washington supreme court to reconsider its decision in Dot
Foods. As a result, if the Dot Foods decision is not final on the
effective date of section 502 of this act, it is the legislature's
intent that the amendments in section 502 of this act be considered
clarifying in nature.
Sec. 502 RCW 82.04.423 and 1983 1st ex.s. c 66 s 5 are each
amended to read as follows:
(1) Prior to April 1, 2010, this chapter ((shall)) does not apply
to any person in respect to gross income derived from the business of
making sales at wholesale or retail if such person:
(a) Does not own or lease real property within this state; and
(b) Does not regularly maintain a stock of tangible personal
property in this state for sale in the ordinary course of business; and
(c) Is not a corporation incorporated under the laws of this state;
and
(d) Makes sales in this state exclusively to or through a direct
seller's representative.
(2) For purposes of this section, the term "direct seller's
representative" means a person who buys only consumer products on a
buy-sell basis or a deposit-commission basis for resale, by the buyer
or any other person, in the home or otherwise than in a permanent
retail establishment, or who sells at retail, or solicits the sale at
retail of, only consumer products in the home or otherwise than in a
permanent retail establishment; and
(a) Substantially all of the remuneration paid to such person,
whether or not paid in cash, for the performance of services described
in this subsection is directly related to sales or other output,
including the performance of services, rather than the number of hours
worked; and
(b) The services performed by the person are performed pursuant to
a written contract between such person and the person for whom the
services are performed and such contract provides that the person will
not be treated as an employee with respect to such purposes for federal
tax purposes.
(3) Nothing in this section ((shall)) may be construed to imply
that a person exempt from tax under this section was engaged in a
business activity taxable under this chapter prior to ((the enactment
of this section)) August 23, 1983.
NEW SECTION. Sec. 601 (1)(a) In 1967, the legislature amended
RCW 82.04.260 in chapter 149, Laws of 1967 ex. sess. to authorize a
preferential business and occupation tax rate for slaughtering,
breaking, and/or processing perishable meat products and/or selling the
same at wholesale. The legislature finds that RCW 82.04.260(4) was
interpreted by the state supreme court on January 13, 2005, in Agrilink
Foods, Inc. v. Department of Revenue, 153 Wn.2d 392 (2005). The
supreme court held that the preferential business and occupation tax
rate on the slaughtering, breaking, and/or processing of perishable
meat products applied to the processing of perishable meat products
into nonperishable finished products, such as canned food.
(b) The legislature intends to narrow the exemption provided for
slaughtering, breaking, and/or processing perishable meat products
and/or selling such products at wholesale by requiring that the end
product be a perishable meat product; a nonperishable meat product that
is comprised primarily of animal carcass by weight or volume, other
than a canned meat product; or a meat by-product.
(2)(a) A business and occupation tax exemption is provided for (i)
manufacturing by canning, preserving, freezing, processing, or
dehydrating fresh fruits or vegetables, and (ii) selling such products
at wholesale by the manufacturer to purchasers who transport the goods
out of state in the ordinary course of business. This exemption
expires July 1, 2012, and is replaced by a preferential business and
occupation tax rate.
(b) The legislature finds that the rationale of the Agrilink
decision, if applied to these tax preferences, could result in
preferential tax treatment for any processed food product that
contained any fresh fruit or vegetable as an ingredient, however small
the amount.
(c) The legislature intends to narrow the tax preference provided
to fruit and vegetable manufacturers by requiring that the end product
be comprised either (i) exclusively of fruits and/or vegetables, or
(ii) of any combination of fruits, vegetables, and certain other
substances that, cumulatively, may not exceed the amount of fruits and
vegetables contained in the product measured by weight or volume.
NEW SECTION. Sec. 602 A new section is added to chapter 82.04
RCW to read as follows:
(1) Upon every person engaging within this state in the business of
manufacturing:
(a) Perishable meat products, by slaughtering, breaking, or
processing, if the finished product is a perishable meat product; as to
such persons the tax imposed is equal to the value of the perishable
meat products manufactured, or, in the case of a processor for hire,
the gross income of the business, multiplied by the rate of 0.138
percent;
(b) Meat products, by dehydration, curing, smoking, or any
combination of these activities, if the finished meat products are not
canned; as to such persons the tax imposed is equal to the value of the
meat products manufactured, or, in the case of a processor for hire,
the gross income of the business, multiplied by the rate of 0.138
percent;
(c) Hides, tallow, meat meal, and other similar meat by-products,
if such products are derived in part from animals and manufactured in
a rendering plant licensed under chapter 16.68 RCW; as to such persons
the tax imposed is equal to the value of the products manufactured, or,
in the case of a processor for hire, the gross income of the business,
multiplied by the rate of 0.138 percent.
(2) Upon every person engaging within this state in the business of
selling at wholesale:
(a) Perishable meat products; as to such persons the tax imposed is
equal to the gross proceeds derived from such sales multiplied by the
rate of 0.138 percent;
(b) Meat products that have been manufactured by the seller by
dehydration, curing, smoking, or any combination of such activities, if
the finished meat products are not canned; as to such persons the tax
imposed is equal to the gross proceeds derived from such sales
multiplied by the rate of 0.138 percent;
(c) Hides, tallow, meat meal, and other similar meat by-products,
if such products are derived in part from animals and manufactured by
the seller in a rendering plant; as to such persons the tax imposed is
equal to the gross proceeds derived from such sales multiplied by the
rate of 0.138 percent.
(3) The definitions in this subsection apply throughout this
section unless the context clearly requires otherwise.
(a) "Animal" means all members of the animal kingdom except humans,
fish, and insects.
(b) "Carcass" means all or any parts, including viscera, of a
slaughtered animal.
(c) "Fish" means any water-breathing animal, including shellfish.
(d) "Hide" means any unprocessed animal pelt or skin.
(e)(i) "Meat products" means:
(A) Products comprised exclusively of animal carcass; and
(B) Except as provided in (e)(ii) of this subsection (3), products,
such as jerky, sausage, and other cured meat products, that are
comprised primarily of animal carcass by weight or volume and may also
contain water; nitrates; nitrites; acids; binders and extenders;
natural or synthetic casings; colorings; flavorings such as soy sauce,
liquid smoke, seasonings, citric acid, sugar, molasses, corn syrup, and
vinegar; and similar substances.
(ii) "Meat products" does not include products containing any
cereal grains or cereal-grain products, dairy products, legumes and
legume products, fruit or vegetable products as defined in RCW
82.04.260, and similar ingredients, unless the ingredient is used as a
flavoring. For purposes of this subsection, "flavoring" means a
substance that contains the flavoring constituents derived from a
spice, fruit or fruit juice, vegetable or vegetable juice, edible
yeast, herb, bark, bud, root, leaf, or any other edible substance of
plant origin, whose primary function in food is flavoring or seasoning
rather than nutritional, and which may legally appear as "natural
flavor," "flavor," or "flavorings" in the ingredient statement on the
label of the meat product.
(iii) "Meat products" includes only products that are intended for
human consumption as food or animal consumption as feed.
(f) "Perishable" means having a high risk of spoilage within thirty
days of manufacture without any refrigeration or freezing.
(g) "Rendering plant" means any place of business or location where
dead animals or any part or portion thereof, or packing house refuse,
are processed for the purpose of obtaining the hide, skin, grease
residue, or any other by-product whatsoever.
Sec. 603 RCW 82.04.4266 and 2006 c 354 s 3 are each amended to
read as follows:
(1) This chapter ((shall)) does not apply to the value of products
or the gross proceeds of sales derived from:
(a) Manufacturing fruit((s)) or vegetable((s)) products by canning,
preserving, freezing, processing, or dehydrating fresh fruits or
vegetables; or
(b) Selling at wholesale fruit((s)) or vegetable((s)) products
manufactured by the seller by canning, preserving, freezing,
processing, or dehydrating fresh fruits or vegetables and sold to
purchasers who transport in the ordinary course of business the goods
out of this state. A person taking an exemption under this subsection
(1)(b) must keep and preserve records for the period required by RCW
82.32.070 establishing that the goods were transported by the purchaser
in the ordinary course of business out of this state.
(2)(a) "Fruit or vegetable products" means:
(i) Products comprised exclusively of fruits, vegetables, or both;
and
(ii) Products comprised of fruits, vegetables, or both, and which
may also contain water, sugar, salt, seasonings, preservatives,
binders, stabilizers, flavorings, yeast, and similar substances.
However, the amount of all ingredients contained in the product, other
than fruits, vegetables, and water, may not exceed the amount of fruits
and vegetables contained in the product measured by weight or volume.
(b) "Fruit or vegetable products" includes only products that are
intended for human consumption as food or animal consumption as feed.
(3) This section expires July 1, 2012.
Sec. 604 RCW 82.04.260 and 2009 c 479 s 64, 2009 c 461 s 1, and
2009 c 162 s 34 are each reenacted and amended to read as follows:
(1) Upon every person engaging within this state in the business of
manufacturing:
(a) Wheat into flour, barley into pearl barley, soybeans into
soybean oil, canola into canola oil, canola meal, or canola by-products, or sunflower seeds into sunflower oil; as to such persons the
amount of tax with respect to such business ((shall be)) is equal to
the value of the flour, pearl barley, oil, canola meal, or canola by-product manufactured, multiplied by the rate of 0.138 percent;
(b) Beginning July 1, 2012, seafood products that remain in a raw,
raw frozen, or raw salted state at the completion of the manufacturing
by that person; or selling manufactured seafood products that remain in
a raw, raw frozen, or raw salted state at the completion of the
manufacturing, to purchasers who transport in the ordinary course of
business the goods out of this state; as to such persons the amount of
tax with respect to such business ((shall be)) is equal to the value of
the products manufactured or the gross proceeds derived from such
sales, multiplied by the rate of 0.138 percent. Sellers must keep and
preserve records for the period required by RCW 82.32.070 establishing
that the goods were transported by the purchaser in the ordinary course
of business out of this state;
(c) Beginning July 1, 2012, dairy products that as of September 20,
2001, are identified in 21 C.F.R., chapter 1, parts 131, 133, and 135,
including by-products from the manufacturing of the dairy products such
as whey and casein; or selling the same to purchasers who transport in
the ordinary course of business the goods out of state; as to such
persons the tax imposed ((shall be)) is equal to the value of the
products manufactured or the gross proceeds derived from such sales
multiplied by the rate of 0.138 percent. Sellers must keep and
preserve records for the period required by RCW 82.32.070 establishing
that the goods were transported by the purchaser in the ordinary course
of business out of this state;
(d)(i) Beginning July 1, 2012, fruit((s)) or vegetable((s))
products by canning, preserving, freezing, processing, or dehydrating
fresh fruits or vegetables, or selling at wholesale fruit((s)) or
vegetable((s)) products manufactured by the seller by canning,
preserving, freezing, processing, or dehydrating fresh fruits or
vegetables and sold to purchasers who transport in the ordinary course
of business the goods out of this state; as to such persons the amount
of tax with respect to such business ((shall be)) is equal to the value
of the products manufactured or the gross proceeds derived from such
sales multiplied by the rate of 0.138 percent. Sellers must keep and
preserve records for the period required by RCW 82.32.070 establishing
that the goods were transported by the purchaser in the ordinary course
of business out of this state;
(ii) For purposes of this subsection, "fruit or vegetable products"
means:
(A) Products comprised exclusively of fruits, vegetables, or both;
or
(B) Products comprised of fruits, vegetables, or both, and which
may also contain water, sugar, salt, seasonings, preservatives,
binders, stabilizers, flavorings, yeast, and similar substances.
However, the amount of all ingredients contained in the product, other
than fruits, vegetables, and water, may not exceed the amount of fruits
and vegetables contained in the product measured by weight or volume;
(iii) "Fruit and vegetable products" includes only products that
are intended for human consumption as food or animal consumption as
feed;
(e) Until July 1, 2009, alcohol fuel, biodiesel fuel, or biodiesel
feedstock, as those terms are defined in RCW 82.29A.135; as to such
persons the amount of tax with respect to the business ((shall be)) is
equal to the value of alcohol fuel, biodiesel fuel, or biodiesel
feedstock manufactured, multiplied by the rate of 0.138 percent; and
(f) Alcohol fuel or wood biomass fuel, as those terms are defined
in RCW 82.29A.135; as to such persons the amount of tax with respect to
the business ((shall be)) is equal to the value of alcohol fuel or wood
biomass fuel manufactured, multiplied by the rate of 0.138 percent.
(2) Upon every person engaging within this state in the business of
splitting or processing dried peas; as to such persons the amount of
tax with respect to such business ((shall be)) is equal to the value of
the peas split or processed, multiplied by the rate of 0.138 percent.
(3) Upon every nonprofit corporation and nonprofit association
engaging within this state in research and development, as to such
corporations and associations, the amount of tax with respect to such
activities ((shall be)) is equal to the gross income derived from such
activities multiplied by the rate of 0.484 percent.
(4) ((Upon every person engaging within this state in the business
of slaughtering, breaking and/or processing perishable meat products
and/or selling the same at wholesale only and not at retail; as to such
persons the tax imposed shall be equal to the gross proceeds derived
from such sales multiplied by the rate of 0.138 percent.)) Upon every person engaging within this state in the business
of acting as a travel agent or tour operator; as to such persons the
amount of the tax with respect to such activities ((
(5)shall be)) is equal
to the gross income derived from such activities multiplied by the rate
of 0.275 percent.
(((6))) (5) Upon every person engaging within this state in
business as an international steamship agent, international customs
house broker, international freight forwarder, vessel and/or cargo
charter broker in foreign commerce, and/or international air cargo
agent; as to such persons the amount of the tax with respect to only
international activities ((shall be)) is equal to the gross income
derived from such activities multiplied by the rate of 0.275 percent.
(((7))) (6) Upon every person engaging within this state in the
business of stevedoring and associated activities pertinent to the
movement of goods and commodities in waterborne interstate or foreign
commerce; as to such persons the amount of tax with respect to such
business ((shall be)) is equal to the gross proceeds derived from such
activities multiplied by the rate of 0.275 percent. Persons subject to
taxation under this subsection ((shall be)) are exempt from payment of
taxes imposed by chapter 82.16 RCW for that portion of their business
subject to taxation under this subsection. Stevedoring and associated
activities pertinent to the conduct of goods and commodities in
waterborne interstate or foreign commerce are defined as all activities
of a labor, service or transportation nature whereby cargo may be
loaded or unloaded to or from vessels or barges, passing over, onto or
under a wharf, pier, or similar structure; cargo may be moved to a
warehouse or similar holding or storage yard or area to await further
movement in import or export or may move to a consolidation freight
station and be stuffed, unstuffed, containerized, separated or
otherwise segregated or aggregated for delivery or loaded on any mode
of transportation for delivery to its consignee. Specific activities
included in this definition are: Wharfage, handling, loading,
unloading, moving of cargo to a convenient place of delivery to the
consignee or a convenient place for further movement to export mode;
documentation services in connection with the receipt, delivery,
checking, care, custody and control of cargo required in the transfer
of cargo; imported automobile handling prior to delivery to consignee;
terminal stevedoring and incidental vessel services, including but not
limited to plugging and unplugging refrigerator service to containers,
trailers, and other refrigerated cargo receptacles, and securing ship
hatch covers.
(((8))) (7)(a) Upon every person engaging within this state in the
business of disposing of low-level waste, as defined in RCW 43.145.010;
as to such persons the amount of the tax with respect to such business
((shall be)) is equal to the gross income of the business, excluding
any fees imposed under chapter 43.200 RCW, multiplied by the rate of
3.3 percent.
(b) If the gross income of the taxpayer is attributable to
activities both within and without this state, the gross income
attributable to this state ((shall)) must be determined in accordance
with the methods of apportionment required under RCW 82.04.460.
(((9))) (8) Upon every person engaging within this state as an
insurance producer or title insurance agent licensed under chapter
48.17 RCW or a surplus line broker licensed under chapter 48.15 RCW; as
to such persons, the amount of the tax with respect to such licensed
activities ((shall be)) is equal to the gross income of such business
multiplied by the rate of 0.484 percent.
(((10))) (9) Upon every person engaging within this state in
business as a hospital, as defined in chapter 70.41 RCW, that is
operated as a nonprofit corporation or by the state or any of its
political subdivisions, as to such persons, the amount of tax with
respect to such activities ((shall be)) is equal to the gross income of
the business multiplied by the rate of 0.75 percent through June 30,
1995, and 1.5 percent thereafter.
(((11))) (10)(a) Beginning October 1, 2005, upon every person
engaging within this state in the business of manufacturing commercial
airplanes, or components of such airplanes, or making sales, at retail
or wholesale, of commercial airplanes or components of such airplanes,
manufactured by the seller, as to such persons the amount of tax with
respect to such business ((shall)), in the case of manufacturers,
((be)) is equal to the value of the product manufactured and the gross
proceeds of sales of the product manufactured, or in the case of
processors for hire, ((be)) is equal to the gross income of the
business, multiplied by the rate of:
(i) 0.4235 percent from October 1, 2005, through ((the later of))
June 30, 2007; and
(ii) 0.2904 percent beginning July 1, 2007.
(b) Beginning July 1, 2008, upon every person who is not eligible
to report under the provisions of (a) of this subsection (((11))) (10)
and is engaging within this state in the business of manufacturing
tooling specifically designed for use in manufacturing commercial
airplanes or components of such airplanes, or making sales, at retail
or wholesale, of such tooling manufactured by the seller, as to such
persons the amount of tax with respect to such business ((shall)), in
the case of manufacturers, ((be)) is equal to the value of the product
manufactured and the gross proceeds of sales of the product
manufactured, or in the case of processors for hire, ((be)) is equal to
the gross income of the business, multiplied by the rate of 0.2904
percent.
(c) For the purposes of this subsection (((11))) (10), "commercial
airplane" and "component" have the same meanings as provided in RCW
82.32.550.
(d) In addition to all other requirements under this title, a
person eligible for the tax rate under this subsection (((11))) (10)
must report as required under RCW 82.32.545.
(e) This subsection (((11))) (10) does not apply on and after July
1, 2024.
(((12))) (11)(a) Until July 1, 2024, upon every person engaging
within this state in the business of extracting timber or extracting
for hire timber; as to such persons the amount of tax with respect to
the business ((shall)), in the case of extractors, ((be)) is equal to
the value of products, including by-products, extracted, or in the case
of extractors for hire, ((be)) is equal to the gross income of the
business, multiplied by the rate of 0.4235 percent from July 1, 2006,
through June 30, 2007, and 0.2904 percent from July 1, 2007, through
June 30, 2024.
(b) Until July 1, 2024, upon every person engaging within this
state in the business of manufacturing or processing for hire: (i)
Timber into timber products or wood products; or (ii) timber products
into other timber products or wood products; as to such persons the
amount of the tax with respect to the business ((shall)), in the case
of manufacturers, ((be)) is equal to the value of products, including
by-products, manufactured, or in the case of processors for hire,
((be)) is equal to the gross income of the business, multiplied by the
rate of 0.4235 percent from July 1, 2006, through June 30, 2007, and
0.2904 percent from July 1, 2007, through June 30, 2024.
(c) Until July 1, 2024, upon every person engaging within this
state in the business of selling at wholesale: (i) Timber extracted by
that person; (ii) timber products manufactured by that person from
timber or other timber products; or (iii) wood products manufactured by
that person from timber or timber products; as to such persons the
amount of the tax with respect to the business ((shall be)) is equal to
the gross proceeds of sales of the timber, timber products, or wood
products multiplied by the rate of 0.4235 percent from July 1, 2006,
through June 30, 2007, and 0.2904 percent from July 1, 2007, through
June 30, 2024.
(d) Until July 1, 2024, upon every person engaging within this
state in the business of selling standing timber; as to such persons
the amount of the tax with respect to the business ((shall be)) is
equal to the gross income of the business multiplied by the rate of
0.2904 percent. For purposes of this subsection (((12))) (11)(d),
"selling standing timber" means the sale of timber apart from the land,
where the buyer is required to sever the timber within thirty months
from the date of the original contract, regardless of the method of
payment for the timber and whether title to the timber transfers
before, upon, or after severance.
(e) For purposes of this subsection, the following definitions
apply:
(i) "Biocomposite surface products" means surface material products
containing, by weight or volume, more than fifty percent recycled paper
and that also use nonpetroleum-based phenolic resin as a bonding agent.
(ii) "Paper and paper products" means products made of interwoven
cellulosic fibers held together largely by hydrogen bonding. "Paper
and paper products" includes newsprint; office, printing, fine, and
pressure-sensitive papers; paper napkins, towels, and toilet tissue;
kraft bag, construction, and other kraft industrial papers; paperboard,
liquid packaging containers, containerboard, corrugated, and solid-
fiber containers including linerboard and corrugated medium; and
related types of cellulosic products containing primarily, by weight or
volume, cellulosic materials. "Paper and paper products" does not
include books, newspapers, magazines, periodicals, and other printed
publications, advertising materials, calendars, and similar types of
printed materials.
(iii) "Recycled paper" means paper and paper products having fifty
percent or more of their fiber content that comes from postconsumer
waste. For purposes of this subsection (((12))) (11)(e)(iii),
"postconsumer waste" means a finished material that would normally be
disposed of as solid waste, having completed its life cycle as a
consumer item.
(iv) "Timber" means forest trees, standing or down, on privately or
publicly owned land. "Timber" does not include Christmas trees that
are cultivated by agricultural methods or short-rotation hardwoods as
defined in RCW 84.33.035.
(v) "Timber products" means:
(A) Logs, wood chips, sawdust, wood waste, and similar products
obtained wholly from the processing of timber, short-rotation hardwoods
as defined in RCW 84.33.035, or both;
(B) Pulp, including market pulp and pulp derived from recovered
paper or paper products; and
(C) Recycled paper, but only when used in the manufacture of
biocomposite surface products.
(vi) "Wood products" means paper and paper products; dimensional
lumber; engineered wood products such as particleboard, oriented strand
board, medium density fiberboard, and plywood; wood doors; wood
windows; and biocomposite surface products.
(((13))) (12) Upon every person engaging within this state in
inspecting, testing, labeling, and storing canned salmon owned by
another person, as to such persons, the amount of tax with respect to
such activities ((shall be)) is equal to the gross income derived from
such activities multiplied by the rate of 0.484 percent.
(((14))) (13) Upon every person engaging within this state in the
business of printing a newspaper, publishing a newspaper, or both, the
amount of tax on such business is equal to the gross income of the
business multiplied by the rate of 0.2904 percent.
Sec. 605 RCW 82.04.250 and 2008 c 81 s 5 are each amended to read
as follows:
(1) Upon every person engaging within this state in the business of
making sales at retail, except persons taxable as retailers under other
provisions of this chapter, as to such persons, the amount of tax with
respect to such business ((shall be)) is equal to the gross proceeds of
sales of the business, multiplied by the rate of 0.471 percent.
(2) Upon every person engaging within this state in the business of
making sales at retail that are exempt from the tax imposed under
chapter 82.08 RCW by reason of RCW 82.08.0261, 82.08.0262, or
82.08.0263, except persons taxable under RCW 82.04.260(((11))) (10) or
subsection (3) of this section, as to such persons, the amount of tax
with respect to such business ((shall be)) is equal to the gross
proceeds of sales of the business, multiplied by the rate of 0.484
percent.
(3) Upon every person classified by the federal aviation
administration as a federal aviation regulation part 145 certificated
repair station and that is engaging within this state in the business
of making sales at retail that are exempt from the tax imposed under
chapter 82.08 RCW by reason of RCW 82.08.0261, 82.08.0262, or
82.08.0263, as to such persons, the amount of tax with respect to such
business ((shall be)) is equal to the gross proceeds of sales of the
business, multiplied by the rate of .2904 percent.
Sec. 606 RCW 82.04.250 and 2007 c 54 s 5 are each amended to read
as follows:
(1) Upon every person engaging within this state in the business of
making sales at retail, except persons taxable as retailers under other
provisions of this chapter, as to such persons, the amount of tax with
respect to such business ((shall be)) is equal to the gross proceeds of
sales of the business, multiplied by the rate of 0.471 percent.
(2) Upon every person engaging within this state in the business of
making sales at retail that are exempt from the tax imposed under
chapter 82.08 RCW by reason of RCW 82.08.0261, 82.08.0262, or
82.08.0263, except persons taxable under RCW 82.04.260(((11))) (10), as
to such persons, the amount of tax with respect to such business
((shall be)) is equal to the gross proceeds of sales of the business,
multiplied by the rate of 0.484 percent.
Sec. 607 RCW 82.04.261 and 2007 c 54 s 7 and 2007 c 48 s 4 are
each reenacted and amended to read as follows:
(1) In addition to the taxes imposed under RCW 82.04.260(((12)))
(11), a surcharge is imposed on those persons who are subject to any of
the taxes imposed under RCW 82.04.260(((12))) (11). Except as
otherwise provided in this section, the surcharge is equal to 0.052
percent. The surcharge is added to the rates provided in RCW
82.04.260(((12))) (11) (a), (b), (c), and (d). The surcharge and this
section expire July 1, 2024.
