LB291 LB291
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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 291
Introduced by Linehan, 39.
Read first time January 15, 2019
Committee: Revenue
1 A BILL FOR AN ACT relating to revenue and taxation; to amend sections
2 77-2701.13, 77-2701.16, 77-2701.32, 77-2705, and 77-2708, Reissue
3 Revised Statutes of Nebraska; to redefine terms relating to sales
4 and use taxes; to change provisions relating to sales and use tax
5 permits and collection; to provide an operative date; to repeal the
6 original sections; and to declare an emergency.
7 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 77-2701.13, Reissue Revised Statutes of Nebraska,
2 is amended to read:
3 77-2701.13 (1) Engaged in business in this state means conducting
4 operations in this state that exceed the limitations of the commerce
5 clause and due process clause of the United States Constitution and
6 includes, but is not limited to, any of the following:
7 (a) (1) Maintaining, occupying, or using, permanently or
8 temporarily, directly or indirectly, or through a subsidiary or agent, by
9 whatever name called, an office, place of distribution, sales or sample
10 room or place, warehouse, storage place, or other place of business in
11 this state;
12 (b) (2) Having any representative, agent, salesperson, canvasser,
13 facilitator, or solicitor operating in this state under the authority of
14 the retailer or its subsidiary for the purpose of selling, delivering, or
15 taking orders for any property;
16 (c) (3) Deriving rentals from a lease of property in this state by
17 any retailer;
18 (d) (4) Soliciting retail sales of property from residents of this
19 state on a continuous, regular, or systematic basis by means of
20 advertising which is broadcast into from or relayed from a transmitter
21 within this state or distributed from a location within this state or
22 installed onto an electronic device located in this state;
23 (e) (5) Soliciting or facilitating orders from or sales to residents
24 of this state for property by mail, if the activities solicitations are
25 continuous, regular, seasonal, or systematic or and if the retailer
26 benefits from any banking, financing, debt collection, or marketing
27 activities occurring in this state or benefits from the location in this
28 state of authorized installation, servicing, or repair facilities;
29 (f) (6) Being owned or controlled by the same interests which own or
30 control any retailer engaged in business in the same or similar line of
31 business in this state; or
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1 (g) (7) Maintaining or having a franchisee or licensee operating
2 under the retailer's trade name in this state if the franchisee or
3 licensee is required to collect the tax under the Nebraska Revenue Act of
4 1967.
5 (2) A retailer who lacks a physical presence in this state, and who
6 operates a web site or other digital medium or media to execute sales to
7 purchasers of property subject to sales and use taxes in this state, or
8 who operates or uses a multivendor marketplace platform that acts as an
9 intermediary by facilitating sales between a seller and the purchaser of
10 property subject to sales or use taxes in this state, shall be deemed to
11 be engaged in business in this state if:
12 (a) Such retailer made or facilitated total retail sales of property
13 in this state that exceeded one hundred thousand dollars in the previous
14 or current calendar year; or
15 (b) Such retailer made or facilitated retail sales in this state in
16 two hundred or more separate transactions in the previous or current
17 calendar year.
18 Sec. 2. Section 77-2701.16, Reissue Revised Statutes of Nebraska, is
19 amended to read:
20 77-2701.16 (1) Gross receipts means the total amount of the sale or
21 lease or rental price, as the case may be, of the retail sales of
22 retailers.
23 (2) Gross receipts of every person engaged as a public utility
24 specified in this subsection, as a community antenna television service
25 operator, or as a satellite service operator or any person involved in
26 connecting and installing services defined in subdivision (2)(a), (b), or
27 (d) of this section means:
28 (a)(i) In the furnishing of telephone communication service, other
29 than mobile telecommunications service as described in section
30 77-2703.04, the gross income received from furnishing ancillary services,
31 except for conference bridging services, and intrastate
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1 telecommunications services, except for value-added, nonvoice data
2 service.
