SSB 5356 -
By Representative Dunshee
NOT CONSIDERED 04/22/2011
On page 2, line 28, after "(4)" insert "The department shall ensure
that all cougar pelts or carcasses harvested under the pilot program
authorized by this section are individually marked as having been
hunted with the aid of dogs.
(5)"
On page 3, after line 21, insert the following:
"Sec. 4 RCW 82.04.050 and 2010 c 112 s 14, 2010 c 111 s 201, and
2010 c 106 s 202 are each reenacted and amended to read as follows:
(1)(a) "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:
(i) 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
(ii) 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
(iii) Purchases for the purpose of consuming the property purchased
in producing for sale as 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
(iv) 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
(v) Purchases for the purpose of providing the property to
consumers as part of competitive telephone service, as defined in RCW
82.04.065; or
(vi) 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.
(b) The term includes every sale of tangible personal property that
is used or consumed or to be used or consumed in the performance of any
activity defined as a "sale at retail" or "retail sale" even though
such property is resold or used as provided in (a)(i) through (vi) of
this subsection following such use.
(c) The term also means every sale of tangible personal property to
persons engaged in any business that is taxable under RCW 82.04.280
(1), (2), and (7), 82.04.290, and 82.04.2908.
(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 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 does not include the charge made for
janitorial services; and for purposes of this section the term
"janitorial services" 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 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 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; and
(h) Taxidermy services when the animal subject to the service is a
cougar that was harvested with the use of dogs under the pilot program
authorized in section 1 of this act. All revenues collected under this
subsection must be deposited into the state wildlife account created in
RCW 77.12.170 and used according to the provisions of RCW 77.12.170.
(4)(a) The term also includes the renting or leasing of tangible
personal property to consumers.
(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 to a consumer, 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)(i) 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.
(ii)(A) The service described in (b)(i) of this subsection (6)
includes the right to access and use prewritten computer software to
perform data processing.
(B) For purposes of this subsection (6)(b)(ii), "data processing"
means the systematic performance of operations on data to extract the
required information in an appropriate form or to convert the data to
usable information. Data processing includes check processing, image
processing, form processing, survey processing, payroll processing,
claim processing, and similar activities.
(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 also includes the charge made for 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 (9), an operator must do more than
maintain, inspect, or set up the tangible personal property.
(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.
(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 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.
(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.
(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.
(14) The term does not include the sale for resale of any service
described in this section if the sale would otherwise constitute a
"sale at retail" and "retail sale" under this section.
Sec. 5 RCW 82.12.020 and 2010 1st sp.s. c 23 s 206 are each
amended to read as follows:
(1) There is levied and 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 acquired by 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 (h), 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 (h), 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. 6 RCW 77.12.170 and 2009 c 333 s 13 are each amended to read
as follows:
(1) There is established in the state treasury the state wildlife
account which consists of moneys received from:
(a) Rentals or concessions of the department;
(b) The sale of real or personal property held for department
purposes, unless the property is seized or recovered through a fish,
shellfish, or wildlife enforcement action;
(c) The assessment of administrative penalties, and the sale of
licenses, permits, tags, and stamps required by chapter 77.32 RCW and
RCW 77.65.490, except annual resident adult saltwater and all annual
razor clam and shellfish licenses, which shall be deposited into the
state general fund;
(d) Fees for informational materials published by the department;
(e) Fees for personalized vehicle, Wild on Washington, and
Endangered Wildlife license plates and Washington's Wildlife license
plate collection as provided in chapter ((46.16)) 46.17 RCW;
(f) Articles or wildlife sold by the director under this title;
(g) Compensation for damage to department property or wildlife
losses or contributions, gifts, or grants received under RCW 77.12.320.
However, this excludes fish and shellfish overages, and court-ordered
restitution or donations associated with any fish, shellfish, or
wildlife enforcement action, as such moneys must be deposited pursuant
to RCW 77.15.425;
(h) Excise tax on anadromous game fish collected under chapter
82.27 RCW;
(i) The department's share of revenues from auctions and raffles
authorized by the commission; ((and))
(j) The sale of watchable wildlife decals under RCW 77.32.560;
(k) Revenues generated from the taxes on taxidermy created in RCW
82.04.050 and 82.12.020.
(2) State and county officers receiving any moneys listed in
subsection (1) of this section shall deposit them in the state treasury
to be credited to the state wildlife account.
(3) All deposits to the state wildlife account from the sources
identified in subsection (1)(k) of this section must be used by the
department solely to provide payments for claims for damage to
commercial livestock under chapter 77.36 RCW when the damage is
confirmed by the department to have been caused by a cougar.
Sec. 7 RCW 82.12.035 and 2009 c 535 s 1107 are each amended to
read as follows:
A credit is allowed against the taxes imposed by this chapter upon
the use in this state of tangible personal property, extended warranty,
digital good, digital code, digital automated service, or services
defined as a retail sale in RCW 82.04.050 (2) (a) or (g), (3) (a) or
(h), or (6)(b), in the amount that the present user thereof or his or
her bailor or donor has paid a legally imposed retail sales or use tax
with respect to such property, extended warranty, digital good, digital
code, digital automated service, or service defined as a retail sale in
RCW 82.04.050 (2) (a) or (g), (3) (a) or (h), or (6)(b) to any other
state, possession, territory, or commonwealth of the United States, any
political subdivision thereof, the District of Columbia, and any
foreign country or political subdivision thereof."
Renumber the remaining section consecutively, correct any internal references accordingly, and correct the title.
EFFECT: Extends the sales and use tax to taxidermy services when the animal subject to taxidermy is a cougar harvested with the aid of dogs through the cougar hunting pilot program; dedicates all revenue generated through these sales and use taxes to the state wildlife fund to be used for the purposes of paying claims to the owners of injured or killed commercial livestock when the damage was caused by a cougar.