(2) All receipts from the surcharge imposed under this section
((shall)) must be deposited into the forest and fish support account
created in RCW 76.09.405.
(3)(a) The surcharge imposed under this section ((shall be)) is
suspended if:
(i) Receipts from the surcharge total at least eight million
dollars during any fiscal biennium; or
(ii) The office of financial management certifies to the department
that the federal government has appropriated at least two million
dollars for participation in forest and fish report-related activities
by federally recognized Indian tribes located within the geographical
boundaries of the state of Washington for any federal fiscal year.
(b)(i) The suspension of the surcharge under (a)(i) of this
subsection (3) ((shall)) takes effect on the first day of the calendar
month that is at least thirty days after the end of the month during
which the department determines that receipts from the surcharge total
at least eight million dollars during the fiscal biennium. The
surcharge ((shall be)) is imposed again at the beginning of the
following fiscal biennium.
(ii) The suspension of the surcharge under (a)(ii) of this
subsection (3) ((shall)) takes effect on the later of the first day of
October of any federal fiscal year for which the federal government
appropriates at least two million dollars for participation in forest
and fish report-related activities by federally recognized Indian
tribes located within the geographical boundaries of the state of
Washington, or the first day of a calendar month that is at least
thirty days following the date that the office of financial management
makes a certification to the department under subsection (5) of this
section. The surcharge ((shall be)) is imposed again on the first day
of the following July.
(4)(a) If, by October 1st of any federal fiscal year, the office of
financial management certifies to the department that the federal
government has appropriated funds for participation in forest and fish
report-related activities by federally recognized Indian tribes located
within the geographical boundaries of the state of Washington but the
amount of the appropriation is less than two million dollars, the
department ((shall)) must adjust the surcharge in accordance with this
subsection.
(b) The department ((shall)) must adjust the surcharge by an amount
that the department estimates will cause the amount of funds deposited
into the forest and fish support account for the state fiscal year that
begins July 1st and that includes the beginning of the federal fiscal
year for which the federal appropriation is made, to be reduced by
twice the amount of the federal appropriation for participation in
forest and fish report-related activities by federally recognized
Indian tribes located within the geographical boundaries of the state
of Washington.
(c) Any adjustment in the surcharge ((shall)) takes effect at the
beginning of a calendar month that is at least thirty days after the
date that the office of financial management makes the certification
under subsection (5) of this section.
(d) The surcharge ((shall be)) is imposed again at the rate
provided in subsection (1) of this section on the first day of the
following state fiscal year unless the surcharge is suspended under
subsection (3) of this section or adjusted for that fiscal year under
this subsection.
(e) Adjustments of the amount of the surcharge by the department
are final and ((shall)) may not be used to challenge the validity of
the surcharge imposed under this section.
(f) The department ((shall)) must provide timely notice to affected
taxpayers of the suspension of the surcharge or an adjustment of the
surcharge.
(5) The office of financial management ((shall)) must make the
certification to the department as to the status of federal
appropriations for tribal participation in forest and fish report-related activities.
Sec. 608 RCW 82.04.298 and 2008 c 49 s 1 are each amended to read
as follows:
(1) The amount of tax with respect to a qualified grocery
distribution cooperative's sales of groceries or related goods for
resale, excluding items subject to tax under ((RCW 82.04.260(4)))
section 602 of this act, to customer-owners of the grocery distribution
cooperative is equal to the gross proceeds of sales of the grocery
distribution cooperative multiplied by the rate of one and one-half
percent.
(2) A qualified grocery distribution cooperative is allowed a
deduction from the gross proceeds of sales of groceries or related
goods for resale, excluding items subject to tax under ((RCW
82.04.260(4))) section 602 of this act, to customer-owners of the
grocery distribution cooperative that is equal to the portion of the
gross proceeds of sales for resale that represents the actual cost of
the merchandise sold by the grocery distribution cooperative to
customer-owners.
(3) The definitions in this subsection apply throughout this
section unless the context clearly requires otherwise.
(a) "Grocery distribution cooperative" means an entity that sells
groceries and related items to customer-owners of the grocery
distribution cooperative and has customer-owners, in the aggregate, who
own a majority of the outstanding ownership interests of the grocery
distribution cooperative or of the entity controlling the grocery
distribution cooperative. "Grocery distribution cooperative" includes
an entity that controls a grocery distribution cooperative.
(b) "Qualified grocery distribution cooperative" means:
(i) A grocery distribution cooperative that has been determined by
a court of record of the state of Washington to be not engaged in
wholesaling or making sales at wholesale, within the meaning of RCW
82.04.270 or any similar provision of a municipal ordinance that
imposes a tax on gross receipts, gross proceeds of sales, or gross
income, with respect to purchases made by customer-owners, and
subsequently changes its form of doing business to make sales at
wholesale of groceries or related items to its customer-owners; or
(ii) A grocery distribution cooperative that has acquired
substantially all of the assets of a grocery distribution cooperative
described in (b)(i) of this subsection.
(c) "Customer-owner" means a person who has an ownership interest
in a grocery distribution cooperative and purchases groceries and
related items at wholesale from that grocery distribution cooperative.
(d) "Controlling" means holding fifty percent or more of the voting
interests of an entity and having at least equal power to direct or
cause the direction of the management and policies of the entity,
whether through the ownership of voting securities, by contract, or
otherwise.
Sec. 609 RCW 82.04.334 and 2007 c 48 s 3 are each amended to read
as follows:
This chapter does not apply to any sale of standing timber excluded
from the definition of "sale" in RCW 82.45.010(3). The definitions in
RCW 82.04.260(((12))) (11) apply to this section.
Sec. 610 RCW 82.04.440 and 2006 c 300 s 8 and 2006 c 84 s 6 are
each reenacted and amended to read as follows:
(1) Every person engaged in activities that are subject to tax
under two or more provisions of RCW 82.04.230 through 82.04.298,
inclusive, ((shall be)) is taxable under each provision applicable to
those activities.
(2) Persons taxable under RCW 82.04.2909(2), 82.04.250, 82.04.270,
82.04.294(2), or 82.04.260 (1) (b), (c), (((4),)) or (d), (10), or
(11), or (((12))) section 602(2) of this act with respect to selling
products in this state, including those persons who are also taxable
under RCW 82.04.261, ((shall be)) are allowed a credit against those
taxes for any (a) manufacturing taxes paid with respect to the
manufacturing of products so sold in this state, and/or (b) extracting
taxes paid with respect to the extracting of products so sold in this
state or ingredients of products so sold in this state. Extracting
taxes taken as credit under subsection (3) of this section may also be
taken under this subsection, if otherwise allowable under this
subsection. The amount of the credit ((shall)) may not exceed the tax
liability arising under this chapter with respect to the sale of those
products.
(3) Persons taxable as manufacturers under RCW 82.04.240 or
82.04.260 (1)(b) or (((12))) (11), including those persons who are also
taxable under RCW 82.04.261, ((shall be)) are allowed a credit against
those taxes for any extracting taxes paid with respect to extracting
the ingredients of the products so manufactured in this state. The
amount of the credit ((shall)) may not exceed the tax liability arising
under this chapter with respect to the manufacturing of those products.
(4) Persons taxable under RCW 82.04.230, 82.04.240, 82.04.2909(1),
82.04.294(1), 82.04.2404, or 82.04.260 (1), (2), (((4),)) (10), or
(11), or (((12))) section 602(1) of this act, including those persons
who are also taxable under RCW 82.04.261, with respect to extracting or
manufacturing products in this state ((shall be)) are allowed a credit
against those taxes for any (i) gross receipts taxes paid to another
state with respect to the sales of the products so extracted or
manufactured in this state, (ii) manufacturing taxes paid with respect
to the manufacturing of products using ingredients so extracted in this
state, or (iii) manufacturing taxes paid with respect to manufacturing
activities completed in another state for products so manufactured in
this state. The amount of the credit ((shall)) may not exceed the tax
liability arising under this chapter with respect to the extraction or
manufacturing of those products.
(5) For the purpose of this section:
(a) "Gross receipts tax" means a tax:
(i) Which is imposed on or measured by the gross volume of
business, in terms of gross receipts or in other terms, and in the
determination of which the deductions allowed would not constitute the
tax an income tax or value added tax; and
(ii) Which is also not, pursuant to law or custom, separately
stated from the sales price.
(b) "State" means (i) the state of Washington, (ii) a state of the
United States other than Washington, or any political subdivision of
such other state, (iii) the District of Columbia, and (iv) any foreign
country or political subdivision thereof.
(c) "Manufacturing tax" means a gross receipts tax imposed on the
act or privilege of engaging in business as a manufacturer, and
includes (i) the taxes imposed in RCW 82.04.240, 82.04.2404,
82.04.2909(1), 82.04.260 (1), (2), (((4),)) (10), and (11), ((and
(12))) section 602(1) of this act, and 82.04.294(1); (ii) the tax
imposed under RCW 82.04.261 on persons who are engaged in business as
a manufacturer; and (iii) similar gross receipts taxes paid to other
states.
(d) "Extracting tax" means a gross receipts tax imposed on the act
or privilege of engaging in business as an extractor, and includes (i)
the tax imposed on extractors in RCW 82.04.230 and 82.04.260(((12)))
(11); (ii) the tax imposed under RCW 82.04.261 on persons who are
engaged in business as an extractor; and (iii) similar gross receipts
taxes paid to other states.
(e) "Business", "manufacturer", "extractor", and other terms used
in this section have the meanings given in RCW 82.04.020 through
82.04.212, notwithstanding the use of those terms in the context of
describing taxes imposed by other states.
Sec. 611 RCW 82.04.4463 and 2008 c 81 s 8 are each amended to
read as follows:
(1) In computing the tax imposed under this chapter, a credit is
allowed for property taxes and leasehold excise taxes paid during the
calendar year.
(2) The credit is equal to:
(a)(i)(A) Property taxes paid on buildings, and land upon which the
buildings are located, constructed after December 1, 2003, and used
exclusively in manufacturing commercial airplanes or components of such
airplanes; and
(B) Leasehold excise taxes paid with respect to buildings
constructed after January 1, 2006, the land upon which the buildings
are located, or both, if the buildings are used exclusively in
manufacturing commercial airplanes or components of such airplanes; and
(C) Property taxes or leasehold excise taxes paid on, or with
respect to, buildings constructed after June 30, 2008, the land upon
which the buildings are located, or both, and used exclusively for
aerospace product development or in providing aerospace services, by
persons not within the scope of (a)(i)(A) and (B) of this subsection
(2) and are: (I) Engaged in manufacturing tooling specifically
designed for use in manufacturing commercial airplanes or their
components; or (II) taxable under RCW 82.04.290(3) or 82.04.250(3); or
(ii) Property taxes attributable to an increase in assessed value
due to the renovation or expansion, after: (A) December 1, 2003, of a
building used exclusively in manufacturing commercial airplanes or
components of such airplanes; and (B) June 30, 2008, of buildings used
exclusively for aerospace product development or in providing aerospace
services, by persons not within the scope of (a)(ii)(A) of this
subsection (2) and are: (I) Engaged in manufacturing tooling
specifically designed for use in manufacturing commercial airplanes or
their components; or (II) taxable under RCW 82.04.290(3) or
82.04.250(3); and
(b) An amount equal to:
(i)(A) Property taxes paid, by persons taxable under RCW
82.04.260(((11))) (10)(a), on machinery and equipment exempt under RCW
82.08.02565 or 82.12.02565 and acquired after December 1, 2003;
(B) Property taxes paid, by persons taxable under RCW
82.04.260(((11))) (10)(b), on machinery and equipment exempt under RCW
82.08.02565 or 82.12.02565 and acquired after June 30, 2008; or
(C) Property taxes paid, by persons taxable under RCW
((82.04.0250(3) [82.04.250(3)])) 82.04.250(3) or 82.04.290(3), on
computer hardware, computer peripherals, and software exempt under RCW
82.08.975 or 82.12.975 and acquired after June 30, 2008.
(ii) For purposes of determining the amount eligible for credit
under (i)(A) and (B) of this subsection (2)(b), the amount of property
taxes paid is multiplied by a fraction.
(((I))) (A) The numerator of the fraction is the total taxable
amount subject to the tax imposed under RCW 82.04.260(((11))) (10) (a)
or (b) on the applicable business activities of manufacturing
commercial airplanes, components of such airplanes, or tooling
specifically designed for use in the manufacturing of commercial
airplanes or components of such airplanes.
(((II))) (B) The denominator of the fraction is the total taxable
amount subject to the tax imposed under all manufacturing
classifications in chapter 82.04 RCW.
(((III))) (C) For purposes of both the numerator and denominator of
the fraction, the total taxable amount refers to the total taxable
amount required to be reported on the person's returns for the calendar
year before the calendar year in which the credit under this section is
earned. The department may provide for an alternative method for
calculating the numerator in cases where the tax rate provided in RCW
82.04.260(((11))) (10) for manufacturing was not in effect during the
full calendar year before the calendar year in which the credit under
this section is earned.
(((IV))) (D) No credit is available under (b)(i)(A) or (B) of this
subsection (2) if either the numerator or the denominator of the
fraction is zero. If the fraction is greater than or equal to nine-tenths, then the fraction is rounded to one.
(((V))) (E) As used in (((III))) (b)(ii)(C) of this subsection
(2)(((b)(ii)(C))), "returns" means the tax returns for which the tax
imposed under this chapter is reported to the department.
(3) The definitions in this subsection apply throughout this
section, unless the context clearly indicates otherwise.
(a) "Aerospace product development" has the same meaning as
provided in RCW 82.04.4461.
(b) "Aerospace services" has the same meaning given in RCW
82.08.975.
(c) "Commercial airplane" and "component" have the same meanings as
provided in RCW 82.32.550.
(4) A credit earned during one calendar year may be carried over to
be credited against taxes incurred in a subsequent calendar year, but
may not be carried over a second year. No refunds may be granted for
credits under this section.
(5) In addition to all other requirements under this title, a
person taking the credit under this section must report as required
under RCW 82.32.545.
(6) This section expires July 1, 2024.
Sec. 612 RCW 82.08.806 and 2009 c 461 s 5 are each amended to
read as follows:
(1) The tax levied by RCW 82.08.020 does not apply to sales, to a
printer or publisher, of computer equipment, including repair parts and
replacement parts for such equipment, when the computer equipment is
used primarily in the printing or publishing of any printed material,
or to sales of or charges made for labor and services rendered in
respect to installing, repairing, cleaning, altering, or improving the
computer equipment. This exemption applies only to computer equipment
not otherwise exempt under RCW 82.08.02565.
(2) A person taking the exemption under this section must keep
records necessary for the department to verify eligibility under this
section. This exemption is available only when the purchaser provides
the seller with an exemption certificate in a form and manner
prescribed by the department. The seller ((shall)) must retain a copy
of the certificate for the seller's files.
(3) The definitions in this subsection (3) apply throughout this
section, unless the context clearly requires otherwise.
(a) "Computer" has the same meaning as in RCW 82.04.215.
(b) "Computer equipment" means a computer and the associated
physical components that constitute a computer system, including
monitors, keyboards, printers, modems, scanners, pointing devices, and
other computer peripheral equipment, cables, servers, and routers.
"Computer equipment" also includes digital cameras and computer
software.
(c) "Computer software" has the same meaning as in RCW 82.04.215.
(d) "Primarily" means greater than fifty percent as measured by
time.
(e) "Printer or publisher" means a person, as defined in RCW
82.04.030, who is subject to tax under RCW 82.04.260(((14))) (13) or
82.04.280(1).
(4) "Computer equipment" does not include computer equipment that
is used primarily for administrative purposes including but not limited
to payroll processing, accounting, customer service, telemarketing, and
collection. If computer equipment is used simultaneously for
administrative and nonadministrative purposes, the administrative use
((shall)) must be disregarded during the period of simultaneous use for
purposes of determining whether the computer equipment is used
primarily for administrative purposes.
Sec. 613 RCW 82.32.545 and 2008 c 81 s 10 are each amended to
read as follows:
(1) The legislature finds that accountability and effectiveness are
important aspects of setting tax policy. In order to make policy
choices regarding the best use of limited state resources the
legislature needs information on how a tax incentive is used.
(2)(a) A person who reports taxes under RCW 82.04.260(((11))) (10),
82.04.250(3), or 82.04.290(3), or who claims an exemption or credit
under RCW 82.04.4461, 82.08.980, 82.12.980, 82.29A.137, 84.36.655, and
82.04.4463 ((shall)) must make an annual report to the department
detailing employment, wages, and employer-provided health and
retirement benefits for employment positions in Washington. However,
persons engaged in manufacturing commercial airplanes or components of
such airplanes may report employment, wage, and benefit information per
job at the manufacturing site. The report ((shall)) may not include
names of employees. The report ((shall)) must also detail employment
by the total number of full-time, part-time, and temporary positions.
The first report filed under this subsection ((shall)) must include
employment, wage, and benefit information for the twelve-month period
immediately before first use of a preferential tax rate under RCW
82.04.260(((11))) (10), 82.04.250(3), or 82.04.290(3), or tax exemption
or credit under RCW 82.04.4461, 82.08.980, 82.12.980, 82.29A.137,
84.36.655, and 82.04.4463, unless a survey covering this twelve-month
period was filed as required by a statute repealed by chapter 81, Laws
of 2008. The report is due by March 31st following any year in which
a preferential tax rate under RCW 82.04.260(((11))) (10), 82.04.250(3),
or 82.04.290(3), is used, or tax exemption or credit under RCW
82.04.4461, 82.08.980, 82.12.980, 82.29A.137, 84.36.655, and 82.04.4463
is taken. This information is not subject to the confidentiality
provisions of RCW 82.32.330 and may be disclosed to the public upon
request.
(b) If a person fails to submit an annual report under (a) of this
subsection by the due date of the report, the department ((shall)) must
declare the amount of taxes exempted or credited, or reduced in the
case of the preferential business and occupation tax rate, for that
year to be immediately due and payable. Excise taxes payable under
this subsection are subject to interest but not penalties, as provided
under this chapter. This information is not subject to the
confidentiality provisions of RCW 82.32.330 and may be disclosed to the
public upon request.
(3) By November 1, 2010, and by November 1, 2023, the fiscal
committees of the house of representatives and the senate, in
consultation with the department, ((shall)) must report to the
legislature on the effectiveness of chapter 1, Laws of 2003 2nd sp.
sess., chapter 177, Laws of 2006, and chapter 81, Laws of 2008 in
regard to keeping Washington competitive. The report ((shall)) must
measure the effect of these laws on job retention, net jobs created for
Washington residents, company growth, diversification of the state's
economy, cluster dynamics, and other factors as the committees select.
The reports ((shall)) must include a discussion of principles to apply
in evaluating whether the legislature should reenact any or all of the
tax preferences in chapter 1, Laws of 2003 2nd sp. sess., chapter 177,
Laws of 2006, and chapter 81, Laws of 2008.
Sec. 614 RCW 82.32.550 and 2008 c 81 s 12 are each amended to
read as follows:
(1)(((a) Chapter 1, Laws of 2003 2nd sp. sess. takes effect on the
first day of the month in which the governor and a manufacturer of
commercial airplanes sign a memorandum of agreement regarding an
affirmative final decision to site a significant commercial airplane
final assembly facility in Washington state. The department shall
provide notice of the effective date of chapter 1, Laws of 2003 2nd sp.
sess. to affected taxpayers, the legislature, and others as deemed
appropriate by the department.)) "Commercial airplane" has its ordinary meaning, which is an
airplane certified by the federal aviation administration for
transporting persons or property, and any military derivative of such
an airplane.
(b) Chapter 1, Laws of 2003 2nd sp. sess. is contingent upon the
siting of a significant commercial airplane final assembly facility in
the state of Washington. If a memorandum of agreement under subsection
(1) of this section is not signed by June 30, 2005, chapter 1, Laws of
2003 2nd sp. sess. is null and void.
(c)(i) The rate in RCW 82.04.260(11)(a)(ii) takes effect July 1,
2007.
(ii) If on December 31, 2007, final assembly of a superefficient
airplane has not begun in Washington state, the department shall
provide notice of such to affected taxpayers, the legislature, and
others as deemed appropriate by the department.
(2) The definitions in this subsection apply throughout this
section.
(a)
(((b))) (2) "Component" means a part or system certified by the
federal aviation administration for installation or assembly into a
commercial airplane.
(((c) "Final assembly of a superefficient airplane" means the
activity of assembling an airplane from components parts necessary for
its mechanical operation such that the finished commercial airplane is
ready to deliver to the ultimate consumer.)) (3) "Superefficient airplane" means a twin aisle airplane
that carries between two hundred and three hundred fifty passengers,
with a range of more than seven thousand two hundred nautical miles, a
cruising speed of approximately mach .85, and that uses fifteen to
twenty percent less fuel than other similar airplanes on the market.
(d) "Significant commercial airplane final assembly facility" means
a location with the capacity to produce at least thirty-six
superefficient airplanes a year.
(e) "Siting" means a final decision by a manufacturer to locate a
significant commercial airplane final assembly facility in Washington
state.
(f)
Sec. 615 RCW 82.32.630 and 2007 c 48 s 6 are each amended to read
as follows:
(1) The legislature finds that accountability and effectiveness are
important aspects of setting tax policy. In order to make policy
choices regarding the best use of limited state resources, the
legislature needs information on how a tax incentive is used.
(2)(a) A person who reports taxes under RCW 82.04.260(((12) shall))
(11) must file a complete annual survey with the department. The
survey is due by March 31st following any year in which a person
reports taxes under RCW 82.04.260(((12))) (11). The department may
extend the due date for timely filing of annual surveys under this
section as provided in RCW 82.32.590. The survey ((shall)) must
include the amount of tax reduced under the preferential rate in RCW
82.04.260(((12))) (11). The survey ((shall)) must also include the
following information for employment positions in Washington:
(i) The number of total employment positions;
(ii) Full-time, part-time, and temporary employment positions as a
percent of total employment;
(iii) The number of employment positions according to the following
wage bands: Less than thirty thousand dollars; thirty thousand dollars
or greater, but less than sixty thousand dollars; and sixty thousand
dollars or greater. A wage band containing fewer than three
individuals may be combined with another wage band; and
(iv) The number of employment positions that have employer-provided
medical, dental, and retirement benefits, by each of the wage bands.
(b) The first survey filed under this subsection ((shall)) must
include employment, wage, and benefit information for the twelve-month
period immediately before first use of a preferential tax rate under
RCW 82.04.260(((12))) (11).
(c) As part of the annual survey, the department may request
additional information, including the amount of investment in equipment
used in the activities taxable under the preferential rate in RCW
82.04.260(((12))) (11), necessary to measure the results of, or
determine eligibility for, the preferential tax rate in RCW
82.04.260(((12))) (11).
(d) All information collected under this section, except the amount
of the tax reduced under the preferential rate in RCW 82.04.260(((12)))
(11), is deemed taxpayer information under RCW 82.32.330. Information
on the amount of tax reduced is not subject to the confidentiality
provisions of RCW 82.32.330 and may be disclosed to the public upon
request, except as provided in (e) of this subsection. If the amount
of the tax reduced as reported on the survey is different than the
amount actually reduced based on the taxpayer's excise tax returns or
otherwise allowed by the department, the amount actually reduced may be
disclosed.
(e) Persons for whom the actual amount of the tax reduction is less
than ten thousand dollars during the period covered by the survey may
request the department to treat the amount of the tax reduction as
confidential under RCW 82.32.330.
(f) Small harvesters as defined in RCW 84.33.035 are not required
to file the annual survey under this section.
(3) If a person fails to submit a complete annual survey under
subsection (2) of this section by the due date or any extension under
RCW 82.32.590, the department ((shall)) must declare the amount of
taxes reduced under the preferential rate in RCW 82.04.260(((12))) (11)
for the period covered by the survey to be immediately due and payable.
The department ((shall)) must assess interest, but not penalties, on
the taxes. Interest ((shall)) must be assessed at the rate provided
for delinquent excise taxes under this chapter, retroactively to the
date the reduced taxes were due, and ((shall)) will accrue until the
amount of the reduced taxes is repaid.
(4) The department ((shall)) must use the information from the
annual survey required under subsection (2) of this section to prepare
summary descriptive statistics by category. The department ((shall))
must report these statistics to the legislature each year by September
1st. The requirement to prepare and report summary descriptive
statistics ((shall)) ceases after September 1, 2025.
