Bill Summary – FastDemocracy

HOUSE BILL NO. 5863
     June 26, 2024, Introduced by Rep. Tisdel and referred to the Committee on Tax Policy.
           A bill to amend 1937 PA 94, entitled
    "Use tax act,"
    by amending section 2 (MCL 205.92), as amended by 2023 PA 94.
                      THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
        Sec. 2. (1) As used in this act:
        (a) "Person" means an individual, firm, partnership, joint
 venture, association, social club, fraternal organization,
 municipal or private corporation whether or not organized for
 profit, company, limited liability company, estate, trust,
 receiver, trustee, syndicate, the United States, this state,
 county, or any other group or combination acting as a unit, and
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 includes the plural as well as the singular number, unless the
 intention to give a more limited meaning is disclosed by the
 context.
       (b) "Use" means the exercise of a right or power over tangible
 personal property incident to the ownership of that property
 including transfer of the property in a transaction where
 possession is given. Converting tangible personal property acquired
 for a use exempt from the tax levied under this act to a use not
 exempt from the tax levied under this act is a taxable use.
       (c) "Storage" means a keeping or retention of property in this
 state for any purpose after the property loses its interstate
 character.
       (d) "Seller" means the person from whom a purchase is made and
 includes every person selling tangible personal property or
 services for storage, use, or other consumption in this state. If,
 in the opinion of the department, it is necessary for the efficient
 administration of this act to regard a salesperson, representative,
 peddler, or canvasser as the agent of a dealer, distributor,
 supervisor, or employer under whom the person operates or from whom
 the person obtains tangible personal property or services sold by
 the person for storage, use, or other consumption in this state,
 irrespective of whether or not the person is making the sales on
 the person's own behalf or on behalf of the dealer, distributor,
 supervisor, or employer, the department may so consider the person,
 and may consider the dealer, distributor, supervisor, or employer
 as the seller for the purpose of this act.
       (e) "Purchase" means to acquire for a consideration, whether
 the acquisition is effected by a transfer of title, of possession,
 or of both, or a license to use or consume; whether the transfer is
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 absolute or conditional, and by whatever means the transfer is
 effected; and whether consideration is a price or rental in money,
 or by way of exchange or barter. Purchase includes converting
 tangible personal property acquired for a use exempt from the tax
 levied under this act to a use not exempt from the tax levied under
 this act.
       (f) "Purchase price" or "price" means the total amount of
 consideration paid by the consumer to the seller, including cash,
 credit, property, and services, for which tangible personal
 property or services are sold, leased, or rented, valued in money,
 whether received in money or otherwise, and applies to the measure
 subject to use tax. Purchase price includes the following
 subparagraphs (i) to (vii) and excludes subparagraphs (viii) to
 (xv):(xvi):
       (i) Seller's cost of the property sold.
       (ii) Cost Except as otherwise provided in subparagraph (xvi),
 cost of materials used, labor or service cost, interest, losses,
 costs of transportation to the seller, taxes imposed on the seller
 other than taxes imposed by this act, and any other expense of the
 seller.
       (iii) Charges by the seller for any services necessary to
 complete the sale, other than the following:
       (A) An amount received or billed by the taxpayer for
 remittance to the employee as a gratuity or tip, if the gratuity or
 tip is separately identified and itemized on the guest check or
 billed to the customer.
       (B) Labor or service charges involved in maintenance and
 repair work on tangible personal property of others if separately
 itemized.
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       (iv) Except as otherwise provided in subparagraph (xv),
 delivery charges. A seller is not liable under this act for
 delivery charges allocated to the delivery of exempt property.
       (v) Except as otherwise provided in subparagraph (xv),
 installation charges.
       (vi) Except as otherwise provided in subparagraphs (xi), (xii),
 and (xiv), credit for any trade-in.
       (vii) Except as otherwise provided in subparagraph (x),
 consideration received by the seller from third parties if all of
 the following conditions are met:
       (A) The seller actually receives consideration from a party
 other than the purchaser and the consideration is directly related
 to a price reduction or discount on the sale.
       (B) The seller has an obligation to pass the price reduction
 or discount through to the purchaser.
       (C) The amount of the consideration attributable to the sale
 is fixed and determinable by the seller at the time of the sale of
 the item to the purchaser.
