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54:32B-2. Definitions.
2. Unless the context in which they occur requires otherwise, the following terms when used in this act shall mean:
(a) ~Person~ includes an individual, trust, partnership, limited partnership, limited liability company, society, association, joint stock company, corporation, public corporation or public authority, estate, receiver, trustee, assignee, referee, fiduciary and any other legal entity.
(b) ~Purchase at retail~ means a purchase by any person at a retail sale.
(c) ~Purchaser~ means a person to whom a sale of personal property is made or to whom a service is furnished.
(d) ~Receipt~ means the amount of the sales price of any tangible personal property or service taxable under this act.
(e) ~Retail sale~ means any sale, lease, or rental for any purpose, other than for resale, sublease, or subrent.
(1) For the purposes of this act a sale is for ~resale, sublease, or subrent~ if it is a sale (A) for resale either as such or as converted into or as a component part of a product produced for sale by the purchaser, including the conversion of natural gas into another intermediate or end product, other than electricity or thermal energy, produced for sale by the purchaser, or (B) for use by that person in performing the services subject to tax under subsection (b) of section 3 where the property so sold becomes a physical component part of the property upon which the services are performed or where the property so sold is later actually transferred to the purchaser of the service in conjunction with the performance of the service subject to tax.
(2) For the purposes of this act, the term ~retail sale~ includes: sales of tangible personal property to all contractors, subcontractors or repairmen of materials and supplies for use by them in erecting structures for others, or building on, or otherwise improving, altering, or repairing real property of others.
(3) (Deleted by amendment, P.L.2005, c.126).
(4) The term ~retail sale~ does not include:
(A) Professional, insurance, or personal service transactions which involve the transfer of tangible personal property as an inconsequential element, for which no separate charges are made.
(B) The transfer of tangible personal property to a corporation, solely in consideration for the issuance of its stock, pursuant to a merger or consolidation effected under the laws of New Jersey or any other jurisdiction.
(C) The distribution of property by a corporation to its stockholders as a liquidating dividend.
(D) The distribution of property by a partnership to its partners in whole or partial liquidation.
(E) The transfer of property to a corporation upon its organization in consideration for the issuance of its stock.
(F) The contribution of property to a partnership in consideration for a partnership interest therein.
(G) The sale of tangible personal property where the purpose of the vendee is to hold the thing transferred as security for the performance of an obligation of the seller.
(f) ~Sale, selling or purchase~ means any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service, taxable under this act, for a consideration or any agreement therefor.
(g) ~Tangible personal property~ means personal property that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses. ~Tangible personal property~ includes electricity, water, gas, steam, and prewritten computer software.
(h) ~Use~ means the exercise of any right or power over tangible personal property by the purchaser thereof and includes, but is not limited to, the receiving, storage or any keeping or retention for any length of time, withdrawal from storage, any distribution, any installation, any affixation to real or personal property, or any consumption of such property. Use also includes the exercise of any right or power over intrastate or interstate telecommunications and prepaid calling services. Use also includes the exercise of any right or power over utility service.
(i) ~Seller~ means a person making sales, leases or rentals of personal property or services.
(1) The term ~seller~ includes:
(A) A person making sales, leases or rentals of tangible personal property or services, the receipts from which are taxed by this act;
(B) A person maintaining a place of business in the State and making sales, whether at such place of business or elsewhere, to persons within the State of tangible personal property or services, the use of which is taxed by this act;
(C) A person who solicits business either by employees, independent contractors, agents or other representatives or by distribution of catalogs or other advertising matter and by reason thereof makes sales to persons within the State of tangible personal property or services, the use of which is taxed by this act;
(D) Any other person making sales to persons within the State of tangible personal property or services, the use of which is taxed by this act, who may be authorized by the director to collect the tax imposed by this act;
(E) The State of New Jersey, any of its agencies, instrumentalities, public authorities, public corporations (including a public corporation created pursuant to agreement or compact with another state) or political subdivisions when such entity sells services or property of a kind ordinarily sold by private persons;
(F) (Deleted by amendment, P.L.2005, c.126); and
(G) A person who sells, stores, delivers or transports energy to users or customers in this State whether by mains, lines or pipes located within this State or by any other means of delivery.