(5) By November 1, 2011, and November 1, 2023, the fiscal
committees of the house of representatives and the senate, in
consultation with the department, ((shall)) must report to the
legislature on the effectiveness of the preferential tax rate provided
in RCW 82.04.260(((12))) (11). The report shall measure the effect of
the preferential tax rate provided in RCW 82.04.260(((12))) (11) on job
retention, net jobs created for Washington residents, company growth,
and other factors as the committees select. The report ((shall)) must
include a discussion of principles to apply in evaluating whether the
legislature should continue the preferential tax rate provided in RCW
82.04.260(((12))) (11).
Sec. 616 RCW 82.32.632 and 2009 c 461 s 6 are each amended to
read as follows:
(1)(a) Every person claiming the preferential rate provided in RCW
82.04.260(((14))) (13) must file a complete annual report with the
department. The report is due by March 31st of the year following any
calendar year in which a person is eligible to claim the preferential
rate provided in RCW 82.04.260(((14))) (13). The department may extend
the due date for timely filing of annual reports under this section as
provided in RCW 82.32.590.
(b) The report must include information detailing employment,
wages, and employer-provided health and retirement benefits for
employment positions in Washington for the year that the preferential
rate was claimed. The report must not include names of employees. The
report must also detail employment by the total number of full-time,
part-time, and temporary positions for the year that the tax preference
was claimed.
(c) If a person filing a report under this section did not file a
report with the department in the previous calendar year, the report
filed under this section must also include employment, wage, and
benefit information for the calendar year immediately preceding the
calendar year for which the preferential rate provided in RCW
82.04.260(((14))) (13) was claimed.
(2) As part of the annual report, the department may request
additional information necessary to measure the results of, or
determine eligibility for, the preferential rate provided in RCW
82.04.260(((14))) (13).
(3) Other than information requested under subsection (2) of this
section, the information contained in an annual report filed under this
section is not subject to the confidentiality provisions of RCW
82.32.330 and may be disclosed to the public upon request.
(4) Except as otherwise provided by law, if a person claims the
preferential rate provided in RCW 82.04.260(((14))) (13) but fails to
submit a report by the due date or any extension under RCW 82.32.590,
the department must declare the amount of the tax preference claimed
for the previous calendar year to be immediately due and payable. The
department must assess interest, but not penalties, on the amounts due
under this subsection. The interest must be assessed at the rate
provided for delinquent taxes under this chapter, retroactively to the
date the tax preference was claimed, and accrues until the taxes for
which the tax preference was claimed are repaid. Amounts due under
this subsection are not subject to the confidentiality provisions of
RCW 82.32.330 and may be disclosed to the public upon request.
(5) By November 1, 2014, and November 1, 2016, the fiscal
committees of the house of representatives and the senate, in
consultation with the department, must report to the legislature on the
effectiveness of the preferential rate provided in RCW
82.04.260(((14))) (13). The report must measure the effect of the
preferential rate provided in RCW 82.04.260(((14))) (13) on job
retention, net jobs created for Washington residents, industry growth,
and other factors as the committees select. The report must include a
discussion of principles to apply in evaluating whether the legislature
should continue the preferential rate provided in RCW 82.04.260(((14)))
(13).
Sec. 617 RCW 82.45.195 and 2007 c 48 s 7 are each amended to read
as follows:
A sale of standing timber is exempt from tax under this chapter if
the gross income from such sale is taxable under RCW 82.04.260(((12)))
(11)(d).
Sec. 618 RCW 35.102.150 and 2009 c 461 s 4 are each amended to
read as follows:
Notwithstanding RCW 35.102.130, a city that imposes a business and
occupation tax must allocate a person's gross income from the
activities of printing, and of publishing newspapers, periodicals, or
magazines, to the principal place in this state from which the
taxpayer's business is directed or managed. As used in this section,
the activities of printing, and of publishing newspapers, periodicals,
or magazines are those activities to which the tax rates in RCW
82.04.260(((14))) (13) and 82.04.280(1) apply.
Sec. 619 RCW 48.14.080 and 2009 c 535 s 1102 are each amended to
read as follows:
(1) As to insurers, other than title insurers and taxpayers under
RCW 48.14.0201, the taxes imposed by this title ((shall be)) are in
lieu of all other taxes, except as otherwise provided in this section.
(2) Subsection (1) of this section does not apply with respect to:
(a) Taxes on real and tangible personal property;
(b) Excise taxes on the sale, purchase, use, or possession of (i)
real property; (ii) tangible personal property; (iii) extended
warranties; (iv) services, including digital automated services as
defined in RCW 82.04.192; and (v) digital goods and digital codes as
those terms are defined in RCW 82.04.192; and
(c) The tax imposed in RCW 82.04.260(((10))) (9), regarding public
and nonprofit hospitals.
(3) For the purposes of this section, the term "taxes" includes
taxes imposed by the state or any county, city, town, municipal
corporation, quasi-municipal corporation, or other political
subdivision.
Sec. 701 RCW 82.08.890 and 2009 c 469 s 601 are each amended to
read as follows:
(1) The tax levied by RCW 82.08.020 does not apply to sales to
eligible persons of:
(a) Qualifying livestock nutrient management equipment;
(b) Labor and services rendered in respect to installing,
repairing, cleaning, altering, or improving qualifying livestock
nutrient management equipment; and
(c)(i) Labor and services rendered in respect to repairing,
cleaning, altering, or improving of qualifying livestock nutrient
management facilities, or to tangible personal property that becomes an
ingredient or component of qualifying livestock nutrient management
facilities in the course of repairing, cleaning, altering, or improving
of such facilities.
(ii) The exemption provided in this subsection (1)(c) does not
apply to the sale of or charge made for: (A) Labor and services
rendered in respect to the constructing of new, or replacing previously
existing, qualifying livestock nutrient management facilities; or (B)
tangible personal property that becomes an ingredient or component of
qualifying livestock nutrient management facilities during the course
of constructing new, or replacing previously existing, qualifying
livestock nutrient management facilities.
(2) The exemption provided in subsection (1) of this section
applies to sales made after the livestock nutrient management plan is:
(a) Certified under chapter 90.64 RCW; (b) approved as part of the
permit issued under chapter 90.48 RCW; or (c) approved as required
under subsection (4)(c)(iii) of this section.
(3)(a) The department of revenue must provide an exemption
certificate to an eligible person upon application by that person. The
department of agriculture must provide a list of eligible persons, as
defined in subsection (4)(c)(i) and (ii) of this section, to the
department of revenue. Conservation districts must maintain lists of
eligible persons as defined in subsection (4)(c)(iii) of this section
to allow the department of revenue to verify eligibility. The
application must be in a form and manner prescribed by the department
and must contain information regarding the location of the dairy or
animal feeding operation and other information the department may
require.
(b) A person claiming an exemption under this section must keep
records necessary for the department to verify eligibility under this
section. The exemption is available only when the buyer provides the
seller with an exemption certificate in a form and manner prescribed by
the department. The seller must retain a copy of the certificate for
the seller's files.
(4) The definitions in this subsection apply to this section and
RCW 82.12.890 unless the context clearly requires otherwise:
(a) "Animal feeding operation" means a lot or facility, other than
an aquatic animal production facility, where the following conditions
are met:
(i) Animals, other than aquatic animals, have been, are, or will be
stabled or confined and fed or maintained for a total of forty-five
days or more in any twelve-month period; and
(ii) Crops, vegetation, forage growth, or postharvest residues are
not sustained in the normal growing season over any portion of the lot
or facility.
(b) "Conservation district" means a subdivision of state government
organized under chapter 89.08 RCW.
(c) "Eligible person" means a person: (i) Licensed to produce milk
under chapter 15.36 RCW who has a certified dairy nutrient management
plan, as required by chapter 90.64 RCW; (ii) who owns an animal feeding
operation and has a permit issued under chapter 90.48 RCW; or (iii) who
owns an animal feeding operation and has a nutrient management plan
approved by a conservation district as meeting natural resource
conservation service field office technical guide standards and who
possesses an exemption certificate under RCW 82.08.855.
(d) "Handling and treatment of livestock manure" means the
activities of collecting, storing, moving, or transporting livestock
manure, separating livestock manure solids from liquids, or applying
livestock manure to the agricultural lands of an eligible person other
than through the use of pivot or linear type traveling irrigation
systems.
(e) "Permit" means either a state waste discharge permit or a
national pollutant discharge elimination system permit, or both.
(f) "Qualifying livestock nutrient management equipment" means the
following tangible personal property for exclusive use in the handling
and treatment of livestock manure, including repair and replacement
parts for such equipment: (i) Aerators; (ii) agitators; (iii) augers;
(iv) conveyers; (v) gutter cleaners; (vi) hard-hose reel traveler
irrigation systems; (vii) lagoon and pond liners and floating covers;
(viii) loaders; (ix) manure composting devices; (x) manure spreaders;
(xi) manure tank wagons; (xii) manure vacuum tanks; (xiii) poultry
house cleaners; (xiv) poultry house flame sterilizers; (xv) poultry
house washers; (xvi) poultry litter saver machines; (xvii) pipes;
(xviii) pumps; (xix) scrapers; (xx) separators; (xxi) slurry injectors
and hoses; and (xxii) wheelbarrows, shovels, and pitchforks.
(g) "Qualifying livestock nutrient management facilities" means the
following structures and facilities for exclusive use in the handling
and treatment of livestock manure: (i) Flush systems; (ii) lagoons;
(iii) liquid livestock manure storage structures, such as concrete
tanks or glass-lined steel tanks; and (iv) structures used solely for
the dry storage of manure, including roofed stacking facilities.
(5) A person may not claim the exemption under this section July 1,
2010, through June 30, 2015.
(6) This section expires July 1, 2020.
Sec. 702 RCW 82.12.890 and 2009 c 469 s 602 are each amended to
read as follows:
(1) The provisions of this chapter do not apply with respect to the
use by an eligible person of:
(a) Qualifying livestock nutrient management equipment;
(b) Labor and services rendered in respect to installing,
repairing, cleaning, altering, or improving qualifying livestock
nutrient management equipment; and
(c)(i) Tangible personal property that becomes an ingredient or
component of qualifying livestock nutrient management facilities in the
course of repairing, cleaning, altering, or improving of such
facilities.
(ii) The exemption provided in this subsection (1)(c) does not
apply to the use of tangible personal property that becomes an
ingredient or component of qualifying livestock nutrient management
facilities during the course of constructing new, or replacing
previously existing, qualifying livestock nutrient management
facilities.
(2)(a) To be eligible, the equipment and facilities must be used
exclusively for activities necessary to maintain a livestock nutrient
management plan.
(b) The exemption applies to the use of tangible personal property
and labor and services made after the livestock nutrient management
plan is: (i) Certified under chapter 90.64 RCW; (ii) approved as part
of the permit issued under chapter 90.48 RCW; or (iii) approved as
required under RCW 82.08.890(4)(c)(iii).
(3) The exemption certificate and recordkeeping requirements of RCW
82.08.890 apply to this section. The definitions in RCW 82.08.890
apply to this section.
(4) A person may not claim the exemption under this section July 1,
2010, through June 30, 2015.
(5) This section expires July 1, 2020.
NEW SECTION. Sec. 801 (1) In adopting the state's business and
occupation tax, the legislature intended to tax virtually all business
activities carried on within the state. See Simpson Inv. Co. v. Dep't
of Revenue, 141 Wn.2d 139, 149 (2000). The legislature recognizes that
the business and occupation tax applies to all activities engaged in
with the object of gain, benefit, or advantage to the taxpayer or to
another person or class, directly or indirectly, unless a specific
exemption applies.
(2) One of the major business and occupation tax exemptions is
provided in RCW 82.04.360 for income earned as an employee or servant
as distinguished from income earned as an independent contractor. The
legislature's intent in providing this exemption was to exempt employee
wages from the business and occupation tax but not to exempt income
earned as an independent contractor.
(3) The legislature finds that corporate directors are not
employees or servants of the corporation whose board they serve on and
therefore are not entitled to a business and occupation tax exemption
under RCW 82.04.360. The legislature further finds that there are no
business and occupation tax exemptions for compensation received for
serving as a member of a corporation's board of directors.
(4) The legislature also finds that there is a widespread
misunderstanding among corporate directors that the business and
occupation tax does not apply to the compensation they receive for
serving as a director of a corporation. It is the legislature's
expectation that the department of revenue will take appropriate
measures to ensure that corporate directors understand and comply with
their business and occupation tax obligations with respect to their
director compensation. However, because of the widespread
misunderstanding by corporate directors of their liability for business
and occupation tax on director compensation, the legislature finds that
it is appropriate in this unique situation to provide limited relief
against the retroactive assessment of business and occupation taxes on
corporate director compensation.
(5) The legislature also reaffirms its intent that all income of
all independent contractors is subject to business and occupation tax
unless specifically exempt under the Constitution or laws of this state
or the United States.
Sec. 802 RCW 82.04.360 and 1991 c 324 s 19 and 1991 c 275 s 2 are
each reenacted and amended to read as follows:
(1) This chapter ((shall)) does not apply to any person in respect
to his or her employment in the capacity of an employee or servant as
distinguished from that of an independent contractor. For the purposes
of this section, the definition of employee ((shall)) includes those
persons that are defined in section 3121(d)(3)(B) of the federal
internal revenue code of 1986, as amended through January 1, 1991.
(2) ((A booth renter, as defined by RCW 18.16.020, is an
independent contractor for purposes of this chapter.)) Until July 1,
2010, this chapter does not apply to amounts received by an individual
from a corporation as compensation for serving as a member of that
corporation's board of directors. Beginning April 1, 2010, such
amounts are taxable under RCW 82.04.290(2).
NEW SECTION. Sec. 803 The sole reason for deleting the language
in RCW 82.04.360(2) is because RCW 18.16.020 no longer defines the term
"booth renter." This should not be construed as a substantive change
in the law.
Sec. 901 RCW 82.48.010 and 1995 c 318 s 4 are each amended to
read as follows:
For the purposes of this chapter, unless otherwise required by the
context:
(1) "Department" means the department of licensing.
(2) "Aircraft" means any weight-carrying device or structure for
navigation of the air which is designed to be supported by the air;
(((2) "Secretary" means the secretary of transportation;))
(3) "Person" includes a firm, partnership, limited liability
company, or corporation((;)).
(4) "Small multi-engine fixed wing" means any piston-driven multi-engine fixed wing aircraft with a maximum gross weight as listed by the
manufacturer of less than seventy-five hundred pounds; and
(5) "Large multi-engine fixed wing" means any piston-driven multi-engine fixed wing aircraft with a maximum gross weight as listed by the
manufacturer of seventy-five hundred pounds or more
Sec. 902 RCW 82.48.020 and 2000 c 229 s 4 are each amended to
read as follows:
(1) An annual excise tax is hereby imposed for the privilege of
using any aircraft in the state. A current certificate of air
worthiness with a current inspection date from the appropriate federal
agency and/or the purchase of aviation fuel ((shall)) constitutes the
necessary evidence of aircraft use or intended use. ((The tax shall))
The amount of the tax is five-tenths of one percent of the taxable
value of the aircraft, as determined under section 903 of this act.
(2) The tax imposed under this section must be collected annually
or under a staggered collection schedule as required by the
((secretary)) department by rule. ((No additional tax shall be imposed
under this chapter upon any aircraft upon the transfer of ownership
thereof, if the tax imposed by this chapter with respect to such
aircraft has already been paid for the year in which transfer of
ownership occurs. A violation of this subsection is a misdemeanor
punishable as provided under chapter 9A.20 RCW.)) (3) Persons who are required to register aircraft under
chapter 47.68 RCW and who register aircraft in another state or foreign
country and avoid the ((
(2)Washington)) aircraft excise tax imposed under
this section are liable for ((such)) the unpaid excise tax. A
violation of this subsection is a gross misdemeanor.
(4) The department of revenue may, under chapter 82.32 RCW, assess
and collect the unpaid excise tax imposed under ((chapter 82.32 RCW))
this section, including the penalties and interest provided in chapter
82.32 RCW.
(((3))) (5) Except as provided under subsection((s (1) and (2)))
(3) of this section, a violation of this chapter is a misdemeanor
punishable as provided in chapter 9A.20 RCW.
NEW SECTION. Sec. 903 A new section is added to chapter 82.48
RCW to read as follows:
(1) The department of revenue must prepare at least once each year
a depreciation schedule for use in the determination of fair market
value, which is considered the taxable value for the purposes of this
chapter. The schedule must be based upon information available to the
department pertaining to the current fair market value of aircraft.
Except as otherwise provided in this section, the fair market value of
an aircraft for the purposes of this chapter must be based on the most
recent purchase price depreciated according to the year of the most
recent purchase of the aircraft. The most recent purchase price is the
consideration, whether money, credit, rights, or other property
expressed in terms of money, paid or given or contracted to be paid or
given by the purchaser to the seller for the aircraft.
(2) If the most recent purchase price of the aircraft is not
available or ascertainable, the department of revenue may determine the
fair market value using any information that may be available,
including any guidebook, report, or compendium of recognized standing
in the aviation industry. In the case of aircraft manufactured or
produced by the owner, the value of the aircraft may be determined
according to the value of the ingredients or components used to
manufacture or produce the aircraft. The amount of the tax is five-tenths of one percent of the taxable value of the aircraft, as
determined under this section.
(3) The department of revenue may adopt any rules necessary to
implement this section, including any rules necessary to provide a
reasonable method or methods to determine the fair market value of an
aircraft where the most recent purchase price is not available or
ascertainable.
Sec. 904 RCW 82.48.030 and 1983 2nd ex.s. c 3 s 22 are each
amended to read as follows:
(1) ((The amount of the tax imposed by this chapter for each
calendar year shall be as follows:
Sec. 905 RCW 82.48.070 and 1987 c 220 s 7 are each amended to
read as follows:
The ((secretary shall)) department must give a receipt to each
person paying ((the)) excise tax under this chapter.
Sec. 906 RCW 82.48.080 and 1995 c 170 s 2 are each amended to
read as follows:
The ((secretary shall)) department must regularly pay to the state
treasurer the excise taxes collected under this chapter((, which shall
be credited by the state treasurer as follows: Ninety percent to the
general fund and ten percent to the aeronautics account in the
transportation fund for administrative expenses)) for deposit into the
general fund.
Sec. 907 RCW 82.48.110 and 1967 ex.s. c 9 s 6 are each amended to
read as follows:
((The first tax to be collected under this chapter shall be for the
calendar year 1968.)) (1) No aircraft with respect to which the excise
tax imposed by this chapter is payable ((shall)) may be listed and
assessed for ad valorem taxation so long as this chapter remains in
effect((, and any such assessment heretofore made except under
authority of section 13, chapter 49, Laws of 1949 and section
82.48.110, chapter 15, Laws of 1961 is hereby directed to be canceled:
PROVIDED, That)).
(2) Any aircraft, whether or not subject to the provisions of this
chapter, with respect to which the excise tax imposed by this chapter
will not be paid or has not been paid for any year ((shall)) must be
listed and assessed for ad valorem taxation in that year, and the ad
valorem tax liability resulting from such listing and assessment
((shall)) must be collected in the same manner as though this chapter
had not been passed((: PROVIDED FURTHER, That this chapter shall not
be construed to affect any ad valorem tax based upon assessed
valuations made in 1948 and/or any preceding year for taxes payable in
1949 or any preceding year, which ad valorem tax liability tax for any
such years shall remain payable and collectible in the same manner as
though this chapter had not been passed)).
NEW SECTION. Sec. 1001 (1) The legislature finds that at the
time the revenue act of 1935 was enacted, the United States supreme
court interpreted the commerce clause of the United States Constitution
as barring a direct tax on gross receipts from interstate
transportation. As a result, the tax commission's rules to implement
the revenue act recognized explicitly that the state could not tax the
income derived from the transportation of goods across the state's
boundaries. The legislature finds that the department of revenue, as
successor to the tax commission, has maintained this exemption to this
day in a department rule, WAC 458-20-193D.
(2) The legislature recognizes that the commerce clause no longer
bars states from taxing the privilege of engaging in an interstate
business. The legislature further recognizes that under the United
States supreme court's current commerce clause jurisprudence, a state
tax affecting interstate commerce will be sustained as long as it is
applied to an activity with a substantial nexus with the taxing state,
is fairly apportioned, does not discriminate against interstate
commerce, and is fairly related to services provided by the state. See
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977).
(3) The legislature finds that the department of revenue has
maintained the tax-exempt treatment of interstate transportation for
appropriate reasons, including:
(a) The litigation risk in administratively eliminating the tax
exemption for interstate transportation;
(b) The lack of any statutory provisions for apportioning the
income of interstate transportation businesses. A legislative
determination to end the exemption has the benefit of allowing the
legislature to prescribe a specific methodology for apportioning the
income of interstate transportation businesses; and
(c) Because the transportation of persons or property across the
state's boundaries has been treated as exempt from the state's public
utility tax for nearly seventy-five years, the expectation of continued
exemption has been established over the years in the transportation
industry. Therefore, the legislature believes that, as the elected
representatives of the people, it is appropriate under these unique
circumstances for the legislature to have an opportunity to determine
the state's tax policy in regards to the public utility taxation of
interstate transportation before the department of revenue takes action
on its own.
(4) Therefore, by this act, the legislature intends to establish a
policy of taxing interstate transportation on an apportioned basis
effective July 1, 2010. However, to prevent the retroactive assessment
of public utility tax on interstate transportation on an apportioned
basis for periods prior to July 1, 2010, this act provides a statutory
deduction for income received from interstate transportation for
periods before July 1, 2010. This act also revises a use tax exemption
for motor carriers so that it is consistent with similar exemptions
provided to other interstate transportation businesses.
(5) Nothing in this act may be construed as requiring the
department of revenue to receive approval from the legislature before
changing a long-standing interpretation of the tax laws it administers.
Sec. 1002 RCW 82.16.050 and 2007 c 330 s 1 are each amended to
read as follows:
In computing tax there may be deducted from the gross income the
following items:
(1) Amounts derived by municipally owned or operated public service
businesses, directly from taxes levied for the support or maintenance
thereof. This subsection may not be construed to exempt service
charges which are spread on the property tax rolls and collected as
taxes;
(2) Amounts derived from the sale of commodities to persons in the
same public service business as the seller, for resale as such within
this state. This deduction is allowed only with respect to water
distribution, gas distribution or other public service businesses which
furnish water, gas or any other commodity in the performance of public
service businesses;
(3) Amounts actually paid by a taxpayer to another person taxable
under this chapter as the latter's portion of the consideration due for
services furnished jointly by both, if the total amount has been
credited to and appears in the gross income reported for tax by the
former;
(4) The amount of cash discount actually taken by the purchaser or
customer;
(5) The amount of bad debts, as that term is used in 26 U.S.C. Sec.
166 of the federal internal revenue code, as amended ((or renumbered))
as of January 1, 2003, on which tax was previously paid under this
chapter;
(6) Amounts derived from business which the state is prohibited
from taxing under the Constitution of this state or the Constitution or
laws of the United States;
(7) Amounts derived from the distribution of water through an
irrigation system, for irrigation purposes;
(8) Until July 1, 2010, amounts derived from the transportation of
commodities from points of origin in this state to final destination
outside this state, or from points of origin outside this state to
final destination in this state, with respect to which the carrier
grants to the shipper the privilege of stopping the shipment in transit
at some point in this state for the purpose of storing, manufacturing,
milling, or other processing, and thereafter forwards the same
commodity, or its equivalent, in the same or converted form, under a
through freight rate from point of origin to final destination;
(9) Amounts derived from the transportation of commodities from
points of origin in the state to an export elevator, wharf, dock or
ship side on tidewater or its navigable tributaries to be forwarded,
without intervening transportation, by vessel, in their original form,
to interstate or foreign destinations. No deduction is allowed under
this subsection when the point of origin and the point of delivery to
the export elevator, wharf, dock, or ship side are located within the
corporate limits of the same city or town;
(10) Amounts derived from the transportation of agricultural
commodities, not including manufactured substances or articles, from
points of origin in the state to interim storage facilities in this
state for transshipment, without intervening transportation, to an
export elevator, wharf, dock, or ship side on tidewater or its
navigable tributaries to be forwarded, without intervening
transportation, by vessel, in their original form, to interstate or
foreign destinations. If agricultural commodities are transshipped
from interim storage facilities in this state to storage facilities at
a port on tidewater or its navigable tributaries, the same agricultural
commodity dealer must operate both the interim storage facilities and
the storage facilities at the port.
(a) The deduction under this subsection is available only when the
person claiming the deduction obtains a certificate from the
agricultural commodity dealer operating the interim storage facilities,
in a form and manner prescribed by the department, certifying that:
(i) More than ninety-six percent of all of the type of agricultural
commodity delivered by the person claiming the deduction under this
subsection and delivered by all other persons to the dealer's interim
storage facilities during the preceding calendar year was shipped by
vessel in original form to interstate or foreign destinations; and
(ii) Any of the agricultural commodity that is transshipped to
ports on tidewater or its navigable tributaries will be received at
storage facilities operated by the same agricultural commodity dealer
and will be shipped from such facilities, without intervening
transportation, by vessel, in their original form, to interstate or
foreign destinations.