3 (ii) In the furnishing of mobile telecommunications service as
4 described in section 77-2703.04, the gross income received from
5 furnishing mobile telecommunications service that originates and
6 terminates in the same state to a customer with a place of primary use in
7 Nebraska;
8 (b) In the furnishing of telegraph service, the gross income
9 received from the furnishing of intrastate telegraph services;
10 (c)(i) In the furnishing of gas, sewer, water, and electricity
11 service, other than electricity service to a customer-generator as
12 defined in section 70-2002, the gross income received from the furnishing
13 of such services upon billings or statements rendered to consumers for
14 such utility services.
15 (ii) In the furnishing of electricity service to a customer-
16 generator as defined in section 70-2002, the net energy use upon billings
17 or statements rendered to customer-generators for such electricity
18 service;
19 (d) In the furnishing of community antenna television service or
20 satellite service, the gross income received from the furnishing of such
21 community antenna television service as regulated under sections 18-2201
22 to 18-2205 or 23-383 to 23-388 or satellite service; and
23 (e) The gross income received from the provision, installation,
24 construction, servicing, or removal of property used in conjunction with
25 the furnishing, installing, or connecting of any public utility services
26 specified in subdivision (2)(a) or (b) of this section or community
27 antenna television service or satellite service specified in subdivision
28 (2)(d) of this section, except when acting as a subcontractor for a
29 public utility, this subdivision does not apply to the gross income
30 received by a contractor electing to be treated as a consumer of building
31 materials under subdivision (2) or (3) of section 77-2701.10 for any such
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1 services performed on the customer's side of the utility demarcation
2 point.
3 (3) Gross receipts of every person engaged in selling, leasing, or
4 otherwise providing intellectual or entertainment property means:
5 (a) In the furnishing of computer software, the gross income
6 received, including the charges for coding, punching, or otherwise
7 producing any computer software and the charges for the tapes, disks,
8 punched cards, or other properties furnished by the seller; and
9 (b) In the furnishing of videotapes, movie film, satellite
10 programming, satellite programming service, and satellite television
11 signal descrambling or decoding devices, the gross income received from
12 the license, franchise, or other method establishing the charge.
13 (4) Gross receipts for providing a service means:
14 (a) The gross income received for building cleaning and maintenance,
15 pest control, and security;
16 (b) The gross income received for motor vehicle washing, waxing,
17 towing, and painting;
18 (c) The gross income received for computer software training;
19 (d) The gross income received for installing and applying tangible
20 personal property if the sale of the property is subject to tax. If any
21 or all of the charge for installation is free to the customer and is paid
22 by a third-party service provider to the installer, any tax due on that
23 part of the activation commission, finder's fee, installation charge, or
24 similar payment made by the third-party service provider shall be paid
25 and remitted by the third-party service provider;
26 (e) The gross income received for services of recreational vehicle
27 parks;
28 (f) The gross income received for labor for repair or maintenance
29 services performed with regard to tangible personal property the sale of
30 which would be subject to sales and use taxes, excluding motor vehicles,
31 except as otherwise provided in section 77-2704.26 or 77-2704.50;
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1 (g) The gross income received for animal specialty services except
2 (i) veterinary services, (ii) specialty services performed on livestock
3 as defined in section 54-183, and (iii) animal grooming performed by a
4 licensed veterinarian or a licensed veterinary technician in conjunction
5 with medical treatment; and
6 (h) The gross income received for detective services.
7 (5) Gross receipts includes the sale of admissions. When an
8 admission to an activity or a membership constituting an admission is
9 combined with the solicitation of a contribution, the portion or the
10 amount charged representing the fair market price of the admission shall
11 be considered a retail sale subject to the tax imposed by section
12 77-2703. The organization conducting the activity shall determine the
13 amount properly attributable to the purchase of the privilege, benefit,
14 or other consideration in advance, and such amount shall be clearly
15 indicated on any ticket, receipt, or other evidence issued in connection
16 with the payment.
17 (6) Gross receipts includes the sale of live plants incorporated
18 into real estate except when such incorporation is incidental to the
19 transfer of an improvement upon real estate or the real estate.