(2) In addition, when in the opinion of the director it is necessary for the efficient administration of this act to treat any salesman, representative, peddler or canvasser as the agent of the seller, distributor, supervisor or employer under whom the agent operates or from whom the agent obtains tangible personal property sold by the agent or for whom the agent solicits business, the director may, in the directors@s discretion, treat such agent as the seller jointly responsible with the agent@s principal, distributor, supervisor or employer for the collection and payment over of the tax.
(j) ~Hotel~ means a building or portion of it which is regularly used and kept open as such for the lodging of guests. The term ~hotel~ includes an apartment hotel, a motel, boarding house or club, whether or not meals are served.
(k) ~Occupancy~ means the use or possession or the right to the use or possession, of any room in a hotel.
(l) ~Occupant~ means a person who, for a consideration, uses, possesses, or has the right to use or possess, any room in a hotel under any lease, concession, permit, right of access, license to use or other agreement, or otherwise.
(m) ~Permanent resident~ means any occupant of any room or rooms in a hotel for at least 90 consecutive days shall be considered a permanent resident with regard to the period of such occupancy.
(n) ~Room~ means any room or rooms of any kind in any part or portion of a hotel, which is available for or let out for any purpose other than a place of assembly.
(o) ~Admission charge~ means the amount paid for admission, including any service charge and any charge for entertainment or amusement or for the use of facilities therefor.
(p) ~Amusement charge~ means any admission charge, dues or charge of roof garden, cabaret or other similar place.
(q) ~Charge of a roof garden, cabaret or other similar place~ means any charge made for admission, refreshment, service, or merchandise at a roof garden, cabaret or other similar place.
(r) ~Dramatic or musical arts admission charge~ means any admission charge paid for admission to a theater, opera house, concert hall or other hall or place of assembly for a live, dramatic, choreographic or musical performance.
(s) ~Lessor~ means any person who is the owner, licensee, or lessee of any premises or tangible personal property which the person leases, subleases, or grants a license to use to other persons.
(t) ~Place of amusement~ means any place where any facilities for entertainment, amusement, or sports are provided.
(u) ~Casual sale~ means an isolated or occasional sale of an item of tangible personal property by a person who is not regularly engaged in the business of making retail sales of such property where the item was obtained by the person making the sale, through purchase or otherwise, for the person@s own use.
(v) ~Motor vehicle~ includes all vehicles propelled otherwise than by muscular power (excepting such vehicles as run only upon rails or tracks), trailers, semitrailers, house trailers, or any other type of vehicle drawn by a motor-driven vehicle, and motorcycles, designed for operation on the public highways.
(w) ~Persons required to collect tax~ or ~persons required to collect any tax imposed by this act~ includes: every seller of tangible personal property or services; every recipient of amusement charges; every operator of a hotel; and every seller of telecommunications. Said terms shall also include any officer or employee of a corporation or of a dissolved corporation who as such officer or employee is under a duty to act for such corporation in complying with any requirement of this act and any member of a partnership.
(x) ~Customer~ includes: every purchaser of tangible personal property or services; every patron paying or liable for the payment of any amusement charge; and every occupant of a room or rooms in a hotel.
(y) ~Property and services the use of which is subject to tax~ includes: (1) all property sold to a person within the State, whether or not the sale is made within the State, the use of which property is subject to tax under section 6 or will become subject to tax when such property is received by or comes into the possession or control of such person within the State; (2) all services rendered to a person within the State, whether or not such services are performed within the State, upon tangible personal property the use of which is subject to tax under section 6 or will become subject to tax when such property is distributed within the State or is received by or comes into possession or control of such person within the State; (3) intrastate or interstate telecommunications sourced to this State pursuant to section 29 of P.L.2005, c.126 (C.54:32B-3.4); (4) (Deleted by amendment, P.L.1995, c.184); (5) energy sold, exchanged or delivered in this State for use in this State; (6) utility service sold, exchanged or delivered in this State for use in this State; (7) direct mail processing services in connection with direct mail distributed in this State; and (8) (Deleted by amendment, P.L.2005, c.126).
(z) ~Director ~ means the Director of the Division of Taxation of the State Department of the Treasury, or any officer, employee or agency of the Division of Taxation in the Department of the Treasury duly authorized by the director (directly, or indirectly by one or more redelegations of authority) to perform the functions mentioned or described in this act.
(aa) ~Lease or rental~ means any transfer of possession or control of tangible personal property for a fixed or indeterminate term for consideration. A ~lease or rental~ may include future options to purchase or extend.