(b) As used in this subsection, "agricultural commodity" has the
same meaning as agricultural product in RCW 82.04.213;
(11) Amounts derived from the production, sale, or transfer of
electrical energy for resale within or outside the state or for
consumption outside the state;
(12) Amounts derived from the distribution of water by a nonprofit
water association and used for capital improvements by that nonprofit
water association;
(13) Amounts paid by a sewerage collection business taxable under
RCW 82.16.020(1)(a) to a person taxable under chapter 82.04 RCW for the
treatment or disposal of sewage;
(14) Amounts derived from fees or charges imposed on persons for
transit services provided by a public transportation agency. For the
purposes of this subsection, "public transportation agency" means a
municipality, as defined in RCW 35.58.272, and urban public
transportation systems, as defined in RCW 47.04.082. Public
transportation agencies ((shall)) must spend an amount equal to the
reduction in tax provided by this tax deduction solely to adjust routes
to improve access for citizens using food banks and senior citizen
services or to extend or add new routes to assist low-income citizens
and seniors;
(15) Until July 1, 2010, amounts received from interstate
transportation. For purposes of this subsection, "interstate
transportation" means transporting persons or property between states
or between a state and a foreign country. "State" means a state of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, and any territory or possession of the United States.
NEW SECTION. Sec. 1003 A new section is added to chapter 82.16
RCW to read as follows:
(1) Persons taxable both within and without this state on the
business of transporting persons or property for hire must apportion to
this state that portion of gross income as provided in this section.
(2)(a) Except as otherwise provided in this section, gross income
must be apportioned to this state based on the ratio that revenue miles
of the person in this state during the tax period bear to the revenue
miles of the person everywhere during the tax period.
(b)(i) If both property and passengers are transported, a person
must determine the portion of gross income apportioned to this state by
first computing separate percentages as provided in (a) of this
subsection for property transported and for passengers transported.
(ii) Then separately divide gross income for each activity by the
total gross income from transporting persons and property for hire.
(iii) Then multiply the percentage for property transported as
determined under (a) of this subsection by the percentage of gross
income from transporting property as determined under (b)(ii) of this
subsection, and multiply the percentage for persons transported as
determined under (a) of this subsection by the percentage of gross
income from transporting persons as determined under (b)(ii) of this
subsection.
(iv) Then sum the results of both calculations in (b)(iii) of this
subsection and use this percentage to determine the portion of gross
income apportioned to this state from transporting persons and property
for hire.
(3) For persons that transport gas, oil, petroleum products, or
other products by pipeline, gross income must be apportioned to this
state based on the ratio that the total number of traffic units in this
state during the tax period bear to the total number of traffic units
everywhere during the tax period.
(4) For purposes of this section, the following definitions apply:
(a) "Revenue mile" means the transportation of one net ton of
property or one passenger, for the distance of one mile.
(b)(i) "Traffic unit" means the movement of one unit of product for
a distance of one mile.
(ii) For purposes of this subsection (4)(b), "one unit" means one
barrel consisting of forty-two United States gallons, except that for
natural gas and manufactured gas, "one unit" means one thousand cubic
feet of gas.
Sec. 1004 RCW 82.12.0254 and 2009 c 503 s 2 are each amended to
read as follows:
(1) The provisions of this chapter do not apply in respect to the
use of:
(a) Any airplane used primarily in (i) conducting interstate or
foreign commerce or (ii) providing intrastate air transportation by a
commuter air carrier as defined in RCW 82.08.0262;
(b) Any locomotive, railroad car, or watercraft used primarily in
conducting interstate or foreign commerce by transporting therein or
therewith property and persons for hire or used primarily in commercial
deep sea fishing operations outside the territorial waters of the
state;
(c) Tangible personal property that becomes a component part of any
such airplane, locomotive, railroad car, or watercraft in the course of
repairing, cleaning, altering, or improving the same; and
(d) Labor and services rendered in respect to such repairing,
cleaning, altering, or improving.
(2) The provisions of this chapter do not apply in respect to the
use by a nonresident of this state of any motor vehicle or trailer used
exclusively in transporting persons or property across the boundaries
of this state and in intrastate operations incidental thereto when such
motor vehicle or trailer is registered and licensed in a foreign state
and in respect to the use by a nonresident of this state of any motor
vehicle or trailer so registered and licensed and used within this
state for a period not exceeding fifteen consecutive days under such
rules as the department must adopt. However, under circumstances
determined to be justifiable by the department a second fifteen day
period may be authorized consecutive with the first fifteen day period;
and for the purposes of this exemption the term "nonresident" as used
herein includes a user who has one or more places of business in this
state as well as in one or more other states, but the exemption for
nonresidents applies only to those vehicles which are most frequently
dispatched, garaged, serviced, maintained, and operated from the user's
place of business in another state.
(3) The provisions of this chapter do not apply in respect to the
use of:
(a) Any motor vehicle or trailer, whether owned by the holder of a
carrier permit issued by the interstate commerce commission or its
successor agency ((of any motor vehicle or trailer whether owned by))
or leased with or without driver to the permit holder and used ((in
substantial part)) in the normal and ordinary course of the user's
business primarily for transporting therein persons or property for
hire across the boundaries of this state; ((and in respect to the use
of))
(b) Any motor vehicle or trailer while being operated under the
authority of a one-transit permit issued by the director of licensing
pursuant to RCW 46.16.160 and moving upon the highways from the point
of delivery in this state to a point outside this state; ((and in
respect to the use of))
(c) Tangible personal property ((which)) that becomes a component
part of any motor vehicle or trailer ((used by the holder of a carrier
permit issued by the interstate commerce commission or its successor
agency authorizing transportation by motor vehicle across the
boundaries of this state whether such motor vehicle or trailer is owned
by or leased with or without driver to the permit holder)) that is
exempt under (a) of this subsection, in the course of repairing,
cleaning, altering, or improving the same; ((also the use of)) and
(d) Labor and services rendered in respect to such repairing,
cleaning, altering, or improving any motor vehicle or trailer that is
exempt under (a) of this subsection.
Sec. 1101 RCW 82.45.010 and 2010 c ... s 206 (section 206 of this
act) are each amended to read as follows:
(1) As used in this chapter, the term "sale" has its ordinary
meaning and includes any conveyance, grant, assignment, quitclaim, or
transfer of the ownership of or title to real property, including
standing timber, or any estate or interest therein for a valuable
consideration, and any contract for such conveyance, grant, assignment,
quitclaim, or transfer, and any lease with an option to purchase real
property, including standing timber, or any estate or interest therein
or other contract under which possession of the property is given to
the purchaser, or any other person at the purchaser's direction, and
title to the property is retained by the vendor as security for the
payment of the purchase price. The term also includes the grant,
assignment, quitclaim, sale, or transfer of improvements constructed
upon leased land.
(2)(a) The term "sale" also includes the transfer or acquisition
within any twelve-month period of a controlling interest in any entity
with an interest in real property located in this state for a valuable
consideration.
(b) For the sole purpose of determining whether, pursuant to the
exercise of an option, a controlling interest was transferred or
acquired within a twelve-month period, the date that the option
agreement was executed is the date on which the transfer or acquisition
of the controlling interest is deemed to occur. For all other purposes
under this chapter, the date upon which the option is exercised is the
date of the transfer or acquisition of the controlling interest.
(c) For purposes of this subsection, all acquisitions of persons
acting in concert must be aggregated for purposes of determining
whether a transfer or acquisition of a controlling interest has taken
place. The department must adopt standards by rule to determine when
persons are acting in concert. In adopting a rule for this purpose,
the department must consider the following:
(i) Persons must be treated as acting in concert when they have a
relationship with each other such that one person influences or
controls the actions of another through common ownership; and
(ii) When persons are not commonly owned or controlled, they must
be treated as acting in concert only when the unity with which the
purchasers have negotiated and will consummate the transfer of
ownership interests supports a finding that they are acting as a single
entity. If the acquisitions are completely independent, with each
purchaser buying without regard to the identity of the other
purchasers, then the acquisitions are considered separate acquisitions.
(3) The term "sale" does not include:
(a) A transfer by gift, devise, or inheritance.
(b) A transfer of any leasehold interest other than of the type
mentioned above.
(c) A cancellation or forfeiture of a vendee's interest in a
contract for the sale of real property, whether or not such contract
contains a forfeiture clause, or deed in lieu of foreclosure of a
mortgage.
(d) The partition of property by tenants in common by agreement or
as the result of a court decree.
(e) The assignment of property or interest in property from one
spouse or one domestic partner to the other spouse or other domestic
partner in accordance with the terms of a decree of dissolution of
marriage or state registered domestic partnership or in fulfillment of
a property settlement agreement.
(f) The assignment or other transfer of a vendor's interest in a
contract for the sale of real property, even though accompanied by a
conveyance of the vendor's interest in the real property involved.
(g) Transfers by appropriation or decree in condemnation
proceedings brought by the United States, the state or any political
subdivision thereof, or a municipal corporation.
(h) A mortgage or other transfer of an interest in real property
merely to secure a debt, or the assignment thereof.
(i) ((Any)) A transfer or conveyance made (i) to the beneficiary of
a deed of trust pursuant to a trustee's sale in the nonjudicial
foreclosure of a deed of trust ((or)); (ii) to the mortgagee,
beneficiary of the deed of trust, or lienholder pursuant to an order of
sale by the court in the judicial foreclosure of any mortgage, deed of
trust, or lien ((foreclosure proceeding or upon execution of a
judgment, or)); (iii) to the mortgagee by the mortgagor or to the
beneficiary of a deed of trust by the grantor pursuant to deed in lieu
of foreclosure to satisfy a mortgage or deed of trust; or (iv) to the
judgment creditor pursuant to a writ of execution to enforce a
judgment.
(j) A conveyance to the federal housing administration or veterans
administration by an authorized mortgagee made pursuant to a contract
of insurance or guaranty with the federal housing administration or
veterans administration.
(k) A transfer in compliance with the terms of any lease or
contract upon which the tax as imposed by this chapter has been paid or
where the lease or contract was entered into prior to the date this tax
was first imposed.
(l) The sale of any grave or lot in an established cemetery.
(m) A sale by the United States, this state or any political
subdivision thereof, or a municipal corporation of this state.
(n) A sale to a regional transit authority or public corporation
under RCW 81.112.320 under a sale/leaseback agreement under RCW
81.112.300.
(o) A transfer of real property, however effected, if it consists
of a mere change in identity or form of ownership of an entity where
there is no change in the beneficial ownership. These include
transfers to a corporation or partnership which is wholly owned by the
transferor and/or the transferor's spouse or domestic partner or
children of the transferor or the transferor's spouse or domestic
partner. However, if thereafter such transferee corporation or
partnership voluntarily transfers such real property, or such
transferor, spouse or domestic partner, or children of the transferor
or the transferor's spouse or domestic partner voluntarily transfer
stock in the transferee corporation or interest in the transferee
partnership capital, as the case may be, to other than (i) the
transferor and/or the transferor's spouse or domestic partner or
children of the transferor or the transferor's spouse or domestic
partner, (ii) a trust having the transferor and/or the transferor's
spouse or domestic partner or children of the transferor or the
transferor's spouse or domestic partner as the only beneficiaries at
the time of the transfer to the trust, or (iii) a corporation or
partnership wholly owned by the original transferor and/or the
transferor's spouse or domestic partner or children of the transferor
or the transferor's spouse or domestic partner, within three years of
the original transfer to which this exemption applies, and the tax on
the subsequent transfer has not been paid within sixty days of becoming
due, excise taxes become due and payable on the original transfer as
otherwise provided by law.
(p)(i) A transfer that for federal income tax purposes does not
involve the recognition of gain or loss for entity formation,
liquidation or dissolution, and reorganization, including but not
limited to nonrecognition of gain or loss because of application of 26
U.S.C. Sec. 332, 337, 351, 368(a)(1), 721, or 731 of the internal
revenue code of 1986, as amended.
(ii) However, the transfer described in (p)(i) of this subsection
cannot be preceded or followed within a twelve-month period by another
transfer or series of transfers, that, when combined with the otherwise
exempt transfer or transfers described in (p)(i) of this subsection,
results in the transfer of a controlling interest in the entity for
valuable consideration, and in which one or more persons previously
holding a controlling interest in the entity receive cash or property
in exchange for any interest the person or persons acting in concert
hold in the entity. This subsection (3)(p)(ii) does not apply to that
part of the transfer involving property received that is the real
property interest that the person or persons originally contributed to
the entity or when one or more persons who did not contribute real
property or belong to the entity at a time when real property was
purchased receive cash or personal property in exchange for that person
or persons' interest in the entity. The real estate excise tax under
this subsection (3)(p)(ii) is imposed upon the person or persons who
previously held a controlling interest in the entity.
(q) A qualified sale of a manufactured/mobile home community, as
defined in RCW 59.20.030, that takes place on or after June 12, 2008,
but before December 31, 2018.
Sec. 1102 RCW 82.45.080 and 1980 c 154 s 3 are each amended to
read as follows:
(1) The tax levied under this chapter ((shall be)) is the
obligation of the seller and the department ((of revenue)) may, at the
department's option, enforce the obligation through an action of debt
against the seller or the department may proceed in the manner
prescribed for the foreclosure of mortgages ((and resort to)). The
department's use of one course of enforcement ((shall)) is not ((be))
an election not to pursue the other.
(2) For purposes of this section and notwithstanding any other
provisions of law, in a sale involving a judicial or nonjudicial
foreclosure or enforcement of a judgment, the seller is the:
(a) Beneficiary of a deed of trust in any transfer or conveyance to
any party other than such beneficiary pursuant to a trustee's sale in
the nonjudicial foreclosure of the deed of trust;
(b) Mortgagee, beneficiary of a deed of trust, or lienholder in any
transfer or conveyance to any party other than such mortgagee,
beneficiary, or lienholder pursuant to an order of sale by the court in
the judicial foreclosure of any mortgage, deed of trust, or lien; and
(c) Judgment creditor in any transfer or conveyance to any party
other than such creditor pursuant to a writ of execution to enforce a
judgment.
Sec. 1201 RCW 82.32.145 and 1995 c 318 s 2 are each amended to
read as follows:
(1) ((Upon termination, dissolution, or abandonment of a corporate
or limited liability company business, any officer, member, manager, or
other person having control or supervision of retail sales tax funds
collected and held in trust under RCW 82.08.050, or who is charged with
the responsibility for the filing of returns or the payment of retail
sales tax funds collected and held in trust under RCW 82.08.050, shall
be personally liable for any unpaid taxes and interest and penalties on
those taxes, if such officer or other person wilfully fails to pay or
to cause to be paid any taxes due from the corporation pursuant to
chapter 82.08 RCW. For the purposes of this section, any retail sales
taxes that have been paid but not collected shall be deductible from
the retail sales taxes collected but not paid.)) Whenever the department has issued a
warrant under RCW 82.32.210 for the collection of unpaid taxes from a
limited liability business entity and that business entity has been
terminated, dissolved, or abandoned, or is insolvent, the department
may pursue collection of the entity's unpaid taxes, including penalties
and interest on those taxes, against any or all of the responsible
individuals. For purposes of this subsection, "insolvent" means the
condition that results when the sum of the entity's debts exceeds the
fair market value of its assets. The department may presume that an
entity is insolvent if the entity refuses to disclose to the department
the nature of its assets and liabilities.
For purposes of this subsection "wilfully fails to pay or to cause
to be paid" means that the failure was the result of an intentional,
conscious, and voluntary course of action.
(2) The officer, member or manager, or other person shall be liable
only for taxes collected which
(2) Personal liability under this section may be imposed for state
and local sales and use taxes, state business and occupation taxes, and
any other state and local taxes collected by the department in respect
to which the provisions of this chapter apply, regardless of whether
the tax is denominated a tax, fee, charge, or some other term.
(3)(a) For a responsible individual who is the current or a former
chief executive or chief financial officer, liability under this
section applies regardless of fault or whether the individual was or
should have been aware of the unpaid tax liability of the limited
liability business entity.
(b) For any other responsible individual, liability under this
section applies only if he or she willfully fails to pay or to cause to
be paid to the department the taxes due from the limited liability
business entity.
(4)(a) Except as provided in this subsection (4)(a), a responsible
individual who is the current or a former chief executive or chief
financial officer is liable under this section only for tax liability
accrued during the period that he or she was the chief executive or
chief financial officer. However, if the responsible individual had
the responsibility or duty to remit payment of the limited liability
business entity's taxes to the department during any period of time
that the person was not the chief executive or chief financial officer,
that individual is also liable for tax liability that became due during
the period that he or she had the duty to remit payment of the limited
liability business entity's taxes to the department but was not the
chief executive or chief financial officer.
(b) All other responsible individuals are liable under this section
only for tax liability that became due during the period he or she had
the ((control, supervision,)) responsibility((,)) or duty to ((act for
the corporation described in subsection (1) of this section, plus
interest and penalties on those taxes.)) remit payment of the limited liability business entity's
taxes to the department.
(3)
(5) Persons ((liable under)) described in subsection (((1))) (3)(b)
of this section are exempt from liability under this section in
situations where nonpayment of the ((retail sales tax funds held in
trust)) limited liability business entity's taxes is due to reasons
beyond their control as determined by the department by rule.
(((4))) (6) Any person having been issued a notice of assessment
under this section is entitled to the appeal procedures under RCW
82.32.160, 82.32.170, 82.32.180, 82.32.190, and 82.32.200.
(((5) This section applies only in situations where the department
has determined that there is no reasonable means of collecting the
retail sales tax funds held in trust directly from the corporation.)) (7) This section does not relieve the ((
(6)corporation or))
limited liability ((company)) business entity of ((other tax
liabilities)) its tax liability or otherwise impair other tax
collection remedies afforded by law.
(((7))) (8) Collection authority and procedures prescribed in this
chapter apply to collections under this section.
(9) The definitions in this subsection apply throughout this
section unless the context clearly requires otherwise.
(a) "Chief executive" means: The president of a corporation; or
for other entities or organizations other than corporations or if the
corporation does not have a president as one of its officers, the
highest ranking executive manager or administrator in charge of the
management of the company or organization.
(b) "Chief financial officer" means: The treasurer of a
corporation; or for entities or organizations other than corporations
or if a corporation does not have a treasurer as one of its officers,
the highest senior manager who is responsible for overseeing the
financial activities of the entire company or organization.
(c) "Limited liability business entity" means a type of business
entity that generally shields its owners from personal liability for
the debts, obligations, and liabilities of the entity, or a business
entity that is managed or owned in whole or in part by an entity that
generally shields its owners from personal liability for the debts,
obligations, and liabilities of the entity. Limited liability business
entities include corporations, limited liability companies, limited
liability partnerships, trusts, general partnerships and joint ventures
in which one or more of the partners or parties are also limited
liability business entities, and limited partnerships in which one or
more of the general partners are also limited liability business
entities.
(d) "Manager" has the same meaning as in RCW 25.15.005.
(e) "Member" has the same meaning as in RCW 25.15.005, except that
the term only includes members of member-managed limited liability
companies.
(f) "Officer" means any officer or assistant officer of a
corporation, including the president, vice-president, secretary, and
treasurer.
(g)(i) "Responsible individual" includes any current or former
officer, manager, member, partner, or trustee of a limited liability
business entity with an unpaid tax warrant issued by the department.
(ii) "Responsible individual" also includes any current or former
employee or other individual, but only if the individual had the
responsibility or duty to remit payment of the limited liability
business entity's unpaid tax liability reflected in a tax warrant
issued by the department.
(iii) Whenever any taxpayer has one or more limited liability
business entities as a member, manager, or partner, "responsible
individual" also includes any current and former officers, members, or
managers of the limited liability business entity or entities or of any
other limited liability business entity involved directly in the
management of the taxpayer. For purposes of this subsection
(9)(g)(iii), "taxpayer" means a limited liability business entity with
an unpaid tax warrant issued against it by the department.
(h) "Willfully fails to pay or to cause to be paid" means that the
failure was the result of an intentional, conscious, and voluntary
course of action.
NEW SECTION. Sec. 1301 RCW 82.04.44525 (Credit -- New employment
for international service activities in eligible areas -- Designation of
census tracts for eligibility -- Records -- Tax due upon ineligibility--Interest assessment -- Information from employment security department)
and 2009 c 535 s 1104, 2008 c 81 s 9, & 1998 c 313 s 2 are each
repealed.
Sec. 1401 RCW 82.08.0293 and 2009 c 483 s 2 are each amended to
read as follows:
(1) The tax levied by RCW 82.08.020 ((shall)) does not apply to
sales of food and food ingredients. "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:
(a) "Alcoholic beverages," which means beverages that are suitable
for human consumption and contain one-half of one percent or more of
alcohol by volume; and
(b) "Tobacco," which means cigarettes, cigars, chewing or pipe
tobacco, or any other item that contains tobacco.
(2) The exemption of "food and food ingredients" provided for in
subsection (1) of this section ((shall)) does not apply to prepared
food, soft drinks, candy, or dietary supplements.
(a) "Prepared food" means:
(i) Food sold in a heated state or heated by the seller;
(ii) 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; or
(iii) Two or more food ingredients mixed or combined by the seller
for sale as a single item, except:
(A) Food that is only cut, repackaged, or pasteurized by the
seller; or
(B) Raw eggs, fish, meat, poultry, and foods containing these raw
animal foods requiring cooking by the consumer as recommended by the
federal food and drug administration in chapter 3, part 401.11 of The
Food Code, published by the food and drug administration, as amended or
renumbered as of January 1, 2003, so as to prevent foodborne illness.
(b) "Prepared food" does not include the following food or food
ingredients, if the food or food ingredients are sold without eating
utensils provided by the seller:
(i) Food sold by a seller whose proper primary North American
industry classification system (NAICS) classification is manufacturing
in sector 311, except subsector 3118 (bakeries), as provided in the
"North American industry classification system -- United States, 2002";
or
(ii) Food sold in an unheated state by weight or volume as a single
item((; or)).
(iii) Bakery items. The term "bakery items" includes bread, rolls,
buns, biscuits, bagels, croissants, pastries, donuts, Danish, cakes,
tortes, pies, tarts, muffins, bars, cookies, or tortillas
(c) "Soft drinks" 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.
(d) "Dietary supplement" means any product, other than tobacco,
intended to supplement the diet that:
(i) Contains one or more of the following dietary ingredients:
(A) A vitamin;
(B) A mineral;
(C) An herb or other botanical;
(D) An amino acid;
(E) A dietary substance for use by humans to supplement the diet by
increasing the total dietary intake; or
(F) A concentrate, metabolite, constituent, extract, or combination
of any ingredient described in this subsection;
(ii) Is intended for ingestion in tablet, capsule, powder, softgel,
gelcap, or liquid form, or if not intended for ingestion in such 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
(iii) Is required to be labeled as a dietary supplement,
identifiable by the "supplement facts" box found on the label as
required pursuant to 21 C.F.R. Sec. 101.36, as amended or renumbered as
of January 1, 2003.
(e) "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" does not include any preparation containing flour and
does not require refrigeration.
(3) Notwithstanding anything in this section to the contrary, the
exemption of "food and food ingredients" provided in this section shall
apply to food and food ingredients that are furnished, prepared, or
served as meals:
(a) Under a state administered nutrition program for the aged as
provided for in the older Americans act (P.L. 95-478 Title III) and RCW
74.38.040(6);
(b) That are provided to senior citizens, individuals with
disabilities, or low-income persons by a not-for-profit organization
organized under chapter 24.03 or 24.12 RCW; or
(c) That are provided to residents, sixty-two years of age or
older, of a qualified low-income senior housing facility by the lessor
or operator of the facility. The sale of a meal that is billed to both
spouses of a marital community or both domestic partners of a domestic
partnership meets the age requirement in this subsection (3)(c) if at
least one of the spouses or domestic partners is at least sixty-two
years of age. For purposes of this subsection, "qualified low-income
senior housing facility" means a facility:
(i) That meets the definition of a qualified low-income housing
project under ((Title)) 26 U.S.C. Sec. 42 of the federal internal
revenue code, as existing on August 1, 2009;
(ii) That has been partially funded under ((Title)) 42 U.S.C. Sec.
1485 ((of the federal internal revenue code)); and
(iii) For which the lessor or operator has at any time been
entitled to claim a federal income tax credit under ((Title)) 26 U.S.C.
Sec. 42 of the federal internal revenue code.
(4)(a) Subsection (1) of this section notwithstanding, the retail
sale of food and food ingredients is subject to sales tax under RCW
82.08.020 if the food and food ingredients are sold through a vending
machine, and in this case the selling price for purposes of RCW
82.08.020 is fifty-seven percent of the gross receipts.