       (D) One of the following criteria is met:
       (I) The purchaser presents a coupon, certificate, or other
 documentation to the seller to claim a price reduction or discount
 where the coupon, certificate, or documentation is authorized,
 distributed, or granted by a third party with the understanding
 that the third party will reimburse any seller to whom the coupon,
 certificate, or documentation is presented.
       (II) The purchaser identifies himself or herself to the seller
 as a member of a group or organization entitled to a price
 reduction or discount. A preferred customer card that is available
 to any patron does not constitute membership in a group or
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 organization.
       (III) The price reduction or discount is identified as a third
 party price reduction or discount on the invoice received by the
 purchaser or on a coupon, certificate, or other documentation
 presented by the purchaser.
       (viii) Interest, financing, or 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.
       (ix) 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.
       (x) Beginning January 1, 2000, employee discounts that are
 reimbursed by a third party on sales of motor vehicles.
       (xi) Beginning November 15, 2013, credit for the agreed-upon
 value of a titled watercraft used as part payment of the purchase
 price of a new titled watercraft or used titled watercraft
 purchased from a watercraft dealer if the agreed-upon value is
 separately stated on the invoice, bill of sale, or similar document
 given to the purchaser. This subparagraph does not apply to leases
 or rentals.
       (xii) Beginning December 15, 2013, credit for the agreed-upon
 value of a motor vehicle or recreational vehicle used as part
 payment of the purchase price of a new motor vehicle or used motor
 vehicle or recreational vehicle purchased from a dealer if the
 agreed-upon value is separately stated on the invoice, bill of
 sale, or similar document given to the purchaser. This subparagraph
 does not apply to leases or rentals. Except as otherwise provided
 under subparagraph (xiv), for purposes of this subparagraph, the
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 agreed-upon value of a motor vehicle or recreational vehicle used
 as part payment is limited as follows:
       (A) Beginning December 15, 2013, subject to sub-subparagraphs
 (B) and (C), the lesser of the following:
       (I) $2,000.00.
       (II) The agreed-upon value of the motor vehicle or
 recreational vehicle used as part payment.
       (B) Beginning January 1, 2015 and each January 1 thereafter
 through December 31, 2018, the amount under sub-subparagraph (A)(I)
 is increased by an additional $500.00 each year.
       (C) Beginning January 1, 2019, subject to sub-subparagraphs
 (D) and (E), the lesser of the following:
       (I) $5,000.00.
       (II) The agreed-upon value of the motor vehicle used as part
 payment.
       (D) Beginning January 1, 2020 and each January 1 thereafter,
 the amount under sub-subparagraph (C)(I) is increased by an
 additional $1,000.00 each year.
       (E) Beginning on January 1, in the year in which the amount
 under sub-subparagraph (C)(I) exceeds $14,000.00 and each January 1
 thereafter, there is no limitation on the agreed-upon value of the
 motor vehicle used as part payment.
       (xiii) Beginning January 1, 2017, credit for the core charge
 attributable to a recycling fee, deposit, or disposal fee for a
 motor vehicle or recreational vehicle part or battery if the
 recycling fee, deposit, or disposal fee is separately stated on the
 invoice, bill of sale, or similar document given to the purchaser.
       (xiv) Beginning January 1, 2018, credit for the agreed-upon
 value of a recreational vehicle used as part payment of the
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 purchase price of a recreational vehicle purchased from a dealer if
 the agreed-upon value is separately stated on the invoice, bill of
 sale, or similar document given to the purchaser. This subparagraph
 does not apply to leases or rentals.
       (xv) Delivery or installation charges if such charges are
 separately stated on the invoice, bill of sale, or similar document
 provided to the purchaser, and the taxpayer maintains its books and
 records to show separately the transactions used to determine the
 tax levied by this act. This subdivision does not apply to delivery
 or installation charges involving or relating to the sale of
 electricity, natural gas, or artificial gas by a utility.
       (xvi) A credit card surcharge. As used in this subparagraph,
 "credit card surcharge" means a surcharge or other fee imposed for
 the use of a credit card.
       (g) "Consumer" means the person who has purchased tangible
 personal property or services for storage, use, or other
 consumption in this state and includes, but is not limited to, 1 or
 more of the following:
       (i) A person acquiring tangible personal property if engaged in
 the business of constructing, altering, repairing, or improving the
 real estate of others.