20 (7) Gross receipts includes the sale of any building materials
21 annexed to real estate by a person electing to be taxed as a retailer
22 pursuant to subdivision (1) of section 77-2701.10.
23 (8) Gross receipts includes the sale of and recharge of prepaid
24 calling service and prepaid wireless calling service.
25 (9) Gross receipts includes the retail sale of digital audio works,
26 digital audiovisual works, digital codes, and digital books delivered
27 electronically if the products are taxable when delivered on tangible
28 storage media. A sale includes the transfer of a permanent right of use,
29 the transfer of a right of use that terminates on some condition, and the
30 transfer of a right of use conditioned upon the receipt of continued
31 payments.
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1 (10) Gross receipts includes any receipts from sales of tangible
2 personal property made over a multivendor marketplace platform that acts
3 as the intermediary by facilitating sales between a seller and the
4 purchaser, typically by processing the transaction.
5 (11) (10) Gross receipts does not include:
6 (a) The amount of any rebate granted by a motor vehicle or motorboat
7 manufacturer or dealer at the time of sale of the motor vehicle or
8 motorboat, which rebate functions as a discount from the sales price of
9 the motor vehicle or motorboat; or
10 (b) The price of property or services returned or rejected by
11 customers when the full sales price is refunded either in cash or credit.
12 Sec. 3. Section 77-2701.32, Reissue Revised Statutes of Nebraska, is
13 amended to read:
14 77-2701.32 (1) Retailer means any seller.
15 (2) To facilitate the proper administration of the Nebraska Revenue
16 Act of 1967, the following persons have the duties and responsibilities
17 of sellers for the purposes of sales and use taxes:
18 (a) Any person in the business of making sales subject to tax under
19 section 77-2703 at auction of property owned by the person or others;
20 (b) Any person collecting the proceeds of the auction, other than
21 the owner of the property, together with his or her principal, if any,
22 when the person collecting the proceeds of the auction is not the
23 auctioneer or an agent or employee of the auctioneer. The seller does not
24 include the auctioneer in such case;
25 (c) Every person who has elected to be considered a retailer
26 pursuant to subdivision (1) of section 77-2701.10;
27 (d) Every person operating, organizing, or promoting a flea market,
28 craft show, fair, or similar event; and
29 (e) Every person engaged in the business of providing any service
30 defined in subsection (4) of section 77-2701.16; and .
31 (f) Every person operating a multivendor marketplace platform that
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1 acts as the intermediary by facilitating sales between a seller and the
2 purchaser, typically by processing the transaction.
3 (3) For the proper administration of the Nebraska Revenue Act of
4 1967, the following persons do not have the duties and responsibilities
5 of a seller for purposes of sales and use taxes:
6 (a) Any person who leases or rents films when an admission tax is
7 charged under the Nebraska Revenue Act of 1967;
8 (b) Any person who leases or rents railroad rolling stock
9 interchanged pursuant to the provisions of the federal Interstate
10 Commerce Act;
11 (c) Any person engaged in the business of furnishing rooms in a
12 facility licensed under the Health Care Facility Licensure Act in which
13 rooms, lodgings, or accommodations are regularly furnished for a
14 consideration or a facility operated by an educational institution
15 established under Chapter 79 or Chapter 85 in which rooms are regularly
16 used to house students for a consideration for periods in excess of
17 thirty days; or
18 (d) Any person making sales at a flea market, craft show, fair, or
19 similar event when such person does not have a sales tax permit and has
20 arranged to pay sales taxes collected to the person operating,
21 organizing, or promoting such event.
22 Sec. 4. Section 77-2705, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 77-2705 (1) Except as provided in subsection (10) of this section,
25 every retailer shall register with the Tax Commissioner and give:
26 (a) The name and address of all agents operating in this state;
27 (b) The location of all distribution or sales houses or offices or
28 other places of business in this state;
29 (c) The name and address of any officer, director, partner, limited
30 liability company member, or employee, other than an employee whose
31 duties are purely ministerial in nature, or any person with a substantial
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