(b) This subsection (4) does not apply to hot prepared food and
food ingredients, other than food and food ingredients which are heated
after they have been dispensed from the vending machine.
(c) For tax collected under this subsection (4), the requirements
that the tax be collected from the buyer and that the amount of tax be
stated as a separate item are waived.
Sec. 1402 RCW 82.12.0293 and 2009 c 483 s 4 are each amended to
read as follows:
(1) The provisions of this chapter ((shall)) do not apply in
respect to the use of food and food ingredients for human consumption.
"Food and food ingredients" has the same meaning as in RCW 82.08.0293.
(2) The exemption of "food and food ingredients" provided for in
subsection (1) of this section ((shall)) does not apply to prepared
food, soft drinks, candy, or dietary supplements. "Prepared food,"
"soft drinks," ((and)) "dietary supplements," and "candy" have the same
meanings as in RCW 82.08.0293.
(3) Notwithstanding anything in this section to the contrary, the
exemption of "food and food ingredients" provided in this section
((shall)) apply to food and food ingredients which are furnished,
prepared, or served as meals:
(a) Under a state administered nutrition program for the aged as
provided for in the older Americans act (P.L. 95-478 Title III) and RCW
74.38.040(6);
(b) Which are provided to senior citizens, individuals with
disabilities, or low-income persons by a not-for-profit organization
organized under chapter 24.03 or 24.12 RCW; or
(c) That are provided to residents, sixty-two years of age or
older, of a qualified low-income senior housing facility by the lessor
or operator of the facility. The sale of a meal that is billed to both
spouses of a marital community or both domestic partners of a domestic
partnership meets the age requirement in this subsection (3)(c) if at
least one of the spouses or domestic partners is at least sixty-two
years of age. For purposes of this subsection, "qualified low-income
senior housing facility" has the same meaning as in RCW 82.08.0293.
Sec. 1501 RCW 82.04.050 and 2009 c 563 s 301 and 2009 c 535 s 301
are each reenacted and amended to read as follows:
(1) "Sale at retail" or "retail sale" means every sale of tangible
personal property (including articles produced, fabricated, or
imprinted) to all persons irrespective of the nature of their business
and including, among others, without limiting the scope hereof, persons
who install, repair, clean, alter, improve, construct, or decorate real
or personal property of or for consumers other than a sale to a person
who presents a seller's permit or uniform exemption certificate in
conformity with RCW 82.04.470 and who:
(a) Purchases for the purpose of resale as tangible personal
property in the regular course of business without intervening use by
such person, but a purchase for the purpose of resale by a regional
transit authority under RCW 81.112.300 is not a sale for resale; or
(b) Installs, repairs, cleans, alters, imprints, improves,
constructs, or decorates real or personal property of or for consumers,
if such tangible personal property becomes an ingredient or component
of such real or personal property without intervening use by such
person; or
(c) Purchases for the purpose of consuming the property purchased
in producing for sale a new article of tangible personal property or
substance, of which such property becomes an ingredient or component or
is a chemical used in processing, when the primary purpose of such
chemical is to create a chemical reaction directly through contact with
an ingredient of a new article being produced for sale; or
(d) Purchases for the purpose of consuming the property purchased
in producing ferrosilicon which is subsequently used in producing
magnesium for sale, if the primary purpose of such property is to
create a chemical reaction directly through contact with an ingredient
of ferrosilicon; or
(e) Purchases for the purpose of providing the property to
consumers as part of competitive telephone service, as defined in RCW
82.04.065. The term ((shall)) includes every sale of tangible personal
property which is used or consumed or to be used or consumed in the
performance of any activity classified as a "sale at retail" or "retail
sale" even though such property is resold or utilized as provided in
(a), (b), (c), (d), or (e) of this subsection following such use. The
term also means every sale of tangible personal property to persons
engaged in any business which is taxable under RCW 82.04.280 (2) and
(7), 82.04.290, and 82.04.2908; or
(f) Purchases for the purpose of satisfying the person's
obligations under an extended warranty as defined in subsection (7) of
this section, if such tangible personal property replaces or becomes an
ingredient or component of property covered by the extended warranty
without intervening use by such person.
(2) The term "sale at retail" or "retail sale" includes the sale of
or charge made for tangible personal property consumed and/or for labor
and services rendered in respect to the following:
(a) The installing, repairing, cleaning, altering, imprinting, or
improving of tangible personal property of or for consumers, including
charges made for the mere use of facilities in respect thereto, but
excluding charges made for the use of self-service laundry facilities,
and also excluding sales of laundry service to nonprofit health care
facilities, and excluding services rendered in respect to live animals,
birds and insects;
(b) The constructing, repairing, decorating, or improving of new or
existing buildings or other structures under, upon, or above real
property of or for consumers, including the installing or attaching of
any article of tangible personal property therein or thereto, whether
or not such personal property becomes a part of the realty by virtue of
installation, and ((shall)) also includes the sale of services or
charges made for the clearing of land and the moving of earth excepting
the mere leveling of land used in commercial farming or agriculture;
(c) The constructing, repairing, or improving of any structure
upon, above, or under any real property owned by an owner who conveys
the property by title, possession, or any other means to the person
performing such construction, repair, or improvement for the purpose of
performing such construction, repair, or improvement and the property
is then reconveyed by title, possession, or any other means to the
original owner;
(d) The cleaning, fumigating, razing, or moving of existing
buildings or structures, but may not include the charge made for
janitorial services; and for purposes of this section the term
"janitorial services" ((shall)) means those cleaning and caretaking
services ordinarily performed by commercial janitor service businesses
including, but not limited to, wall and window washing, floor cleaning
and waxing, and the cleaning in place of rugs, drapes and upholstery.
The term "janitorial services" does not include painting, papering,
repairing, furnace or septic tank cleaning, snow removal or
sandblasting;
(e) Automobile towing and similar automotive transportation
services, but not in respect to those required to report and pay taxes
under chapter 82.16 RCW;
(f) The furnishing of lodging and all other services by a hotel,
rooming house, tourist court, motel, trailer camp, and the granting of
any similar license to use real property, as distinguished from the
renting or leasing of real property, and it is presumed that the
occupancy of real property for a continuous period of one month or more
constitutes a rental or lease of real property and not a mere license
to use or enjoy the same. For the purposes of this subsection, it
shall be presumed that the sale of and charge made for the furnishing
of lodging for a continuous period of one month or more to a person is
a rental or lease of real property and not a mere license to enjoy the
same;
(g) The installing, repairing, altering, or improving of digital
goods for consumers;
(h) Persons taxable under (a), (b), (c), (d), (e), (f), and (g) of
this subsection when such sales or charges are for property, labor and
services which are used or consumed in whole or in part by such persons
in the performance of any activity defined as a "sale at retail" or
"retail sale" even though such property, labor and services may be
resold after such use or consumption. Nothing contained in this
subsection ((shall)) may be construed to modify subsection (1) of this
section and nothing contained in subsection (1) of this section may be
construed to modify this subsection.
(3) The term "sale at retail" or "retail sale" includes the sale of
or charge made for personal, business, or professional services
including amounts designated as interest, rents, fees, admission, and
other service emoluments however designated, received by persons
engaging in the following business activities:
(a) Amusement and recreation services including but not limited to
golf, pool, billiards, skating, bowling, ski lifts and tows, day trips
for sightseeing purposes, and others, when provided to consumers;
(b) Abstract, title insurance, and escrow services;
(c) Credit bureau services;
(d) Automobile parking and storage garage services;
(e) Landscape maintenance and horticultural services but excluding
(i) horticultural services provided to farmers and (ii) pruning,
trimming, repairing, removing, and clearing of trees and brush near
electric transmission or distribution lines or equipment, if performed
by or at the direction of an electric utility;
(f) Service charges associated with tickets to professional
sporting events; and
(g) The following personal services: Physical fitness services,
tanning salon services, tattoo parlor services, steam bath services,
turkish bath services, escort services, and dating services.
(4)(a) The term also includes:
(i) The renting or leasing of tangible personal property to
consumers; and
(ii) Providing tangible personal property along with an operator
for a fixed or indeterminate period of time. A consideration of this
is that the operator is necessary for the tangible personal property to
perform as designed. For the purpose of this subsection (4)(a)(ii), an
operator must do more than maintain, inspect, or set up the tangible
personal property.
(b) The term does not include the renting or leasing of tangible
personal property where the lease or rental is for the purpose of
sublease or subrent.
(5) The term also includes the providing of "competitive telephone
service," "telecommunications service," or "ancillary services," as
those terms are defined in RCW 82.04.065, to consumers.
(6)(a) The term also includes the sale of prewritten computer
software other than a sale to a person who presents a seller's permit
or uniform exemption certificate in conformity with RCW 82.04.470,
regardless of the method of delivery to the end user. For purposes of
this subsection (6)(a), the sale of prewritten computer software
includes the sale of or charge made for a key or an enabling or
activation code, where the key or code is required to activate
prewritten computer software and put the software into use. There is
no separate sale of the key or code from the prewritten computer
software, regardless of how the sale may be characterized by the vendor
or by the purchaser.
((The term "retail sale" does not include the sale of or charge
made for:))
(i) Custom software; or
(ii) The customization of prewritten computer software.
(b) The term also includes the charge made to consumers for the
right to access and use prewritten computer software, where possession
of the software is maintained by the seller or a third party,
regardless of whether the charge for the service is on a per use, per
user, per license, subscription, or some other basis.
(7)(a) The term also includes the sale of or charge made for
custom software and the customization of prewritten computer software,
other than a sale to a person who presents a resale certificate under
RCW 82.04.470, regardless of the method of delivery to the consumer.
(b) The term also includes the charge made to consumers for the
right to access and use custom software and customized prewritten
computer software, where possession of the software is maintained by
the seller or a third party.
(8) The term also includes the sale of or charge made for an
extended warranty to a consumer. For purposes of this subsection,
"extended warranty" means an agreement for a specified duration to
perform the replacement or repair of tangible personal property at no
additional charge or a reduced charge for tangible personal property,
labor, or both, or to provide indemnification for the replacement or
repair of tangible personal property, based on the occurrence of
specified events. The term "extended warranty" does not include an
agreement, otherwise meeting the definition of extended warranty in
this subsection, if no separate charge is made for the agreement and
the value of the agreement is included in the sales price of the
tangible personal property covered by the agreement. For purposes of
this subsection, "sales price" has the same meaning as in RCW
82.08.010.
(((8))) (9)(a) The term also includes the following sales to
consumers of digital goods, digital codes, and digital automated
services:
(i) Sales in which the seller has granted the purchaser the right
of permanent use;
(ii) Sales in which the seller has granted the purchaser a right of
use that is less than permanent;
(iii) Sales in which the purchaser is not obligated to make
continued payment as a condition of the sale; and
(iv) Sales in which the purchaser is obligated to make continued
payment as a condition of the sale.
(b) A retail sale of digital goods, digital codes, or digital
automated services under this subsection (((8))) (9) includes any
services provided by the seller exclusively in connection with the
digital goods, digital codes, or digital automated services, whether or
not a separate charge is made for such services.
(c) For purposes of this subsection, "permanent" means perpetual or
for an indefinite or unspecified length of time. A right of permanent
use is presumed to have been granted unless the agreement between the
seller and the purchaser specifies or the circumstances surrounding the
transaction suggest or indicate that the right to use terminates on the
occurrence of a condition subsequent.
(((9))) (10) The term does not include the sale of or charge made
for labor and services rendered in respect to the building, repairing,
or improving of any street, place, road, highway, easement, right-of-way, mass public transportation terminal or parking facility, bridge,
tunnel, or trestle which is owned by a municipal corporation or
political subdivision of the state or by the United States and which is
used or to be used primarily for foot or vehicular traffic including
mass transportation vehicles of any kind.
(((10))) (11) The term also does not include sales of chemical
sprays or washes to persons for the purpose of postharvest treatment of
fruit for the prevention of scald, fungus, mold, or decay, nor does it
include sales of feed, seed, seedlings, fertilizer, agents for enhanced
pollination including insects such as bees, and spray materials to:
(a) Persons who participate in the federal conservation reserve
program, the environmental quality incentives program, the wetlands
reserve program, and the wildlife habitat incentives program, or their
successors administered by the United States department of agriculture;
(b) farmers for the purpose of producing for sale any agricultural
product; and (c) farmers acting under cooperative habitat development
or access contracts with an organization exempt from federal income tax
under ((Title)) 26 U.S.C. Sec. 501(c)(3) of the federal internal
revenue code or the Washington state department of fish and wildlife to
produce or improve wildlife habitat on land that the farmer owns or
leases.
(((11))) (12) The term does not include the sale of or charge made
for labor and services rendered in respect to the constructing,
repairing, decorating, or improving of new or existing buildings or
other structures under, upon, or above real property of or for the
United States, any instrumentality thereof, or a county or city housing
authority created pursuant to chapter 35.82 RCW, including the
installing, or attaching of any article of tangible personal property
therein or thereto, whether or not such personal property becomes a
part of the realty by virtue of installation. Nor does the term
include the sale of services or charges made for the clearing of land
and the moving of earth of or for the United States, any
instrumentality thereof, or a county or city housing authority. Nor
does the term include the sale of services or charges made for cleaning
up for the United States, or its instrumentalities, radioactive waste
and other by-products of weapons production and nuclear research and
development.
(((12))) (13) The term does not include the sale of or charge made
for labor, services, or tangible personal property pursuant to
agreements providing maintenance services for bus, rail, or rail fixed
guideway equipment when a regional transit authority is the recipient
of the labor, services, or tangible personal property, and a transit
agency, as defined in RCW 81.104.015, performs the labor or services.
Sec. 1502 RCW 82.04.060 and 2009 c 535 s 403 are each amended to
read as follows:
"Sale at wholesale" or "wholesale sale" means:
(1) Any sale, which is not a sale at retail, of:
(a) Tangible personal property;
(b) Services defined as a retail sale in RCW 82.04.050(2) (a) or
(g);
(c) Amusement or recreation services as defined in RCW
82.04.050(3)(a);
(d) Prewritten computer software;
(e) Services described in RCW 82.04.050 (6)(b) or (7);
(f) Extended warranties as defined in RCW 82.04.050(7);
(g) Competitive telephone service, ancillary services, or
telecommunications service as those terms are defined in RCW 82.04.065;
or
(h) Digital goods, digital codes, or digital automated services;
and
(2) Any charge made for labor and services rendered for persons who
are not consumers, in respect to real or personal property, if such
charge is expressly defined as a retail sale by RCW 82.04.050 when
rendered to or for consumers. For the purposes of this subsection (2),
"real or personal property" does not include any natural products named
in RCW 82.04.100.
Sec. 1503 RCW 82.04.190 and 2009 c 535 s 302 are each amended to
read as follows:
"Consumer" means the following:
(1) Any person who purchases, acquires, owns, holds, or uses any
article of tangible personal property irrespective of the nature of the
person's business and including, among others, without limiting the
scope hereof, persons who install, repair, clean, alter, improve,
construct, or decorate real or personal property of or for consumers
other than for the purpose (a) of resale as tangible personal property
in the regular course of business or (b) of incorporating such property
as an ingredient or component of real or personal property when
installing, repairing, cleaning, altering, imprinting, improving,
constructing, or decorating such real or personal property of or for
consumers or (c) of consuming such property in producing for sale a new
article of tangible personal property or a new substance, of which such
property becomes an ingredient or component or as a chemical used in
processing, when the primary purpose of such chemical is to create a
chemical reaction directly through contact with an ingredient of a new
article being produced for sale or (d) of consuming the property
purchased in producing ferrosilicon which is subsequently used in
producing magnesium for sale, if the primary purpose of such property
is to create a chemical reaction directly through contact with an
ingredient of ferrosilicon or (e) of satisfying the person's
obligations under an extended warranty as defined in RCW 82.04.050(7),
if such tangible personal property replaces or becomes an ingredient or
component of property covered by the extended warranty without
intervening use by such person;
(2)(a) Any person engaged in any business activity taxable under
RCW 82.04.290 or 82.04.2908; (b) any person who purchases, acquires, or
uses any competitive telephone service, ancillary services, or
telecommunications service as those terms are defined in RCW 82.04.065,
other than for resale in the regular course of business; (c) any person
who purchases, acquires, or uses any service defined in RCW
82.04.050(2) (a) or (g), other than for resale in the regular course of
business or for the purpose of satisfying the person's obligations
under an extended warranty as defined in RCW 82.04.050(7); (d) any
person who purchases, acquires, or uses any amusement and recreation
service defined in RCW 82.04.050(3)(a), other than for resale in the
regular course of business; (e) any person who purchases or acquires an
extended warranty as defined in RCW 82.04.050(7) other than for resale
in the regular course of business; and (f) any person who is an end
user of software. For purposes of this subsection (2)(f) and RCW
82.04.050(6), a person who purchases or otherwise acquires prewritten
computer software, who provides services described in RCW
82.04.050(6)(b) and who will charge consumers for the right to access
and use the prewritten computer software, is not an end user of the
prewritten computer software;
(3) Any person engaged in the business of contracting for the
building, repairing or improving of any street, place, road, highway,
easement, right-of-way, mass public transportation terminal or parking
facility, bridge, tunnel, or trestle which is owned by a municipal
corporation or political subdivision of the state of Washington or by
the United States and which is used or to be used primarily for foot or
vehicular traffic including mass transportation vehicles of any kind as
defined in RCW 82.04.280, in respect to tangible personal property when
such person incorporates such property as an ingredient or component of
such publicly owned street, place, road, highway, easement,
right-of-way, mass public transportation terminal or parking facility,
bridge, tunnel, or trestle by installing, placing or spreading the
property in or upon the right-of-way of such street, place, road,
highway, easement, bridge, tunnel, or trestle or in or upon the site of
such mass public transportation terminal or parking facility;
(4) Any person who is an owner, lessee or has the right of
possession to or an easement in real property which is being
constructed, repaired, decorated, improved, or otherwise altered by a
person engaged in business, excluding only (a) municipal corporations
or political subdivisions of the state in respect to labor and services
rendered to their real property which is used or held for public road
purposes, and (b) the United States, instrumentalities thereof, and
county and city housing authorities created pursuant to chapter 35.82
RCW in respect to labor and services rendered to their real property.
Nothing contained in this or any other subsection of this definition
shall be construed to modify any other definition of "consumer";
(5) Any person who is an owner, lessee, or has the right of
possession to personal property which is being constructed, repaired,
improved, cleaned, imprinted, or otherwise altered by a person engaged
in business;
(6) Any person engaged in the business of constructing, repairing,
decorating, or improving new or existing buildings or other structures
under, upon, or above real property of or for the United States, any
instrumentality thereof, or a county or city housing authority created
pursuant to chapter 35.82 RCW, including the installing or attaching of
any article of tangible personal property therein or thereto, whether
or not such personal property becomes a part of the realty by virtue of
installation; also, any person engaged in the business of clearing land
and moving earth of or for the United States, any instrumentality
thereof, or a county or city housing authority created pursuant to
chapter 35.82 RCW. Any such person ((shall be)) is a consumer within
the meaning of this subsection in respect to tangible personal property
incorporated into, installed in, or attached to such building or other
structure by such person, except that consumer does not include any
person engaged in the business of constructing, repairing, decorating,
or improving new or existing buildings or other structures under, upon,
or above real property of or for the United States, or any
instrumentality thereof, if the investment project would qualify for
sales and use tax deferral under chapter 82.63 RCW if undertaken by a
private entity;
(7) Any person who is a lessor of machinery and equipment, the
rental of which is exempt from the tax imposed by RCW 82.08.020 under
RCW 82.08.02565, with respect to the sale of or charge made for
tangible personal property consumed in respect to repairing the
machinery and equipment, if the tangible personal property has a useful
life of less than one year. Nothing contained in this or any other
subsection of this section ((shall)) may be construed to modify any
other definition of "consumer";
(8) Any person engaged in the business of cleaning up for the
United States, or its instrumentalities, radioactive waste and other
by-products of weapons production and nuclear research and development;
(9) Any person who is an owner, lessee, or has the right of
possession of tangible personal property that, under the terms of an
extended warranty as defined in RCW 82.04.050(7), has been repaired or
is replacement property, but only with respect to the sale of or charge
made for the repairing of the tangible personal property or the
replacement property;
(10) Any person who purchases, acquires, or uses services described
in RCW 82.04.050 (6)(b) or (7) other than for resale in the regular
course of business; and
(11)(a) Any end user of a digital product or digital code.
(b)(i) For purposes of this subsection, "end user" means any
taxpayer as defined in RCW 82.12.010 other than a taxpayer who receives
by contract a digital product for further commercial broadcast,
rebroadcast, transmission, retransmission, licensing, relicensing,
distribution, redistribution or exhibition of the product, in whole or
in part, to others. A person that purchases digital products or
digital codes for the purpose of giving away such products or codes
will not be considered to have engaged in the distribution or
redistribution of such products or codes and will be treated as an end
user;
(ii) If a purchaser of a digital code does not receive the
contractual right to further redistribute, after the digital code is
redeemed, the underlying digital product to which the digital code
relates, then the purchaser of the digital code is an end user. If the
purchaser of the digital code receives the contractual right to further
redistribute, after the digital code is redeemed, the underlying
digital product to which the digital code relates, then the purchaser
of the digital code is not an end user. A purchaser of a digital code
who has the contractual right to further redistribute the digital code
is an end user if that purchaser does not have the right to further
redistribute, after the digital code is redeemed, the underlying
digital product to which the digital code relates.
Sec. 1504 RCW 82.04.215 and 2003 c 168 s 601 are each amended to
read as follows:
(1) "Computer" means an electronic device that accepts information
in digital or similar form and manipulates it for a result based on a
sequence of instructions.
(2) "Computer software" means a set of coded instructions designed
to cause a computer or automatic data processing equipment to perform
a task. All software is classified as either prewritten or custom.
Consistent with this definition "computer software" includes only those
sets of coded instructions intended for use by an end user and
specifically excludes retained rights in software and master copies of
software.
(3) "Custom software" means computer software created for a single
person.
(4) "Customization of prewritten computer software" means any
alteration, modification, or development of applications using or
incorporating prewritten computer software for a specific person.
"Customization of prewritten computer software" includes individualized
configuration of software to work with other software and computer
hardware but does not include routine installation. Customization of
prewritten computer software does not change the underlying character
or taxability of the original prewritten computer software.
(5) "Master copies" of software means copies of software from which
a software developer, author, inventor, publisher, licensor,
sublicensor, or distributor makes copies for sale or license.
(6) "Prewritten computer software" means computer software,
including prewritten upgrades, that is not designed and developed by
the author or other creator to the specifications of a specific
purchaser. 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. 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 such purchaser. Where a person modifies or
enhances computer software of which such persons is not the author or
creator, the person ((shall be)) is deemed to be the author or creator
only of the person's modifications or enhancements. Prewritten
computer software or a prewritten portion thereof that is modified or
enhanced to any degree, where such modification or enhancement is
designed and developed to the specifications of a specific purchaser,
remains prewritten computer software; 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 ((shall)) does not
constitute prewritten computer software.
(7) "Retained rights" means any and all rights, including
intellectual property rights such as those rights arising from
copyrights, patents, and trade secret laws, that are owned or are held
under contract or license by a software developer, author, inventor,
publisher, licensor, sublicensor, or distributor.
NEW SECTION. Sec. 1505 RCW 82.04.29001 (Creation and
distribution of custom software -- Customization of prewritten computer
software -- Taxable services) and 2003 c 168 s 602 & 1998 c 332 s 4 are
each repealed.
Sec. 1506 RCW 82.08.02088 and 2009 c 535 s 701 are each amended
to read as follows:
(1) The tax imposed by RCW 82.08.020 does not apply to the sale of
digital goods, digital codes, digital automated services, prewritten
computer software, or services defined as a retail sale in RCW
82.04.050 (6)(b) or (7) to a buyer that provides the seller with an
exemption certificate claiming multiple points of use. An exemption
certificate claiming multiple points of use must be in a form and
contain such information as required by the department.
(2) A buyer is entitled to use an exemption certificate claiming
multiple points of use only if the buyer is a business or other
organization and the digital goods or digital automated services
purchased, or the digital goods or digital automated services to be
obtained by the digital code purchased, or the prewritten computer
software or services defined as a retail sale in RCW 82.04.050 (6)(b)
or (7) purchased will be concurrently available for use within and
outside this state. A buyer is not entitled to use an exemption
certificate claiming multiple points of use for digital goods, digital
codes, digital automated services, prewritten computer software, or
services defined as a retail sale in RCW 82.04.050(6)(b) purchased for
personal use.