(1) ~Lease or rental~ does not include:
(A) A transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments;
(B) A transfer of possession or control of property under an agreement that requires the transfer of title upon completion of required payments and payment of an option price does not exceed the greater of $100 or one percent of the total required payments; or
(C) Providing tangible personal property along with an operator for a fixed or indeterminate period of time. A condition of this exclusion is that the operator is necessary for the equipment to perform as designed. For the purpose of this subparagraph, an operator must do more than maintain, inspect, or set-up the tangible personal property.
(2) ~Lease or rental~ does include agreements covering motor vehicles and trailers where the amount of consideration may be increased or decreased by reference to the amount realized upon sale or disposition of the property as defined in 26 U.S.C. s.7701(h)(1).
(3) The definition of ~lease or rental~ provided in this subsection shall be used for the purposes of this act regardless of whether a transaction is characterized as a lease or rental under generally accepted accounting principles, the federal Internal Revenue Code or other provisions of federal, state or local law.
(bb) (Deleted by amendment, P.L.2005, c.126).
(cc) ~Telecommunications~ means the act or privilege of originating or receiving messages or information through the use of any kind of one-way or two-way communication; including but not limited to voice, video, facsimile, teletypewriter, computer, mobile telecommunications service or any other type of communication; using electronic or electromagnetic methods, and all services and equipment provided in connection therewith or by means thereof. ~Telecommunications~ shall not include:
(1) one-way radio or television broadcasting transmissions available universally to the general public without a fee;
(2) purchases of telecommunications by a telecommunications provider for use as a component part of telecommunications provided to an ultimate retail consumer who (A) originates or terminates the taxable end-to-end communications or (B) pays charges exempt from taxation pursuant to paragraph (5) of this subsection;
(3) services provided by a person, or by that person@s wholly owned subsidiary, not engaged in the business of rendering or offering telecommunications services to the public, for private and exclusive use within its organization, provided however, that ~telecommunications~ shall include the sale of telecommunications services attributable to the excess unused telecommunications capacity of that person to another;
(4) charges in the nature of subscription fees paid by subscribers for cable television service;
(5) charges subject to the local calling rate paid by inserting coins into a coin operated telecommunications device available to the public; and
(6) purchases of telecommunications using a prepaid calling service.
(dd) ~Interstate telecommunication~ means any telecommunication that originates or terminates inside this State, including international telecommunication. In the case of mobile telecommunications service, ~interstate telecommunication~ means any mobile telecommunications service that originates in one state and terminates in another state, territory, or foreign country that is provided to a customer with a place of primary use in this State.
(ee) ~Intrastate telecommunication~ means any telecommunication that originates and terminates within this State. In the case of mobile telecommunications service, ~intrastate telecommunication~ means any mobile telecommunications service that originates and terminates within the same state that is provided to a customer with a place of primary use in this State.
(ff) ~Natural gas~ means any gaseous fuel distributed through a pipeline system.
(gg) ~Energy~ means natural gas or electricity.
(hh) ~Utility service~ means the transportation or transmission of natural gas or electricity by means of mains, wires, lines or pipes, to users or customers.
(ii) ~Self-generation unit~ means a facility located on the user@s property, or on property purchased or leased from the user by the person owning the self-generation unit and such property is contiguous to the user@s property, which generates electricity to be used only by that user on the user@s property and is not transported to the user over wires that cross a property line or public thoroughfare unless the property line or public thoroughfare merely bifurcates the user@s or self-generation unit owner@s otherwise contiguous property.
(jj) ~Co-generation facility~ means a facility the primary purpose of which is the sequential production of electricity and steam or other forms of useful energy which are used for industrial or commercial heating or cooling purposes and which is designated by the Federal Energy Regulatory Commission, or its successor, as a ~qualifying facility~ pursuant to the provisions of the ~Public Utility Regulatory Policies Act of 1978,~ Pub.L.95-617.
(kk) ~Non-utility~ means a company engaged in the sale, exchange or transfer of natural gas that was not subject to the provisions of P.L.1940, c.5 (C.54:30A-49 et seq.) prior to December 31, 1997.
(ll) ~Pre-paid calling service~ means the right to purchase exclusively telecommunications services, that must be paid for in advance, that enables the origination of calls using an access number or authorization code, whether manually or electronically dialed; provided, that the remaining amount of units of service that have been pre-paid shall be known by the service provider on a continuous basis.
(mm) ~Mobile telecommunications service~ means commercial mobile radio service, as defined in section 20.3 of title 47 of the Code of Federal Regulations as in effect on June 1, 1999.