       (ii) A person who has converted tangible personal property or
 services acquired for storage, use, or consumption in this state
 that is exempt from the tax levied under this act to storage, use,
 or consumption in this state that is not exempt from the tax levied
 under this act.
       (h) "Business" means all activities engaged in by a person or
 caused to be engaged in by a person with the object of gain,
 benefit, or advantage, either direct or indirect.
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       (i) "Department" means the department of treasury.
       (j) "Tax" includes all taxes, interest, or penalties levied
 under this act.
       (k) "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 and includes electricity,
 water, gas, steam, and prewritten computer software.
       (l) "Textiles" means goods that are made of or incorporate
 woven or nonwoven fabric, including, but not limited to, clothing,
 shoes, hats, gloves, handkerchiefs, curtains, towels, sheets,
 pillows, pillowcases, tablecloths, napkins, aprons, linens, floor
 mops, floor mats, and thread. Textiles also include materials used
 to repair or construct textiles, or other goods used in the rental,
 sale, or cleaning of textiles.
       (m) "Interstate motor carrier" means a person who operates or
 causes to be operated a qualified commercial motor vehicle on a
 public road or highway in this state and at least 1 other state or
 Canadian province.
       (n) "Qualified commercial motor vehicle" means that term as
 defined in section 1(l), (m), and (n) of the motor carrier fuel tax
 act, 1980 PA 119, MCL 207.211.
       (o) "Diesel fuel" means that term as defined in section 2(q)
 of the motor fuel tax act, 2000 PA 403, MCL 207.1002.
       (p) "Sale" means a transaction by which tangible personal
 property or services are purchased or rented for storage, use, or
 other consumption in this state.
       (q) "Convert" means putting a service or tangible personal
 property acquired for a use exempt from the tax levied under this
 act at the time of acquisition to a use that is not exempt from the
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 tax levied under this act, whether the use is in whole or in part,
 or permanent or not permanent. A motor vehicle purchased for resale
 by a new vehicle dealer licensed under section 248(8)(a) of the
 Michigan vehicle code, 1949 PA 300, MCL 257.248, and not registered
 in the name of the dealer is not considered to be converted before
 sale or lease by that dealer.
       (r) "New motor vehicle" means that term as defined in section
 33a of the Michigan vehicle code, 1949 PA 300, MCL 257.33a.
       (s) "Recreational vehicle" means that term as defined in
 section 49a of the Michigan vehicle code, 1949 PA 300, MCL 257.49a.
       (t) "Dealer" means that term as defined in section 11 of the
 Michigan vehicle code, 1949 PA 300, MCL 257.11.
       (u) "Watercraft dealer" means a dealer as that term is defined
 in section 80102 of the natural resources and environmental
 protection act, 1994 PA 451, MCL 324.80102.
       (v) "Utility" means either of the following:
       (i) A person regulated by the Michigan public service
 commission as a utility.
       (ii) A person that operates equipment or facilities for
 producing, generating, transmitting, delivering, or furnishing
 electricity within this state for the public for compensation,
 regardless of the person's owner, ownership structure, or
 regulation by the Michigan public service commission.
       (2) Notwithstanding anything to the contrary in this act, the
 following applies only to delivery and installation charges
 described in subsection (1)(f)(iv) or (v), except that this
 subsection does not apply to delivery and installation charges
 involving or relating to the sale of electricity, natural gas, or
 artificial gas by a utility:
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       (a) Not later than July 25, 2023, the department shall cancel
 all outstanding balances related to such delivery and installation
 charges on notices of intent to assess that were issued under
 section 21 of 1941 PA 122, MCL 205.21, for the tax levied under
 this act and that were issued before April 26, 2023.
       (b) Not later than July 25, 2023, the department shall cancel
 all outstanding balances related to such delivery and installation
 charges on final assessments that were issued under section 22 of
 1941 PA 122, MCL 205.22, for the tax levied under this act, and
 that were issued before April 26, 2023.
       (c) Beginning April 26, 2023, the department shall not issue
 any new assessments for the tax levied under this act on such
 delivery and installation charges for any tax period before April
 26, 2023, that is open under the statute of limitations provided in
 section 27a of 1941 PA 122, MCL 205.27a.
       (3) Notwithstanding anything to the contrary in this act,
 subsection (1)(f)(xvi) is intended to be retroactive and to apply to
 all periods open under section 27a of 1941 PA 122, MCL 205.27a.
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Statutes affected: 
House Introduced Bill: 205.92