(3) A buyer claiming an exemption under this section must report
and pay the tax imposed in RCW 82.12.020 and any local use taxes
imposed under the authority of chapter 82.14 RCW and RCW 81.104.170
directly to the department in accordance with RCW 82.12.02088 and
82.14.457.
(4) For purposes of this section, "concurrently available for use
within and outside this state" means that employees or other agents of
the buyer may use the digital goods, digital automated services,
prewritten computer software, or services defined as a retail sale in
RCW 82.04.050 (6)(b) or (7) simultaneously from one or more locations
within this state and one or more locations outside this state. A
digital code is concurrently available for use within and outside this
state if employees or other agents of the buyer may use the digital
goods or digital automated services to be obtained by the code
simultaneously at one or more locations within this state and one or
more locations outside this state.
Sec. 1507 RCW 82.12.010 and 2009 c 535 s 304 are each amended to
read as follows:
For the purposes of this chapter:
(1) "Purchase price" means the same as sales price as defined in
RCW 82.08.010;
(2)(a) "Value of the article used" ((shall be)) is the purchase
price for the article of tangible personal property, the use of which
is taxable under this chapter. The term also includes, in addition to
the purchase price, the amount of any tariff or duty paid with respect
to the importation of the article used. In case the article used is
acquired by lease or by gift or is extracted, produced, or manufactured
by the person using the same or is sold under conditions wherein the
purchase price does not represent the true value thereof, the value of
the article used ((shall)) must be determined as nearly as possible
according to the retail selling price at place of use of similar
products of like quality and character under such rules as the
department may prescribe.
(b) In case the articles used are acquired by bailment, the value
of the use of the articles so used ((shall)) must be in an amount
representing a reasonable rental for the use of the articles so bailed,
determined as nearly as possible according to the value of such use at
the places of use of similar products of like quality and character
under such rules as the department of revenue may prescribe. In case
any such articles of tangible personal property are used in respect to
the construction, repairing, decorating, or improving of, and which
become or are to become an ingredient or component of, new or existing
buildings or other structures under, upon, or above real property of or
for the United States, any instrumentality thereof, or a county or city
housing authority created pursuant to chapter 35.82 RCW, including the
installing or attaching of any such articles therein or thereto,
whether or not such personal property becomes a part of the realty by
virtue of installation, then the value of the use of such articles so
used ((shall)) must be determined according to the retail selling price
of such articles, or in the absence of such a selling price, as nearly
as possible according to the retail selling price at place of use of
similar products of like quality and character or, in the absence of
either of these selling price measures, such value may be determined
upon a cost basis, in any event under such rules as the department of
revenue may prescribe.
(c) In the case of articles owned by a user engaged in business
outside the state which are brought into the state for no more than one
hundred eighty days in any period of three hundred sixty-five
consecutive days and which are temporarily used for business purposes
by the person in this state, the value of the article used ((shall))
must be an amount representing a reasonable rental for the use of the
articles, unless the person has paid tax under this chapter or chapter
82.08 RCW upon the full value of the article used, as defined in (a) of
this subsection.
(d) In the case of articles manufactured or produced by the user
and used in the manufacture or production of products sold or to be
sold to the department of defense of the United States, the value of
the articles used ((shall)) must be determined according to the value
of the ingredients of such articles.
(e) In the case of an article manufactured or produced for purposes
of serving as a prototype for the development of a new or improved
product, the value of the article used ((shall)) must be determined by:
(i) The retail selling price of such new or improved product when first
offered for sale; or (ii) the value of materials incorporated into the
prototype in cases in which the new or improved product is not offered
for sale.
(f) In the case of an article purchased with a direct pay permit
under RCW 82.32.087, the value of the article used ((shall be)) is
determined by the purchase price of such article if, but for the use of
the direct pay permit, the transaction would have been subject to sales
tax;
(3) "Value of the service used" means the purchase price for the
digital automated service or other service, the use of which is taxable
under this chapter. If the service is received by gift or under
conditions wherein the purchase price does not represent the true value
thereof, the value of the service used ((shall)) must be determined as
nearly as possible according to the retail selling price at place of
use of similar services of like quality and character under rules the
department may prescribe;
(4) "Value of the extended warranty used" means the purchase price
for the extended warranty, the use of which is taxable under this
chapter. If the extended warranty is received by gift or under
conditions wherein the purchase price does not represent the true value
of the extended warranty, the value of the extended warranty used
((shall)) must be determined as nearly as possible according to the
retail selling price at place of use of similar extended warranties of
like quality and character under rules the department may prescribe;
(5) "Value of the digital good or digital code used" means the
purchase price for the digital good or digital code, the use of which
is taxable under this chapter. If the digital good or digital code is
acquired other than by purchase, the value of the digital good or
digital code must be determined as nearly as possible according to the
retail selling price at place of use of similar digital goods or
digital codes of like quality and character under rules the department
may prescribe;
(6) "Use," "used," "using," or "put to use" have their ordinary
meaning, and mean:
(a) With respect to tangible personal property, the first act
within this state by which the taxpayer takes or assumes dominion or
control over the article of tangible personal property (as a consumer),
and include installation, storage, withdrawal from storage,
distribution, or any other act preparatory to subsequent actual use or
consumption within this state;
(b) With respect to a service defined in RCW 82.04.050(2)(a), the
first act within this state after the service has been performed by
which the taxpayer takes or assumes dominion or control over the
article of tangible personal property upon which the service was
performed (as a consumer), and includes installation, storage,
withdrawal from storage, distribution, or any other act preparatory to
subsequent actual use or consumption of the article within this state;
(c) With respect to an extended warranty, the first act within this
state after the extended warranty has been acquired by which the
taxpayer takes or assumes dominion or control over the article of
tangible personal property to which the extended warranty applies, and
includes installation, storage, withdrawal from storage, distribution,
or any other act preparatory to subsequent actual use or consumption of
the article within this state;
(d) With respect to a digital good or digital code, the first act
within this state by which the taxpayer, as a consumer, views,
accesses, downloads, possesses, stores, opens, manipulates, or
otherwise uses or enjoys the digital good or digital code;
(e) With respect to a digital automated service, the first act
within this state by which the taxpayer, as a consumer, uses, enjoys,
or otherwise receives the benefit of the service;
(f) With respect to a service defined as a retail sale in RCW
82.04.050 (6)(b) or (7), the first act within this state by which the
taxpayer, as a consumer, accesses the ((prewritten)) computer software;
and
(g) With respect to a service defined as a retail sale in RCW
82.04.050(2)(g), the first act within this state after the service has
been performed by which the taxpayer, as a consumer, views, accesses,
downloads, possesses, stores, opens, manipulates, or otherwise uses or
enjoys the digital good upon which the service was performed;
(7) "Taxpayer" and "purchaser" include all persons included within
the meaning of the word "buyer" and the word "consumer" as defined in
chapters 82.04 and 82.08 RCW;
(8)(a)(i) Except as provided in (a)(ii) of this subsection (8),
"retailer" means every seller as defined in RCW 82.08.010 and every
person engaged in the business of selling tangible personal property at
retail and every person required to collect from purchasers the tax
imposed under this chapter.
(ii) "Retailer" does not include a professional employer
organization when a covered employee coemployed with the client under
the terms of a professional employer agreement engages in activities
that constitute a sale of tangible personal property, extended
warranty, digital good, digital code, or a sale of any digital
automated service or service defined as a retail sale in RCW 82.04.050
(2) (a) or (g), (3)(a), ((or)) (6)(b), or (7) that is subject to the
tax imposed by this chapter. In such cases, the client, and not the
professional employer organization, is deemed to be the retailer and is
responsible for collecting and remitting the tax imposed by this
chapter.
(b) For the purposes of (a) of this subsection, the terms "client,"
"covered employee," "professional employer agreement," and
"professional employer organization" have the same meanings as in RCW
82.04.540;
(9) "Extended warranty" has the same meaning as in RCW
82.04.050(7);
(10) The meaning ascribed to words and phrases in chapters 82.04
and 82.08 RCW, insofar as applicable, ((shall have)) has full force and
effect with respect to taxes imposed under the provisions of this
chapter. "Consumer," in addition to the meaning ascribed to it in
chapters 82.04 and 82.08 RCW insofar as applicable, ((shall)) also
means any person who distributes or displays, or causes to be
distributed or displayed, any article of tangible personal property,
except newspapers, the primary purpose of which is to promote the sale
of products or services. With respect to property distributed to
persons within this state by a consumer as defined in this subsection
(10), the use of the property ((shall be)) is deemed to be by such
consumer.
Sec. 1508 RCW 82.12.020 and 2009 c 535 s 305 are each amended to
read as follows:
(1) There is ((hereby)) levied and ((there shall be)) collected
from every person in this state a tax or excise for the privilege of
using within this state as a consumer any:
(a) Article of tangible personal property purchased at retail, or
acquired by lease, gift, repossession, or bailment, or extracted or
produced or manufactured by the person so using the same, or otherwise
furnished to a person engaged in any business taxable under RCW
82.04.280 (2) or (7), including tangible personal property acquired at
a casual or isolated sale, and including by-products used by the
manufacturer thereof, except as otherwise provided in this chapter,
irrespective of whether the article or similar articles are
manufactured or are available for purchase within this state;
(b) Prewritten computer software, regardless of the method of
delivery, but excluding prewritten computer software that is either
provided free of charge or is provided for temporary use in viewing
information, or both;
(c) Services defined as a retail sale in RCW 82.04.050 (2)(a) or
(g), (3)(a), ((or)) (6)(b), or (7), excluding services defined as a
retail sale in RCW 82.04.050(6)(b) that are provided free of charge;
(d) Extended warranty; or
(e)(i) Digital good, digital code, or digital automated service,
including the use of any services provided by a seller exclusively in
connection with digital goods, digital codes, or digital automated
services, whether or not a separate charge is made for such services.
(ii) With respect to the use of digital goods, digital automated
services, and digital codes acquired by purchase, the tax imposed in
this subsection (1)(e) applies in respect to:
(A) Sales in which the seller has granted the purchaser the right
of permanent use;
(B) Sales in which the seller has granted the purchaser a right of
use that is less than permanent;
(C) Sales in which the purchaser is not obligated to make continued
payment as a condition of the sale; and
(D) Sales in which the purchaser is obligated to make continued
payment as a condition of the sale.
(iii) With respect to digital goods, digital automated services,
and digital codes acquired other than by purchase, the tax imposed in
this subsection (1)(e) applies regardless of whether or not the
consumer has a right of permanent use or is obligated to make continued
payment as a condition of use.
(2) The provisions of this chapter do not apply in respect to the
use of any article of tangible personal property, extended warranty,
digital good, digital code, digital automated service, or service
taxable under RCW 82.04.050 (2)(a) or (g), (3)(a), ((or)) (6)(b), or
(7), if the sale to, or the use by, the present user or the present
user's bailor or donor has already been subjected to the tax under
chapter 82.08 RCW or this chapter and the tax has been paid by the
present user or by the present user's bailor or donor.
(3)(a) Except as provided in this section, payment of the tax
imposed by this chapter or chapter 82.08 RCW by one purchaser or user
of tangible personal property, extended warranty, digital good, digital
code, digital automated service, or other service does not have the
effect of exempting any other purchaser or user of the same property,
extended warranty, digital good, digital code, digital automated
service, or other service from the taxes imposed by such chapters.
(b) The tax imposed by this chapter does not apply:
(i) If the sale to, or the use by, the present user or his or her
bailor or donor has already been subjected to the tax under chapter
82.08 RCW or this chapter and the tax has been paid by the present user
or by his or her bailor or donor;
(ii) In respect to the use of any article of tangible personal
property acquired by bailment and the tax has once been paid based on
reasonable rental as determined by RCW 82.12.060 measured by the value
of the article at time of first use multiplied by the tax rate imposed
by chapter 82.08 RCW or this chapter as of the time of first use;
(iii) In respect to the use of any article of tangible personal
property acquired by bailment, if the property was acquired by a
previous bailee from the same bailor for use in the same general
activity and the original bailment was prior to June 9, 1961; or
(iv) To the use of digital goods or digital automated services,
which were obtained through the use of a digital code, if the sale of
the digital code to, or the use of the digital code by, the present
user or the present user's bailor or donor has already been subjected
to the tax under chapter 82.08 RCW or this chapter and the tax has been
paid by the present user or by the present user's bailor or donor.
(4)(a) Except as provided in (b) of this subsection (4), the tax is
levied and must be collected in an amount equal to the value of the
article used, value of the digital good or digital code used, value of
the extended warranty used, or value of the service used by the
taxpayer, multiplied by the applicable rates in effect for the retail
sales tax under RCW 82.08.020.
(b) In the case of a seller required to collect use tax from the
purchaser, the tax must be collected in an amount equal to the purchase
price multiplied by the applicable rate in effect for the retail sales
tax under RCW 82.08.020.
Sec. 1601 RCW 82.24.020 and 2009 c 479 s 66 are each amended to
read as follows:
(1) There is levied and ((there shall be)) collected as provided in
this chapter, a tax upon the sale, use, consumption, handling,
possession, or distribution of all cigarettes, in an amount equal to
((one and fifteen one-hundredths)) 12.125 cents per cigarette.
(2) ((An additional tax is imposed upon the sale, use, consumption,
handling, possession, or distribution of all cigarettes, in an amount
equal to five hundred twenty-five one-thousandths of a cent per
cigarette. All revenues collected during any month from this
additional tax shall be deposited in the state general fund by the
twenty-fifth day of the following month.)) Wholesalers subject to the payment of this tax may, if they
wish, absorb five one-hundredths cents per cigarette of the tax and not
pass it on to purchasers without being in violation of this section or
any other act relating to the sale or taxation of cigarettes.
(3) An additional tax is imposed upon the sale, use, consumption,
handling, possession, or distribution of all cigarettes, in an amount
equal to two and five one-hundredths cents per cigarette. All revenues
collected during any month from this additional tax shall be deposited
in the state general fund by the twenty-fifth day of the following
month.
(4)
(((5))) (3) For purposes of this chapter, "possession" ((shall))
means both (a) physical possession by the purchaser and, (b) when
cigarettes are being transported to or held for the purchaser or his or
her designee by a person other than the purchaser, constructive
possession by the purchaser or his or her designee, which constructive
possession ((shall be)) is deemed to occur at the location of the
cigarettes being so transported or held.
(((6))) (4) In accordance with federal law and rules prescribed by
the department, an enrolled member of a federally recognized Indian
tribe may purchase cigarettes from an Indian tribal organization under
the jurisdiction of the member's tribe for the member's own use exempt
from the applicable taxes imposed by this chapter. Except as provided
in subsection (((7))) (5) of this section, any person, who purchases
cigarettes from an Indian tribal organization and who is not an
enrolled member of the federally recognized Indian tribe within whose
jurisdiction the sale takes place, is not exempt from the applicable
taxes imposed by this chapter.
(((7))) (5) If the state enters into a cigarette tax contract or
agreement with a federally recognized Indian tribe under chapter 43.06
RCW, the terms of the contract or agreement ((shall)) take precedence
over any conflicting provisions of this chapter while the contract or
agreement is in effect.
(6) By July 1, 2011, and by July 1st of each year thereafter, the
state treasurer must transfer eighteen million dollars from the general
fund into the tobacco prevention and control account under RCW
43.79.480.
Sec. 1602 RCW 82.24.026 and 2009 c 479 s 67 are each amended to
read as follows:
(1) In addition to the tax imposed upon the sale, use, consumption,
handling, possession, or distribution of cigarettes set forth in RCW
82.24.020, there is imposed a tax in an amount equal to three cents per
cigarette.
(2) The revenue collected under this section ((shall)) must be
deposited as follows:
(a) ((28.5)) 14 percent ((shall)) must be deposited into the
general fund.
(b) The remainder ((shall)) must be deposited into the education
legacy trust account.
Sec. 1603 RCW 82.26.010 and 2005 c 180 s 2 are each amended to
read as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Tobacco products" means cigars, cheroots, stogies, periques,
granulated, plug cut, crimp cut, ready rubbed, and other smoking
tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings,
cuttings and sweepings of tobacco, and other kinds and forms of
tobacco, prepared in such manner as to be suitable for chewing or
smoking in a pipe or otherwise, or both for chewing and smoking, and
any other product, regardless of form, that contains tobacco and is
intended for human consumption or placement in the oral or nasal cavity
or absorption into the human body by any other means, but ((shall))
does not include cigarettes as defined in RCW 82.24.010.
(2) "Manufacturer" means a person who manufactures and sells
tobacco products.
(3) "Distributor" means (a) any person engaged in the business of
selling tobacco products in this state who brings, or causes to be
brought, into this state from without the state any tobacco products
for sale, (b) any person who makes, manufactures, fabricates, or stores
tobacco products in this state for sale in this state, (c) any person
engaged in the business of selling tobacco products without this state
who ships or transports tobacco products to retailers in this state, to
be sold by those retailers, (d) any person engaged in the business of
selling tobacco products in this state who handles for sale any tobacco
products that are within this state but upon which tax has not been
imposed.
(4) "Retailer" means any person engaged in the business of selling
tobacco products to ultimate consumers.
(5)(a) "Sale" means any transfer, exchange, or barter, in any
manner or by any means whatsoever, for a consideration, and includes
and means all sales made by any person.
(b) The term "sale" includes a gift by a person engaged in the
business of selling tobacco products, for advertising, promoting, or as
a means of evading the provisions of this chapter.
(6) "Business" means any trade, occupation, activity, or enterprise
engaged in for the purpose of selling or distributing tobacco products
in this state.
(7) "Place of business" means any place where tobacco products are
sold or where tobacco products are manufactured, stored, or kept for
the purpose of sale, including any vessel, vehicle, airplane, train, or
vending machine.
(8) "Retail outlet" means each place of business from which tobacco
products are sold to consumers.
(9) "Department" means the department of revenue.
(10) "Person" means any individual, receiver, administrator,
executor, assignee, trustee in bankruptcy, trust, estate, firm,
copartnership, joint venture, club, company, joint stock company,
business trust, municipal corporation, the state and its departments
and institutions, political subdivision of the state of Washington,
corporation, limited liability company, association, society, any group
of individuals acting as a unit, whether mutual, cooperative,
fraternal, nonprofit, or otherwise. The term excludes any person
immune from state taxation, including the United States or its
instrumentalities, and federally recognized Indian tribes and enrolled
tribal members, conducting business within Indian country.
(11) "Indian country" means the same as defined in chapter 82.24
RCW.
(12) "Actual price" means the total amount of consideration for
which tobacco products are sold, valued in money, whether received in
money or otherwise, including any charges by the seller necessary to
complete the sale such as charges for delivery, freight,
transportation, or handling.
(13) "Affiliated" means related in any way by virtue of any form or
amount of common ownership, control, operation, or management.
(14) "Board" means the liquor control board.
(15) "Cigar" means a roll for smoking that is of any size or shape
and that is made wholly or in part of tobacco, irrespective of whether
the tobacco is pure or flavored, adulterated or mixed with any other
ingredient, if the roll has a wrapper made wholly or in greater part of
tobacco. "Cigar" does not include a cigarette.
(16) "Cigarette" has the same meaning as in RCW 82.24.010.
(17) "Manufacturer's representative" means a person hired by a
manufacturer to sell or distribute the manufacturer's tobacco products,
and includes employees and independent contractors.
(18)(a) "Taxable sales price" means:
(i) In the case of a taxpayer that is not affiliated with the
manufacturer, distributor, or other person from whom the taxpayer
purchased tobacco products, the actual price for which the taxpayer
purchased the tobacco products;
(ii) In the case of a taxpayer that purchases tobacco products from
an affiliated manufacturer, affiliated distributor, or other affiliated
person, and that sells those tobacco products to unaffiliated
distributors, unaffiliated retailers, or ultimate consumers, the actual
price for which that taxpayer sells those tobacco products to
unaffiliated distributors, unaffiliated retailers, or ultimate
consumers;
(iii) In the case of a taxpayer that sells tobacco products only to
affiliated distributors or affiliated retailers, the price, determined
as nearly as possible according to the actual price, that other
distributors sell similar tobacco products of like quality and
character to unaffiliated distributors, unaffiliated retailers, or
ultimate consumers;
(iv) In the case of a taxpayer that is a manufacturer selling
tobacco products directly to ultimate consumers, the actual price for
which the taxpayer sells those tobacco products to ultimate consumers;
(v) In the case of a taxpayer that has acquired tobacco products
under a sale as defined in subsection (5)(b) of this section, the
price, determined as nearly as possible according to the actual price,
that the taxpayer or other distributors sell the same tobacco products
or similar tobacco products of like quality and character to
unaffiliated distributors, unaffiliated retailers, or ultimate
consumers; or
(vi) In any case where (a)(i) through (v) of this subsection do not
apply, the price, determined as nearly as possible according to the
actual price, that the taxpayer or other distributors sell the same
tobacco products or similar tobacco products of like quality and
character to unaffiliated distributors, unaffiliated retailers, or
ultimate consumers.
(b) For purposes of (a)(i) and (ii) of this subsection only,
"person" includes both persons as defined in subsection (10) of this
section and any person immune from state taxation, including the United
States or its instrumentalities, and federally recognized Indian tribes
and enrolled tribal members, conducting business within Indian country.
(c) The department may adopt rules regarding the determination of
taxable sales price under this subsection.
(19) "Taxpayer" means a person liable for the tax imposed by this
chapter.
(20) "Unaffiliated distributor" means a distributor that is not
affiliated with the manufacturer, distributor, or other person from
whom the distributor has purchased tobacco products.
(21) "Unaffiliated retailer" means a retailer that is not
affiliated with the manufacturer, distributor, or other person from
whom the retailer has purchased tobacco products.
(22) "Moist snuff" means tobacco that is finely cut, ground, or
powdered; is not for smoking; and is intended to be placed in the oral,
but not the nasal, cavity.
(23) "Little cigar" means a cigar that has an integrated filter.
Sec. 1604 RCW 82.26.020 and 2009 c 479 s 70 are each amended to
read as follows:
(1) There is levied and ((there shall be)) collected a tax upon the
sale, handling, or distribution of all tobacco products in this state
at the following rate:
(a) ((Seventy-five)) For cigars except little cigars, ninety-five
percent of the taxable sales price of cigars, not to exceed ((fifty
cents)) one dollar per cigar; ((or))
(b) ((Seventy-five)) For all tobacco products except those covered
under separate provisions of this subsection, ninety-five percent of
the taxable sales price ((of all tobacco products that are not
cigars));
(c) For moist snuff, as established in this subsection (1)(c) and
computed on the net weight listed by the manufacturer:
(i) On each single unit consumer-sized can or package whose net
weight is one and two-tenths ounces or less, a rate per single unit
that is equal to the greater of 3.025 dollars or the cigarette tax
under chapter 82.24 RCW multiplied by twenty; or
(ii) On each single unit consumer-sized can or package whose net
weight is more than one and two-tenths ounces, a proportionate tax at
the rate established in (c)(i) of this subsection (1) on each ounce or
fractional part of an ounce; and
(d) For little cigars, an amount per cigar equal to the cigarette
tax under chapter 82.24 RCW.
(2) Taxes under this section ((shall)) must be imposed at the time
the distributor (a) brings, or causes to be brought, into this state
from without the state tobacco products for sale, (b) makes,
manufactures, fabricates, or stores tobacco products in this state for
sale in this state, (c) ships or transports tobacco products to
retailers in this state, to be sold by those retailers, or (d) handles
for sale any tobacco products that are within this state but upon which
tax has not been imposed.
(3) The moneys collected under this section ((shall)) must be
deposited into the state general fund.
NEW SECTION. Sec. 1605 A new section is added to chapter 82.26
RCW to read as follows:
(1)(a) Within one year following the date on which the requirement
for a tobacco product code is effective, payment of, or exemption from,
the tax imposed in RCW 82.26.020 must be verifiable on each single-unit
consumer-sized can or package of moist snuff, as provided in (b) of
this subsection.
(b) Within thirty days following the date on which notice of
proposed rule making to require a tobacco product code is published in
the federal register, the department must commence to develop a method
for using a tobacco product code to verify payment of, or exemption
from, the tax imposed in RCW 82.26.020; to develop and implement a
pilot project to test the method; and to develop a plan for adoption of
rules to implement the method. The department must report to the
legislature on its progress annually by December 1st through the year
following the year in which the method is implemented.
(2) If notice of proposed rule making to require a tobacco product
code is not published in the federal register by July 1, 2011, the
department must determine and recommend to the legislature by November
1, 2014, a method to verify payment of, or exemption from, the tax
imposed in RCW 82.26.020, by means of stamping, use of manufacturers'
digitally readable product identifiers, or any other method, and must
complete and present to the legislature a study of compliance with the
tax imposed in RCW 82.26.020, the effect of noncompliance on state
revenue, and the effect of adopting a method to verify payment of, or
exemption from, the tax.