(nn) ~Place of primary use~ means the street address representative of where the customer@s use of the mobile telecommunications service primarily occurs, which shall be the residential street address or the primary business street address of the customer and within the licensed service area of the home service provider. For the purposes of determining the primary place of use, the terms used shall have the meanings provided pursuant to the federal ~Mobile Telecommunications Sourcing Act,@@ 4 U.S.C. s.124 (Pub.L.106-252).
(oo) (1)~Sales price~ is the measure subject to sales tax and means the total amount of consideration, including cash, credit, property, and services, for which personal property or services are sold, leased, or rented, valued in money, whether received in money or otherwise, without any deduction for the following:
(A) The seller@s cost of the property sold;
(B) The cost of materials used, labor or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, and any other expense of the seller;
(C) Charges by the seller for any services necessary to complete the sale;
(D) Delivery charges, unless separately stated on the invoice, bill or similar document given to purchaser;
(E) Installation charges; and
(F) The value of exempt personal property given to the purchaser where taxable and exempt personal property have been bundled together and sold by the seller as a single product or piece of merchandise.
(2) ~Sales price~ does not include:
(A) Discounts, including cash, term, or coupons that are not reimbursed by a third party, that are allowed by a seller and taken by a purchaser on a sale;
(B) Interest, financing, and carrying charges from credit extended on the sale of personal property or services, if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser;
(C) Any taxes legally imposed directly on the consumer that are separately stated on the invoice, bill of sale, or similar document given to the purchaser;
(D) The amount of sales price for which food stamps have been properly tendered in full or part payment pursuant to the federal Food Stamp Act of 1977, Pub.L. 95-113 (7 U.S.C. s.2011 et seq.); or
(E) Credit for any trade-in of property of the same kind accepted in part payment and intended for resale if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser.
(pp) ~Purchase price~ means the measure subject to use tax and has the same meaning as ~sales price.~
(qq) ~Sales tax~ means the tax imposed on certain transactions pursuant to the provisions of the ~Sales and Use Tax Act,~ P.L.1966, c.30 (C.54:32B-1 et seq.).
(rr) ~Delivery charges~ means charges by the seller for preparation and delivery to a location designated by the purchaser of personal property or services including, but not limited to, transportation, shipping, postage, handling, crating, and packing. If a shipment includes both exempt and taxable property, the seller should allocate the delivery charge by using: (1) a percentage based on the total sales price of the taxable property compared to the total sales price of all property in the shipment; or (2) a percentage based on the total weight of the taxable property compared to the total weight of all property in the shipment.
(ss) ~Direct mail~ means printed material delivered or distributed by United States mail or other delivery service to a mass audience or to addresses on a mailing list provided by the purchaser or at the direction of the purchaser in cases in which the cost of the items are not billed directly to the recipients. ~Direct mail~ includes tangible personal property supplied directly or indirectly by the purchaser to the direct mail seller for inclusion in the package containing the printed material. ~Direct mail~ does not include multiple items of printed material delivered to a single address.
(tt) ~Streamlined Sales and Use Tax Agreement~ means the agreement entered into as governed and authorized by the ~Uniform Sales and Use Tax Administration Act,~ P.L.2001, c.431 (C.54:32B-44 et seq.).
(uu) ~Alcoholic beverages~ means beverages that are suitable for human consumption and contain one-half of one percent or more of alcohol by volume.
L.1966,c.30,s.2; amended 1968, c.106, s.1; 1972, c.27, s.1; 1980, c.61, s.1; 1987, c.254; 1989, c.123, s.1; 1990, c.40, s.1; 1993, c.10, s.1; 1995, c.184, s.1; 1997, c.162, s.17; 1998, c.99, s.1; 1999, c.248, s.1; 2002, c.45, s.1; 2005, c.126, s.1.
54:32B-2.1. Filing of list of persons excluded from tax on telecommunications; required
A person required to collect the tax imposed by subsection (f) of section 3 of P.L.1966, c.30 (C.54:32B-3) shall within 30 days of the operative date of this section, and annually as prescribed by the director thereafter, file with the director a list of the known names and addresses of persons that the person required to collect the tax provides telecommunications excluded from taxation pursuant to paragraph (2) of subsection (cc) of section 2 of P.L.1966, c.30 (C.54:32B-2).
L.1990,c.40,s.8.
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