(3) For purposes of this section, "tobacco product code" means a
code that is required on the label of a tobacco product for purposes of
tracking or tracing the product through the distribution system under
final regulations adopted by the secretary of the United States
department of health and human services.
NEW SECTION. Sec. 1606 A new section is added to chapter 82.26
RCW to read as follows:
Beginning July 1, 2011, distributors subject to the provisions of
this chapter must provide information regarding their purchase of other
tobacco products as required by the department. Such information may
include product description; brand; number of packages; quantity of
product per package by weight, count, or other applicable measure;
purchase price per package; and other information as determined by the
department.
Sec. 1607 RCW 82.26.030 and 2005 c 180 s 1 are each amended to
read as follows:
It is the intent and purpose of this chapter to levy a tax on all
tobacco products sold, used, consumed, handled, or distributed within
this state and to collect the tax from the distributor as defined in
RCW 82.26.010. It is the further intent and purpose of this chapter to
impose the tax once, and only once, on all tobacco products for sale in
this state, but nothing in this chapter ((shall)) may be construed to
exempt any person taxable under any other law or under any other tax
imposed under Title 82 RCW. It is the further intent and purpose of
this chapter that the distributor who first possesses the tobacco
product in this state ((shall be)) is the distributor liable for the
tax and that (1) for moist snuff the tax will be based on the net
weight listed by the manufacturer and (2) in most other instances the
tax will be based on the actual price that the distributor paid for the
tobacco product, unless the distributor is affiliated with the seller.
NEW SECTION. Sec. 1608 The legislature recognizes the role that
tax policy plays in the levels of consumption of moist snuff by youth
due to impacts on price. Discouraging youth access to moist snuff and
youth consumption is an important state policy. The legislature
directs the department of health, with the assistance of the department
of revenue and the office of financial management, to study this issue.
The study must examine the historic, current, and future trends and
data, including but not limited to which products are consumed, by
which age group, and how the products were acquired. The study should
cover the period beginning with the year 2000, if possible. The
department of health must report to the appropriate fiscal and health
care committees of the legislature by December 1, 2010. The department
of health may consult with academics, other experts, and industry
representatives in studying this issue and preparing any reports
required under this section.
NEW SECTION. Sec. 1609 The following acts or parts of acts are
each repealed:
(1) RCW 82.24.027 (Additional tax imposed -- Rate -- Deposited into the
general fund) and 2009 c 479 s 68, 2008 c 86 s 303, 1999 c 309 s 925,
& 1986 c 3 s 12; and
(2) RCW 82.24.028 (Additional tax imposed -- Rate -- Deposited into the
general fund) and 2009 c 479 s 69, 2008 c 86 s 304, & 2002 c 2 s 3.
NEW SECTION. Sec. 1701 Sections 1701 through 1707 of this act
may be known and cited as the clean water act of 2010.
NEW SECTION. Sec. 1702 (1) The legislature finds that nonpoint
water pollution and contaminated storm water runoff is a major problem
in the state creating a significant burden on the rivers, aquifers,
lakes, streams, and marine receiving waters across Washington.
(2) The legislature recognizes that the burden of nonpoint and
storm water pollution is caused by both increased volumes of water
runoff due to the expansion of impervious surfaces and the toxic
substances that pollute the runoff. The burden of storm water and
nonpoint pollution from hazardous substances is difficult to offset
because the source of pollution is not a single physical point, but
occurs wherever the toxic substances are manufactured, used, or
consumed.
(3) The legislature finds that the federal government and the state
of Washington have identified control of pollutants in storm water
runoff through national pollutant discharge elimination system phase I
and II municipal storm water permits as a requirement for the state and
local jurisdictions. Impacts from the polluted storm water may be
prevented or controlled through retrofit projects for existing
infrastructure as well as other means.
(4) The legislature finds that resources available to offset the
direct burdens of storm water pollution by hazardous substances are
insufficient to meet existing needs. Existing funding is raised
largely by local governments and is disproportionately borne by fees
levied on individuals and property owners.
(5) Finally, the legislature finds that increasing the tax on
hazardous substances is necessary to fund programs that will offset the
burdens that pollution places on the environment and the waters of the
state.
Sec. 1703 RCW 82.21.030 and 1989 c 2 s 10 are each amended to
read as follows:
(1)(a) A tax is imposed on the privilege of possession of hazardous
substances in this state. The rate of the tax ((shall be)) is seven-tenths of one percent multiplied by the wholesale value of the
substance.
(b) Beginning May 1, 2010, an additional tax is imposed on the
privilege of possession of hazardous substances in this state. The
rate of the tax is equal to one and three-tenths percent multiplied by
the wholesale value of the substance.
(2)(a) Moneys collected under ((this chapter shall)) subsection
(1)(a) of this section must be deposited in the toxics control accounts
under RCW 70.105D.070 and expended in accordance with the purposes
stated therein.
(b) Moneys collected under subsection (1)(b) of this section must
be deposited into the clean water legacy fund hereby created in the
custody of the state treasurer. The state treasurer must transfer the
funds deposited into the clean water legacy fund as follows:
(i) For taxes collected through June 30, 2011, twenty percent must
be deposited in the storm water account created in section 1704 of this
act to be used solely for the purposes of funding the items set forth
in section 1704(2)(a) of this act, two and forty-five one-hundredths
percent must be deposited in the state oil spill prevention account,
two and one-twentieth percent must be deposited into the Puget Sound
recovery account to be used as required under section 1706 of this act,
two and one-twentieth percent must be deposited into the water quality
action account to be used as required under section 1707 of this act,
five percent must be deposited into the motor vehicle account to be
used as required under section 1705 of this act, and the remainder must
be deposited into the general fund.
(ii) For taxes collected between July 1, 2011, and June 30, 2013,
twenty percent must be deposited into the storm water account created
in section 1704 of this act, one and four-fifths percent must be
deposited in the state oil spill prevention account, two and two-fifths
percent must be deposited into the Puget Sound recovery account to be
used as required under section 1706 of this act, two and two-fifths
percent must be deposited in the water quality action account to be
used as required under section 1707 of this act, five percent must be
deposited into the motor vehicle account to be used as required under
section 1705 of this act, and the remainder must be deposited into the
general fund.
(iii) For taxes collected between July 1, 2013, and June 30, 2015,
forty-five percent must be deposited into the storm water account
created in section 1704 of this act, one and four-fifths percent must
be deposited in the state oil spill prevention account, four and one-half percent must be deposited into the Puget Sound recovery account to
be used as required under section 1706 of this act, four and two-fifths
percent must be deposited in the water quality action account to be
used as required under section 1707 of this act, ten percent must be
deposited into the motor vehicle account to be used as required under
section 1705 of this act, and the remainder must be deposited into the
general fund.
(iv) For taxes collected on or after July 1, 2015, one and four-fifths percent must be deposited in the state oil spill prevention
account, nine and one-half percent must be deposited into the Puget
Sound recovery account to be used as required under section 1706 of
this act, nine and one-half percent must be deposited in the water
quality action account to be used as required under section 1707 of
this act, ten percent must be deposited into the motor vehicle account
to be used as required under section 1705 of this act, and the
remainder must be deposited into the storm water account created in
section 1704 of this act.
(3) Chapter 82.32 RCW applies to the tax imposed in this chapter.
The tax due dates, reporting periods, and return requirements
applicable to chapter 82.04 RCW apply equally to the tax imposed in
this chapter.
NEW SECTION. Sec. 1704 A new section is added to chapter 90.48
RCW to read as follows:
(1) The storm water account is created in the state treasury.
Receipts from the tax imposed under RCW 82.21.030(1)(b) must be
deposited in the account as set forth in RCW 82.21.030. Moneys in the
account are allocated to the department and may be spent only after
appropriation. Expenditures from the account must be used on
activities or projects that mitigate or prevent storm water pollution.
(2) After deducting the department's administrative costs of no
more than four percent of the appropriations included in the omnibus
operating and capital appropriations acts associated with administering
a competitive grant process, moneys must be distributed annually based
on the following allocation:
(a) Fifty percent of the remaining moneys must be allocated through
the grant process to local governments covered by national pollutant
discharge elimination system municipal phase I or phase II permits to
fund local government projects or activities that mitigate or prevent
contamination of storm water or the recontamination of receiving waters
previously remediated under federal or state-approved activities. To
be eligible, local governments must provide fifty percent of project or
activity costs from other nonstate fund sources. Of the allocation in
this subsection, seventy-five thousand dollars must be provided to each
jurisdiction that is subject to the national pollutant discharge
elimination system phase I or phase II requirements.
(b) Forty percent of the remaining moneys must be allocated through
the grant process to local governments for retrofit projects that
address contamination of storm water, or projects that directly reduce
toxic diesel emissions that result in air deposition of storm water
pollutants. The moneys for retrofit projects must be prioritized for
projects that utilize low-impact development retrofit strategies, but
moneys may be awarded for other retrofit projects if the site does not
lend itself to low-impact development techniques or other retrofit
techniques that are shown to be more effective in terms of addressing
water quality problems associated with the site.
(c) Ten percent of the remaining moneys must be allocated through
either existing storm water grant programs or the grant process to
projects under (a) or (b) of this subsection and to the highest
priority projects based upon ecological and water quality benefits
determined by the department. For projects qualifying under this
subsection, moneys may be allocated to meet the matching requirements
under (a) of this subsection to jurisdictions that demonstrate economic
hardship in meeting the matching requirement.
(3) In consultation with stakeholders, the department must develop
criteria for administering the program and ranking projects for funding
based on water quality benefits. In developing criteria applicable to
projects in the Puget Sound basin, the department must consult with the
Puget Sound partnership. Consistent with RCW 90.71.340, when making
grants under this section that contribute to Puget Sound protection and
recovery, the department must consult with the Puget Sound partnership
to ensure that grants are for projects and activities that are
consistent with the prioritization of the 2020 action agenda. All
activities or capital projects approved for funding must demonstrate
the potential to achieve clear ecological or water quality benefits.
The department must endeavor to distribute the moneys within each
geographic region of the state in proportion to the severity of impacts
to waterways from storm water pollution.
(4) The department must initiate the grant application process by
July 1, 2010.
(5) By December 1, 2013, and every two years thereafter, the
department must report to the governor and the appropriate committees
of the legislature on the progress of the program and the suitability
of the percentage allocations specified in subsection (2)(a) through
(c) of this section.
(6) The definitions in this section apply throughout this section
unless the context clearly requires otherwise.
(a) "Department" means the department of ecology.
(b) "Low-impact development" means a storm water management and
land use strategy applied, where feasible, at the parcel and
subdivision, or drainage area, level that emphasizes conservation and
use of on-site natural features integrated with engineered, small-scale
hydrologic controls to more closely mimic predevelopment hydrologic
functions.
(c) "Retrofit" means the renovation of existing development to
improve or eliminate storm water problems associated with the site or
drainage area.
NEW SECTION. Sec. 1705 A new section is added to chapter 46.68
RCW to read as follows:
(1) The department of transportation must use taxes deposited in
the motor vehicle account under RCW 82.21.030(2)(b) to fund activities
or projects that address contamination of storm water related to
transportation infrastructure through the implementation of the
department of transportation's national pollutant discharge elimination
system programs permitted under chapter 90.48 RCW. Activities and
projects that may be supported with these funds include, but are not
limited to: Construction, operation, inspection, monitoring, and
maintenance of storm water facilities; purchase, operation, and
maintenance of vactor trucks and vactor decant facilities; purchase,
maintenance, and operation of storm water management inventory,
mapping, and information systems; storm water pollution prevention plan
development and implementation; and storm water training. For the
purposes of this section, "storm water facilities" includes, but is not
limited to, ponds, biofiltration swales, storm water treatment tanks,
detention vaults, oil water separators, dry wells, catch basins, and
filters.
(2) The taxes deposited in the motor vehicle account under RCW
82.21.030(2)(b) may not be used for construction of storm water
facilities associated with new road construction. For purposes of this
section, "new roads" includes roads that are new alignments. Roads
that add to or replace an existing roadway are not "new roads."
(3) Beginning January 1, 2011, the department of transportation
must deliver a biennial report describing the use of the funds to the
governor and the appropriate legislative committees.
NEW SECTION. Sec. 1706 A new section is added to chapter 90.71
RCW to read as follows:
Consistent with RCW 90.71.340, the Puget Sound partnership must use
taxes deposited in the Puget Sound recovery account as provided under
RCW 82.21.030(2)(b) to fund activities or capital projects that are
consistent with the prioritization of the 2020 action agenda.
NEW SECTION. Sec. 1707 A new section is added to chapter 90.48
RCW to read as follows:
(1) The water quality action account is created in the state
treasury. Receipts from the tax imposed under RCW 82.21.030(1)(b) must
be deposited in the account as provided in RCW 82.21.030. Moneys in
the water quality action account are allocated to the department of
ecology and may be spent only after appropriation. The account may not
be used to fund specific state activities that are required to be
funded through fees paid by state and federal water quality permittees.
(2) Moneys in the water quality action account may be used only for
state responsibilities to carry out the purposes of this chapter to:
Prevent pollution of streams, rivers, aquifers, marine receiving
waters, and drinking water; prevent beach and shellfish bed closures
due to polluted surface runoff; and protect fish and wildlife habitat
from polluted surface runoff. More specifically, moneys may be used
for, but not limited to, the following purposes:
(a) Creation and maintenance of a storm water technology center to
assist businesses and governmental entities by developing resources for
testing, monitoring, adopting, and implementing new clean water
practices and technologies;
(b) Improved storm water research, data management, and monitoring;
(c) Development of clean water guidance and best management
practices for nonpermitted surface runoff activities; and
(d) Improved source control actions, such as collaboration with
local governments to provide local source control inspectors.
Sec. 1801 RCW 82.04.050 and 2009 c 563 s 301 and 2009 c 535 s 301
are each reenacted and amended to read as follows:
(1) "Sale at retail" or "retail sale" means every sale of tangible
personal property (including articles produced, fabricated, or
imprinted) to all persons irrespective of the nature of their business
and including, among others, without limiting the scope hereof, persons
who install, repair, clean, alter, improve, construct, or decorate real
or personal property of or for consumers other than a sale to a person
who presents a seller's permit or uniform exemption certificate in
conformity with RCW 82.04.470 and who:
(a) Purchases for the purpose of resale as tangible personal
property in the regular course of business without intervening use by
such person, but a purchase for the purpose of resale by a regional
transit authority under RCW 81.112.300 is not a sale for resale; or
(b) Installs, repairs, cleans, alters, imprints, improves,
constructs, or decorates real or personal property of or for consumers,
if such tangible personal property becomes an ingredient or component
of such real or personal property without intervening use by such
person; or
(c) Purchases for the purpose of consuming the property purchased
in producing for sale a new article of tangible personal property or
substance, of which such property becomes an ingredient or component or
is a chemical used in processing, when the primary purpose of such
chemical is to create a chemical reaction directly through contact with
an ingredient of a new article being produced for sale; or
(d) Purchases for the purpose of consuming the property purchased
in producing ferrosilicon which is subsequently used in producing
magnesium for sale, if the primary purpose of such property is to
create a chemical reaction directly through contact with an ingredient
of ferrosilicon; or
(e) Purchases for the purpose of providing the property to
consumers as part of competitive telephone service, as defined in RCW
82.04.065. The term ((shall)) includes every sale of tangible personal
property which is used or consumed or to be used or consumed in the
performance of any activity classified as a "sale at retail" or "retail
sale" even though such property is resold or utilized as provided in
(a), (b), (c), (d), or (e) of this subsection following such use. The
term also means every sale of tangible personal property to persons
engaged in any business which is taxable under RCW 82.04.280 (2) and
(7), 82.04.290, and 82.04.2908; or
(f) Purchases for the purpose of satisfying the person's
obligations under an extended warranty as defined in subsection (7) of
this section, if such tangible personal property replaces or becomes an
ingredient or component of property covered by the extended warranty
without intervening use by such person.
(2) The term "sale at retail" or "retail sale" includes the sale of
or charge made for tangible personal property consumed and/or for labor
and services rendered in respect to the following:
(a) The installing, repairing, cleaning, altering, imprinting, or
improving of tangible personal property of or for consumers, including
charges made for the mere use of facilities in respect thereto, but
excluding charges made for the use of self-service laundry facilities,
and also excluding sales of laundry service to nonprofit health care
facilities, and excluding services rendered in respect to live animals,
birds and insects;
(b) The constructing, repairing, decorating, or improving of new or
existing buildings or other structures under, upon, or above real
property of or for consumers, including the installing or attaching of
any article of tangible personal property therein or thereto, whether
or not such personal property becomes a part of the realty by virtue of
installation, and ((shall)) also includes the sale of services or
charges made for the clearing of land and the moving of earth excepting
the mere leveling of land used in commercial farming or agriculture;
(c) The constructing, repairing, or improving of any structure
upon, above, or under any real property owned by an owner who conveys
the property by title, possession, or any other means to the person
performing such construction, repair, or improvement for the purpose of
performing such construction, repair, or improvement and the property
is then reconveyed by title, possession, or any other means to the
original owner;
(d) The cleaning, fumigating, razing, or moving of existing
buildings or structures, but may not include the charge made for
janitorial services; and for purposes of this section the term
"janitorial services" shall mean those cleaning and caretaking services
ordinarily performed by commercial janitor service businesses
including, but not limited to, wall and window washing, floor cleaning
and waxing, and the cleaning in place of rugs, drapes and upholstery.
The term "janitorial services" does not include painting, papering,
repairing, furnace or septic tank cleaning, snow removal or
sandblasting;
(e) Automobile towing and similar automotive transportation
services, but not in respect to those required to report and pay taxes
under chapter 82.16 RCW;
(f) The furnishing of lodging and all other services by a hotel,
rooming house, tourist court, motel, trailer camp, and the granting of
any similar license to use real property, as distinguished from the
renting or leasing of real property, and it is presumed that the
occupancy of real property for a continuous period of one month or more
constitutes a rental or lease of real property and not a mere license
to use or enjoy the same. For the purposes of this subsection, it
shall be presumed that the sale of and charge made for the furnishing
of lodging for a continuous period of one month or more to a person is
a rental or lease of real property and not a mere license to enjoy the
same;
(g) The installing, repairing, altering, or improving of digital
goods for consumers;
(h) Persons taxable under (a), (b), (c), (d), (e), (f), and (g) of
this subsection when such sales or charges are for property, labor and
services which are used or consumed in whole or in part by such persons
in the performance of any activity defined as a "sale at retail" or
"retail sale" even though such property, labor and services may be
resold after such use or consumption. Nothing contained in this
subsection ((shall)) may be construed to modify subsection (1) of this
section and nothing contained in subsection (1) of this section may be
construed to modify this subsection.
(3) The term "sale at retail" or "retail sale" includes the sale of
or charge made for personal, business, or professional services
including amounts designated as interest, rents, fees, admission, and
other service emoluments however designated, received by persons
engaging in the following business activities:
(a) Amusement and recreation services including but not limited to
golf, pool, billiards, skating, bowling, ski lifts and tows, day trips
for sightseeing purposes, and others, when provided to consumers;
(b) Abstract, title insurance, and escrow services;
(c) Credit bureau services;
(d) Automobile parking and storage garage services;
(e) Landscape maintenance and horticultural services but excluding
(i) horticultural services provided to farmers and (ii) pruning,
trimming, repairing, removing, and clearing of trees and brush near
electric transmission or distribution lines or equipment, if performed
by or at the direction of an electric utility;
(f) Service charges associated with tickets to professional
sporting events; and
(g) The following personal services: Physical fitness services,
tanning salon services, tattoo parlor services, steam bath services,
turkish bath services, escort services, and dating services.
(4)(a) The term also includes:
(i) The renting or leasing of tangible personal property to
consumers; and
(ii) Providing tangible personal property along with an operator
for a fixed or indeterminate period of time. A consideration of this
is that the operator is necessary for the tangible personal property to
perform as designed. For the purpose of this subsection (4)(a)(ii), an
operator must do more than maintain, inspect, or set up the tangible
personal property.
(b) The term does not include the renting or leasing of tangible
personal property where the lease or rental is for the purpose of
sublease or subrent.
(5) The term also includes the providing of "competitive telephone
service," "telecommunications service," or "ancillary services," as
those terms are defined in RCW 82.04.065, to consumers.
(6)(a) The term also includes the sale of prewritten computer
software other than a sale to a person who presents a seller's permit
or uniform exemption certificate in conformity with RCW 82.04.470,
regardless of the method of delivery to the end user. For purposes of
this subsection (6)(a), the sale of prewritten computer software
includes the sale of or charge made for a key or an enabling or
activation code, where the key or code is required to activate
prewritten computer software and put the software into use. There is
no separate sale of the key or code from the prewritten computer
software, regardless of how the sale may be characterized by the vendor
or by the purchaser.
The term "retail sale" does not include the sale of or charge made
for:
(i) Custom software; or
(ii) The customization of prewritten computer software.
(b) The term also includes the charge made to consumers for the
right to access and use prewritten computer software, where possession
of the software is maintained by the seller or a third party,
regardless of whether the charge for the service is on a per use, per
user, per license, subscription, or some other basis.
(7) The term also includes the sale of or charge made for an
extended warranty to a consumer. For purposes of this subsection,
"extended warranty" means an agreement for a specified duration to
perform the replacement or repair of tangible personal property at no
additional charge or a reduced charge for tangible personal property,
labor, or both, or to provide indemnification for the replacement or
repair of tangible personal property, based on the occurrence of
specified events. The term "extended warranty" does not include an
agreement, otherwise meeting the definition of extended warranty in
this subsection, if no separate charge is made for the agreement and
the value of the agreement is included in the sales price of the
tangible personal property covered by the agreement. For purposes of
this subsection, "sales price" has the same meaning as in RCW
82.08.010.
(8)(a) The term also includes the following sales to consumers of
digital goods, digital codes, and digital automated services:
(i) Sales in which the seller has granted the purchaser the right
of permanent use;
(ii) Sales in which the seller has granted the purchaser a right of
use that is less than permanent;
(iii) Sales in which the purchaser is not obligated to make
continued payment as a condition of the sale; and
(iv) Sales in which the purchaser is obligated to make continued
payment as a condition of the sale.
(b) A retail sale of digital goods, digital codes, or digital
automated services under this subsection (8) includes any services
provided by the seller exclusively in connection with the digital
goods, digital codes, or digital automated services, whether or not a
separate charge is made for such services.
(c) For purposes of this subsection, "permanent" means perpetual or
for an indefinite or unspecified length of time. A right of permanent
use is presumed to have been granted unless the agreement between the
seller and the purchaser specifies or the circumstances surrounding the
transaction suggest or indicate that the right to use terminates on the
occurrence of a condition subsequent.
(9) The term does not include the sale of or charge made for labor
and services rendered in respect to the building, repairing, or
improving of any street, place, road, highway, easement, right-of-way,
mass public transportation terminal or parking facility, bridge,
tunnel, or trestle which is owned by a municipal corporation or
political subdivision of the state or by the United States and which is
used or to be used primarily for foot or vehicular traffic including
mass transportation vehicles of any kind.
(10) The term also does not include sales of:
(a) Chemical sprays or washes ((to persons for the purpose of
postharvest treatment of fruit for the prevention of scald, fungus,
mold, or decay, nor does it include sales of)), fertilizer, and spray
materials as provided in section 1803 of this act; and
(b) Feed, seed, seedlings, ((fertilizer,)) and agents for enhanced
pollination including insects such as bees((, and spray materials)) to:
(((a))) (i) Persons who participate in the federal conservation
reserve program, the environmental quality incentives program, the
wetlands reserve program, ((and)) or the wildlife habitat incentives
program, or their successors administered by the United States
department of agriculture;
(((b))) (ii) Farmers for the purpose of producing for sale any
agricultural product; and
(((c))) (iii) Farmers acting under cooperative habitat development
or access contracts with an organization exempt from federal income tax
under ((Title)) 26 U.S.C. Sec. 501(c)(3) of the federal internal
revenue code or the Washington state department of fish and wildlife to
produce or improve wildlife habitat on land that the farmer owns or
leases.
(11) The term does not include the sale of or charge made for labor
and services rendered in respect to the constructing, repairing,
decorating, or improving of new or existing buildings or other
structures under, upon, or above real property of or for the United
States, any instrumentality thereof, or a county or city housing
authority created pursuant to chapter 35.82 RCW, including the
installing, or attaching of any article of tangible personal property
therein or thereto, whether or not such personal property becomes a
part of the realty by virtue of installation. Nor does the term
include the sale of services or charges made for the clearing of land
and the moving of earth of or for the United States, any
instrumentality thereof, or a county or city housing authority. Nor
does the term include the sale of services or charges made for cleaning
up for the United States, or its instrumentalities, radioactive waste
and other by-products of weapons production and nuclear research and
development.
(12) The term does not include the sale of or charge made for
labor, services, or tangible personal property pursuant to agreements
providing maintenance services for bus, rail, or rail fixed guideway
equipment when a regional transit authority is the recipient of the
labor, services, or tangible personal property, and a transit agency,
as defined in RCW 81.104.015, performs the labor or services.
Sec. 1802 RCW 82.04.050 and 2009 c 563 s 301 and 2009 c 535 s 301
are each reenacted and amended to read as follows:
(1) "Sale at retail" or "retail sale" means every sale of tangible
personal property (including articles produced, fabricated, or
imprinted) to all persons irrespective of the nature of their business
and including, among others, without limiting the scope hereof, persons
who install, repair, clean, alter, improve, construct, or decorate real
or personal property of or for consumers other than a sale to a person
who presents a seller's permit or uniform exemption certificate in
conformity with RCW 82.04.470 and who:
(a) Purchases for the purpose of resale as tangible personal
property in the regular course of business without intervening use by
such person, but a purchase for the purpose of resale by a regional
transit authority under RCW 81.112.300 is not a sale for resale; or
(b) Installs, repairs, cleans, alters, imprints, improves,
constructs, or decorates real or personal property of or for consumers,
if such tangible personal property becomes an ingredient or component
of such real or personal property without intervening use by such
person; or
(c) Purchases for the purpose of consuming the property purchased
in producing for sale a new article of tangible personal property or
substance, of which such property becomes an ingredient or component or
is a chemical used in processing, when the primary purpose of such
chemical is to create a chemical reaction directly through contact with
an ingredient of a new article being produced for sale; or
(d) Purchases for the purpose of consuming the property purchased
in producing ferrosilicon which is subsequently used in producing
magnesium for sale, if the primary purpose of such property is to
create a chemical reaction directly through contact with an ingredient
of ferrosilicon; or
(e) Purchases for the purpose of providing the property to
consumers as part of competitive telephone service, as defined in RCW
82.04.065. The term shall include every sale of tangible personal
property which is used or consumed or to be used or consumed in the
performance of any activity classified as a "sale at retail" or "retail
sale" even though such property is resold or utilized as provided in
(a), (b), (c), (d), or (e) of this subsection following such use. The
term also means every sale of tangible personal property to persons
engaged in any business which is taxable under RCW 82.04.280 (2) and
(7), 82.04.290, and 82.04.2908; or
(f) Purchases for the purpose of satisfying the person's
obligations under an extended warranty as defined in subsection (7) of
this section, if such tangible personal property replaces or becomes an
ingredient or component of property covered by the extended warranty
without intervening use by such person.
(2) The term "sale at retail" or "retail sale" includes the sale of
or charge made for tangible personal property consumed and/or for labor
and services rendered in respect to the following:
(a) The installing, repairing, cleaning, altering, imprinting, or
improving of tangible personal property of or for consumers, including
charges made for the mere use of facilities in respect thereto, but
excluding charges made for the use of self-service laundry facilities,
and also excluding sales of laundry service to nonprofit health care
facilities, and excluding services rendered in respect to live animals,
birds and insects;
(b) The constructing, repairing, decorating, or improving of new or
existing buildings or other structures under, upon, or above real
property of or for consumers, including the installing or attaching of
any article of tangible personal property therein or thereto, whether
or not such personal property becomes a part of the realty by virtue of
installation, and ((shall)) also includes the sale of services or
charges made for the clearing of land and the moving of earth excepting
the mere leveling of land used in commercial farming or agriculture;
(c) The constructing, repairing, or improving of any structure
upon, above, or under any real property owned by an owner who conveys
the property by title, possession, or any other means to the person
performing such construction, repair, or improvement for the purpose of
performing such construction, repair, or improvement and the property
is then reconveyed by title, possession, or any other means to the
original owner;
(d) The cleaning, fumigating, razing, or moving of existing
buildings or structures, but may not include the charge made for
janitorial services; and for purposes of this section the term
"janitorial services" shall mean those cleaning and caretaking services
ordinarily performed by commercial janitor service businesses
including, but not limited to, wall and window washing, floor cleaning
and waxing, and the cleaning in place of rugs, drapes and upholstery.
The term "janitorial services" does not include painting, papering,
repairing, furnace or septic tank cleaning, snow removal or
sandblasting;
(e) Automobile towing and similar automotive transportation
services, but not in respect to those required to report and pay taxes
under chapter 82.16 RCW;
(f) The furnishing of lodging and all other services by a hotel,
rooming house, tourist court, motel, trailer camp, and the granting of
any similar license to use real property, as distinguished from the
renting or leasing of real property, and it is presumed that the
occupancy of real property for a continuous period of one month or more
constitutes a rental or lease of real property and not a mere license
to use or enjoy the same. For the purposes of this subsection, it
((shall be)) is presumed that the sale of and charge made for the
furnishing of lodging for a continuous period of one month or more to
a person is a rental or lease of real property and not a mere license
to enjoy the same;
(g) The installing, repairing, altering, or improving of digital
goods for consumers;
(h) Persons taxable under (a), (b), (c), (d), (e), (f), and (g) of
this subsection when such sales or charges are for property, labor and
services which are used or consumed in whole or in part by such persons
in the performance of any activity defined as a "sale at retail" or
"retail sale" even though such property, labor and services may be
resold after such use or consumption. Nothing contained in this
subsection ((shall)) may be construed to modify subsection (1) of this
section and nothing contained in subsection (1) of this section may be
construed to modify this subsection.
(3) The term "sale at retail" or "retail sale" includes the sale of
or charge made for personal, business, or professional services
including amounts designated as interest, rents, fees, admission, and
other service emoluments however designated, received by persons
engaging in the following business activities:
(a) Amusement and recreation services including but not limited to
golf, pool, billiards, skating, bowling, ski lifts and tows, day trips
for sightseeing purposes, and others, when provided to consumers;
(b) Abstract, title insurance, and escrow services;
(c) Credit bureau services;
(d) Automobile parking and storage garage services;
(e) Landscape maintenance and horticultural services but excluding
(i) horticultural services provided to farmers and (ii) pruning,
trimming, repairing, removing, and clearing of trees and brush near
electric transmission or distribution lines or equipment, if performed
by or at the direction of an electric utility;
(f) Service charges associated with tickets to professional
sporting events; and
(g) The following personal services: Physical fitness services,
tanning salon services, tattoo parlor services, steam bath services,
turkish bath services, escort services, and dating services.
(4)(a) The term also includes:
(i) The renting or leasing of tangible personal property to
consumers; and
(ii) Providing tangible personal property along with an operator
for a fixed or indeterminate period of time. A consideration of this
is that the operator is necessary for the tangible personal property to
perform as designed. For the purpose of this subsection (4)(a)(ii), an
operator must do more than maintain, inspect, or set up the tangible
personal property.
(b) The term does not include the renting or leasing of tangible
personal property where the lease or rental is for the purpose of
sublease or subrent.
(5) The term also includes the providing of "competitive telephone
service," "telecommunications service," or "ancillary services," as
those terms are defined in RCW 82.04.065, to consumers.
(6)(a) The term also includes the sale of prewritten computer
software other than a sale to a person who presents a seller's permit
or uniform exemption certificate in conformity with RCW 82.04.470,
regardless of the method of delivery to the end user. For purposes of
this subsection (6)(a), the sale of prewritten computer software
includes the sale of or charge made for a key or an enabling or
activation code, where the key or code is required to activate
prewritten computer software and put the software into use. There is
no separate sale of the key or code from the prewritten computer
software, regardless of how the sale may be characterized by the vendor
or by the purchaser.
The term "retail sale" does not include the sale of or charge made
for:
(i) Custom software; or
(ii) The customization of prewritten computer software.
(b) The term also includes the charge made to consumers for the
right to access and use prewritten computer software, where possession
of the software is maintained by the seller or a third party,
regardless of whether the charge for the service is on a per use, per
user, per license, subscription, or some other basis.
(7) The term also includes the sale of or charge made for an
extended warranty to a consumer. For purposes of this subsection,
"extended warranty" means an agreement for a specified duration to
perform the replacement or repair of tangible personal property at no
additional charge or a reduced charge for tangible personal property,
labor, or both, or to provide indemnification for the replacement or
repair of tangible personal property, based on the occurrence of
specified events. The term "extended warranty" does not include an
agreement, otherwise meeting the definition of extended warranty in
this subsection, if no separate charge is made for the agreement and
the value of the agreement is included in the sales price of the
tangible personal property covered by the agreement. For purposes of
this subsection, "sales price" has the same meaning as in RCW
82.08.010.
(8)(a) The term also includes the following sales to consumers of
digital goods, digital codes, and digital automated services:
(i) Sales in which the seller has granted the purchaser the right
of permanent use;
(ii) Sales in which the seller has granted the purchaser a right of
use that is less than permanent;
(iii) Sales in which the purchaser is not obligated to make
continued payment as a condition of the sale; and
(iv) Sales in which the purchaser is obligated to make continued
payment as a condition of the sale.
(b) A retail sale of digital goods, digital codes, or digital
automated services under this subsection (8) includes any services
provided by the seller exclusively in connection with the digital
goods, digital codes, or digital automated services, whether or not a
separate charge is made for such services.
(c) For purposes of this subsection, "permanent" means perpetual or
for an indefinite or unspecified length of time. A right of permanent
use is presumed to have been granted unless the agreement between the
seller and the purchaser specifies or the circumstances surrounding the
transaction suggest or indicate that the right to use terminates on the
occurrence of a condition subsequent.
(9) The term does not include the sale of or charge made for labor
and services rendered in respect to the building, repairing, or
improving of any street, place, road, highway, easement, right-of-way,
mass public transportation terminal or parking facility, bridge,
tunnel, or trestle which is owned by a municipal corporation or
political subdivision of the state or by the United States and which is
used or to be used primarily for foot or vehicular traffic including
mass transportation vehicles of any kind.
(10) The term also does not include sales of:
(a) Chemical sprays or washes ((to persons for the purpose of
postharvest treatment of fruit for the prevention of scald, fungus,
mold, or decay, nor does it include sales of)), fertilizer, and spray
materials as provided in section 1804 of this act; and
(b) Feed, seed, seedlings, ((fertilizer,)) and agents for enhanced
pollination including insects such as bees((, and spray materials)) to:
(((a))) (i) Persons who participate in the federal conservation
reserve program, the environmental quality incentives program, the
wetlands reserve program, ((and)) or the wildlife habitat incentives
program, or their successors administered by the United States
department of agriculture;
(((b))) (ii) Farmers for the purpose of producing for sale any
agricultural product; and
(((c))) (iii) Farmers acting under cooperative habitat development
or access contracts with an organization exempt from federal income tax
under ((Title)) 26 U.S.C. Sec. 501(c)(3) of the federal internal
revenue code or the Washington state department of fish and wildlife to
produce or improve wildlife habitat on land that the farmer owns or
leases.
(11) The term does not include the sale of or charge made for labor
and services rendered in respect to the constructing, repairing,
decorating, or improving of new or existing buildings or other
structures under, upon, or above real property of or for the United
States, any instrumentality thereof, or a county or city housing
authority created pursuant to chapter 35.82 RCW, including the
installing, or attaching of any article of tangible personal property
therein or thereto, whether or not such personal property becomes a
part of the realty by virtue of installation. Nor does the term
include the sale of services or charges made for the clearing of land
and the moving of earth of or for the United States, any
instrumentality thereof, or a county or city housing authority. Nor
does the term include the sale of services or charges made for cleaning
up for the United States, or its instrumentalities, radioactive waste
and other by-products of weapons production and nuclear research and
development.
(12) The term does not include the sale of or charge made for
labor, services, or tangible personal property pursuant to agreements
providing maintenance services for bus, rail, or rail fixed guideway
equipment when a regional transit authority is the recipient of the
labor, services, or tangible personal property, and a transit agency,
as defined in RCW 81.104.015, performs the labor or services.
NEW SECTION. Sec. 1803 A new section is added to chapter 82.04
RCW to read as follows:
(1) As provided by RCW 82.04.050(10), the term "sale at retail" or
"retail sale" does not include sales of:
(a) Registered chemical sprays or washes to persons for the purpose
of postharvest treatment of fruit for the prevention of scald, fungus,
mold, or decay; and
(b) Registered fertilizer and spray materials to:
(i) Persons who participate in the federal conservation reserve
program, the environmental quality incentives program, the wetlands
reserve program, or the wildlife habitat incentives program, or their
successors administered by the United States department of agriculture;
(ii) Farmers for the purpose of producing for sale any agricultural
product; and
(iii) Farmers acting under cooperative habitat development or
access contracts with an organization exempt from federal income tax
under 26 U.S.C. Sec. 501(c)(3) of the federal internal revenue code or
the Washington state department of fish and wildlife to produce or
improve wildlife habitat on land that the farmer owns or leases.
(2) The definitions in this subsection apply to this section:
(a) "Brand name materials list" means a list established by the
state department of agriculture of materials allowed for use in organic
production, processing, or handling under standards of the national
organic program.
(b) "National organic program" means a program authorized by the
organic foods production act of 1990, as amended, 7 U.S.C. Sec. 6501 et
seq., and the rules adopted thereunder for agricultural products
marketed and labeled using the term "organic" or a derivative of the
term "organic."
(c) "Registered" means registration by the state department of
agriculture and inclusion in the brand name materials list as provided
under section 9, chapter . . . ([House Bill No. 2460] [Senate Bill No.
6228]), Laws of 2010.
NEW SECTION. Sec. 1804 A new section is added to chapter 82.04
RCW to read as follows:
(1) As provided by RCW 82.04.050(10), the term "sale at retail" or
"retail sale" does not include sales of:
(a) Listed chemical sprays or washes to persons for the purpose of
postharvest treatment of fruit for the prevention of scald, fungus,
mold, or decay; and
(b) Listed fertilizer and spray materials to:
(i) Persons who participate in the federal conservation reserve
program, the environmental quality incentives program, the wetlands
reserve program, or the wildlife habitat incentives program, or their
successors administered by the United States department of agriculture;
(ii) Farmers for the purpose of producing for sale any agricultural
product; and
(iii) Farmers acting under cooperative habitat development or
access contracts with an organization exempt from federal income tax
under 26 U.S.C. Sec. 501(c)(3) of the federal internal revenue code or
the Washington state department of fish and wildlife to produce or
improve wildlife habitat on land that the farmer owns or leases.
(2) The definitions in this subsection apply to this section:
(a) "Listed" means inclusion in the OMRI products list published by
the organic materials review institute as of July 1, 2010, or such
subsequent date as the department may provide by rule, consistent with
the purposes of this section.
(b) "National organic program" means a program authorized by the
organic foods production act of 1990, as amended, 7 U.S.C. Sec. 6501 et
seq., and the rules adopted thereunder for agricultural products
marketed and labeled using the term "organic" or a derivative of the
term "organic."
(c) "OMRI products list" means a directory of products that the
organic materials review institute has reviewed and determined are
allowed for use in organic production, processing, or handling under
standards of the national organic program.
(d) "Organic materials review institute" means an organization
exempt from tax under 26 U.S.C. Sec. 501(c)(3) of the federal internal
revenue code that provides a third-party review of materials that are
allowed for use in organic production, processing, or handling under
standards of the national organic program.
NEW SECTION. Sec. 1901 The following acts or parts of acts are
each repealed:
(1) RCW 82.08.811 (Exemptions -- Coal used at coal-fired thermal
electric generation facility -- Application -- Demonstration of progress in
air pollution control -- Notice of emissions violations -- Reapplication--Payments on cessation of operation) and 1997 c 368 s 4; and
(2) RCW 82.12.811 (Exemptions -- Coal used at coal-fired thermal
electric generation facility -- Application -- Demonstration of progress in
air pollution control -- Notice of emissions violations -- Reapplication--Payments on cessation of operation) and 1997 c 368 s 6.
Sec. 2001 RCW 82.64.010 and 1994 sp.s. c 7 s 905 are each amended
to read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Carbonated beverage" has its ordinary meaning and includes any
nonalcoholic liquid intended for human consumption which contains
carbon dioxide, whether carbonation is obtained by natural or
artificial means.
(2) "Previously taxed carbonated beverage or syrup" means a
carbonated beverage or syrup in respect to which a tax has been paid
under this chapter. A "previously taxed carbonated beverage" includes
carbonated beverages in respect to which a tax has been paid under this
chapter on the carbonated beverage or on the syrup in the carbonated
beverage.
(3) "Syrup" means a concentrated liquid which is added to
carbonated water to produce a carbonated beverage.
(4) Except for terms defined in this section, the definitions in
chapters 82.04, 82.08, and 82.12 RCW apply to this chapter.
Sec. 2002 RCW 82.64.020 and 2009 c 479 s 72 are each amended to
read as follows:
(1) A tax is imposed on each sale at wholesale of a carbonated
beverage or syrup in this state. The rate of the tax ((shall be)) is
equal to 0.4167 cents per ounce for carbonated beverages and one dollar
per gallon. Fractional amounts ((shall)) must be taxed proportionally.
(2) A tax is imposed on each sale at retail of a carbonated
beverage or syrup in this state. The rate of the tax ((shall be)) is
equal to the rate imposed under subsection (1) of this section.
(3)(a) Moneys collected under this chapter ((shall)) on the sale of
syrup must be deposited in the state general fund.
(b) Moneys collected under this chapter on the sale of carbonated
beverages must be deposited in the general fund.
(4) Chapter 82.32 RCW applies to the taxes imposed in this chapter.
The tax due dates, reporting periods, and return requirements
applicable to chapter 82.04 RCW apply equally to the taxes imposed in
this chapter.
Sec. 2003 RCW 82.64.030 and 1994 sp.s. c 7 s 907 are each amended
to read as follows:
The following are exempt from the taxes imposed in this chapter:
(1) Any successive sale of a previously taxed carbonated beverage
or syrup.
(2) Any carbonated beverage or syrup that is transferred to a point
outside the state for use outside the state. The department ((shall))
must provide by rule appropriate procedures and exemption certificates
for the administration of this exemption.
(3) Any sale at wholesale of a trademarked carbonated beverage or
syrup by any person to a person commonly known as a bottler who is
appointed by the owner of the trademark to manufacture, distribute, and
sell such trademarked carbonated beverage or syrup within a specified
geographic territory.
(((4) Any sale of syrup in respect to which a tax on the privilege
of possession was paid under this chapter before June 1, 1991.))
Sec. 2004 RCW 82.64.040 and 1994 sp.s. c 7 s 908 are each amended
to read as follows:
(1) Credit ((shall be)) is allowed, in accordance with rules of the
department, against the taxes imposed in this chapter for any
carbonated beverage or syrup tax paid to another state with respect to
the same carbonated beverage or syrup. The amount of the credit
((shall)) may not exceed the tax liability arising under this chapter
with respect to that carbonated beverage or syrup.
(2) For the purpose of this section:
(a) "Carbonated beverage or syrup tax" means a tax:
(i) That is imposed on the sale at wholesale of carbonated
beverages or syrup and that is not generally imposed on other
activities or privileges; and
(ii) That is measured by the volume of the carbonated beverage or
syrup.
(b) "State" means (i) a state of the United States other than
Washington, or any political subdivision of such other state, (ii) the
District of Columbia, and (iii) any foreign country or political
subdivision thereof.
NEW SECTION. Sec. 2101 RCW 82.04.062 ("Sale at wholesale," "sale
at retail" excludes sale of precious metal bullion and monetized
bullion -- Computation of tax) and 1985 c 471 s 5 are each repealed.
NEW SECTION. Sec. 2102 The repeal in section 2101 of this act
does not affect any existing right acquired or liability or obligation
incurred under the statute repealed or under any rule or order adopted
under that statute nor does it affect any proceeding instituted under
the repealed statute.
NEW SECTION. Sec. 2103 A new section is added to chapter 82.08
RCW to read as follows:
(1) The tax levied by RCW 82.08.020 does not apply to the sale of
precious metal bullion or monetized bullion.
(2) The definitions in this subsection apply to this section.
(a) "Precious metal bullion" means any precious metal that has been
put through a process of smelting or refining, including, but not
limited to, gold, silver, platinum, rhodium, and palladium, and which
is in such state or condition that its value depends upon its contents
and not upon its form.
(b) "Monetized bullion" means coins or other forms of money
manufactured from gold, silver, or other metals and used as a medium of
exchange under the laws of this state, the United States, or any
foreign nation, but does not include coins or money sold to be
manufactured into jewelry or works of art.
NEW SECTION. Sec. 2104 A new section is added to chapter 82.12
RCW to read as follows:
(1) The provisions of this chapter do not apply with respect to the
use of precious metal bullion or monetized bullion.
(2) The definitions in section 2103 of this act apply to this
section.
NEW SECTION. Sec. 2201 (1) Except as provided in subsection (2)
of this section, if any provision of sections 101 through 108 of this
act or its application to any person or circumstance is held invalid,
the remainder of sections 101 through 108 of this act or the
application of the provision to other persons or circumstances is not
affected.
(2) If a court of competent jurisdiction, in a final judgment not
subject to appeal, adjudges any provision of section 104(1)(c) of this
act unconstitutional or otherwise invalid, sections 101 through 108 of
this act are null and void in their entirety.
NEW SECTION. Sec. 2202 Sections 101 through 108 of this act
apply with respect to gross income of the business, as defined in RCW
82.04.080, including gross income from royalties as defined in RCW
82.04.2907, generated on and after July 1, 2010. For purposes of
calculating the thresholds in section 104(1)(c) of this act for the
2010 tax year, property, payroll, and receipts are based on the entire
2010 tax year.
NEW SECTION. Sec. 2203 Sections 201 through 213 of this act must
be construed liberally to effectuate the legislature's intent to ensure
that all businesses and individuals pay their fair share of taxes.
NEW SECTION. Sec. 2204 (1) Except as provided in subsection (2)
of this section, section 201 of this act applies to tax periods
beginning January 1, 2006.
(2) Section 201 of this act does not apply to any tax periods
ending before July 1, 2010, that were included in a completed field
audit conducted by the department.
NEW SECTION. Sec. 2205 Sections 502 and 802 of this act apply
both retroactively and prospectively.
NEW SECTION. Sec. 2206 In accordance with Article VIII, section
5 of the state Constitution, sections 802 and 2205 of this act do not
authorize refunds of business and occupation tax validly collected
before July 1, 2010, on amounts received by an individual from a
corporation as compensation for serving as a member of that
corporation's board of directors.
NEW SECTION. Sec. 2207 Section 502 of this act does not affect
any final judgments, not subject to appeal, entered by a court of
competent jurisdiction before the effective date of this section.
NEW SECTION. Sec. 2208 Sections 1101 and 1102 of this act apply
to transfers or conveyances as described in RCW 82.45.010(3)(i)
occurring on and after April 1, 2010.
NEW SECTION. Sec. 2209 Section 1601 of this act applies only
with respect to tax liability incurred under chapter 82.24 RCW on or
after July 1, 2010, for the sale, use, consumption, handling,
possession, or distribution of cigarettes.
NEW SECTION. Sec. 2210 Section 1604(1) (a), (b), and (d) of this
act applies only with respect to tax liability incurred under chapter
82.24 RCW on or after July 1, 2010, for the sale, handling, or
distribution of cigars, little cigars, and other tobacco products.
NEW SECTION. Sec. 2211 Section 1604(1)(c), chapter . . ., Laws
of 2010 (this act) applies only with respect to tax liability incurred
under chapter 82.24 RCW on or after October 1, 2010, for the sale,
handling, or distribution of moist snuff.
NEW SECTION. Sec. 2212 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 2213 Sections 501, 502, and 2205 of this act
are necessary for the immediate preservation of the public peace,
health, or safety, or support of the state government and its existing
public institutions, and take effect immediately.
NEW SECTION. Sec. 2214 Except for sections 501, 502, 606, 1701
through 1707, and 2205 of this act, this act is necessary for the
immediate preservation of the public peace, health, or safety, or
support of the state government and its existing public institutions,
and takes effect April 1, 2010.
NEW SECTION. Sec. 2215 Sections 1701 through 1707 of this act
are necessary for the immediate preservation of the public peace,
health, or safety, or support of the state government and its existing
public institutions, and take effect May 1, 2010.
NEW SECTION. Sec. 2216 Section 605 of this act expires July 1,
2011.
NEW SECTION. Sec. 2217 Section 606 of this act takes effect July
1, 2011.
NEW SECTION. Sec. 2218 Sections 1802 and 1804 of this act take
effect July 1, 2010, if chapter . . . ([House Bill No. 2460] [Senate
Bill No. 6228]), Laws of 2010 is not enacted as of July 1, 2010.
NEW SECTION. Sec. 2219 Sections 1801 and 1803 of this act take
effect July 1, 2010, if chapter . . . ([House Bill No. 2460] [Senate
Bill No. 6228]), Laws of 2010 is enacted as of July 1, 2010.