Revision: Dec. 3, 2019, 10:27 a.m.
HB 1492-FN-A-LOCAL - AS INTRODUCED
HOUSE BILL 1492-FN-A-LOCAL
SPONSORS: Rep. Cleaver, Hills. 35; Rep. King, Hills. 33
COMMITTEE: Ways and Means
This bill establishes a tax on the retail sales of certain categories of electronics, to be administered by the department of revenue administration. Revenues collected shall be deposited in the education trust fund for the purpose of state education funding.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty
Be it Enacted by the Senate and House of Representatives in General Court convened:
77-H:1 Definitions. In this chapter:
I. “Casual sale” means an isolated or occasional sale of an electronics item by a person who is not regularly engaged in the business of making sales at retail where the property was obtained by the person making the sale, through purchase or otherwise, for his or her own use.
II. “Commissioner” means the commissioner of the department of revenue administration.
III. “Person” means an individual, partnership, society, association, joint stock company, corporation, public corporation or public authority, estate, receiver, trustee, assignee, referee, and any other person acting in a fiduciary or representative capacity, whether appointed by a court or otherwise and any combination of the foregoing.
IV. “Persons required to collect tax” imposed by this chapter means and includes every vendor of taxable electronics.
V. “Purchaser” means a person who purchases taxable electronics at retail in this state.
VI. "Taxable electronics" means items of consumer electronics as follows:
(a) Television sets and related equipment therefore.
(b) Video games and all related play systems and equipment.
(c) Smart watches and similar products and related equipment therefore.
(d) Computers and related equipment, including desktop computers, tablet computers, laptop computers, printers, scanners, faxes. This shall include all related hardware and software.
(e) Cell phones and smart phones and related equipment therefore.
VII. “Vendor” means and includes a person making sales of taxable electronics which are taxed by this chapter.
77-H:2 Imposition of Tax. Except where exempted, there shall be paid a tax of 4.3 percent upon the receipts from the sale of taxable electronics purchased at retail in this state. The tax imposed shall be based on the price at which items are offered for sale.
77-H:3 Administration; Rulemaking. In addition to other powers granted to the commissioner in this chapter and in RSA 21-J, the commissioner shall:
I. Collect the taxes, interest, additions to tax, and penalties imposed under this chapter and RSA 21-J.
II. Adopt rules, pursuant to RSA 541-A, relative to:
(a) The administration of the electronics tax for education.
(b) The recovery of any tax, interest on tax, additions to tax, or the penalties imposed by RSA 77-H or RSA 21-J.
(c) The form of any returns, certificates, and documents and the data which they must contain for the correct determination on computation of receipts and the tax assessed thereon.
III. Require any person required to collect taxes to keep detailed records of all receipts, received, charged or accrued, including those claimed to be nontaxable, and also of the nature, type, value, and amount of all purchases, sales, and other facts relevant in determining the amount of tax due and to furnish that information upon request to the commissioner.
IV. Publish and maintain, as the commissioner deems necessary, lists of specific items which are found to be exempt from tax under RSA 77-H:2.
77-H:4 Liability for Tax. Every person required to collect any tax imposed by this chapter shall be personally liable for the tax imposed, collected, or required to be collected, under this chapter. That person shall have the same rights in collecting the tax from the purchaser or regarding nonpayment of the tax by the purchaser as if the tax were a part of the purchase price of the property, and payable at the same time; provided, however, that the commissioner shall be joined as a party in any action or proceeding brought to collect the tax.
77-H:5 Principal and Agent; Joint Liability. When, in the opinion of the commissioner, it is necessary for the efficient administration of this chapter to treat any salesperson or representative as the agent of the vendor, distributor, supervisor, or employer under whom the person operates or from whom the person obtains taxable electronics sold by the person or for whom the person solicits business, the commissioner may, in the commissioner’s discretion, treat such agent as the vendor jointly responsible with the principal, distributor, supervisor, or employer for the collection and payment of the tax.
77-H:6 Payment and Return by Purchaser.
I. Where any purchaser has failed to pay a tax imposed by this chapter to the person required to collect the same, then in addition to all other rights, obligations, and remedies provided, the tax shall be payable by the purchaser directly to the commissioner and it shall be the duty of the purchaser to file a return with the commissioner and to pay the tax to the commissioner within 20 days of the date the tax was required to be paid.
II. The commissioner may, whenever the commissioner deems it necessary for the proper enforcement of this chapter, provide by rule that purchasers shall file returns and pay directly to the commissioner any tax herein imposed, at such times as returns are required to be filed and paid by persons required to collect the tax.
77-H:7 Registration. The commissioner shall issue, without charge, to each vendor required to collect the tax under this chapter a certificate of authority empowering the registrant to collect the tax. Each certificate shall state the place of business to which it is applicable. The certificate of authority shall be prominently displayed in the place of business of the registrant. The certificate shall be nonassignable and nontransferable and shall be surrendered to the commissioner immediately upon the registrant’s ceasing to do business at the place named.
77-H:8 Restrictions on Advertising.
I. No person required to collect any tax imposed by this chapter shall advertise or hold out to any person or to the public in general, in any manner, directly or indirectly, that the tax is not considered as an element in the price payable by the customer, or that such person will pay the tax, that the tax will not be separately charged and stated to the customer, or that the tax will be refunded to the customer.
II. Whenever reference is made in placards or advertisements or in any other publications to any tax imposed by this chapter, the reference shall be in substantially the following form: “Electronics Tax for Education”.
77-H:9 Recordkeeping. Every person required to collect any tax imposed by this chapter shall keep records of every sale and of all amounts paid or charged or due thereon and of the tax payable thereon, in such form as the commissioner shall require. These records shall include a true copy of each sales slip, invoice, receipt, statement, or memorandum. The records shall be available for inspection and examination at any time upon demand by the commissioner or the commissioner’s duly authorized agent or employee and shall be preserved for a period of 3 years, except that the commissioner may consent to their destruction within that period or may require that they be kept longer.
77-H:10 Sales Not Covered. The following sales of electronics shall be exempt from the tax on imposed under RSA 77-H:2 :
I. Sales not within the taxing power of this state under the Constitution of the United States.
II. Casual sales.
III. Sale to the state of New Hampshire, or 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 it is the purchaser, user, or consumer, or when it is a vendor of services or property of a kind not ordinarily sold by private persons.
IV. Sales to the United States of America, any of its agencies and instrumentalities, insofar as it is immune from taxation when it is the purchaser, user, or consumer, or when it sells services or property of a kind not ordinarily sold by private persons.
V. Sales to organizations which qualify for exempt status under the provisions of Section 501(c)(3) of the United States Internal Revenue Code, as the same may be amended or redesignated, excepting sales, storage, or use in activities which are mainly commercial enterprises; provided, however:
(a) That the organization first shall have obtained a certificate from the commissioner stating that it is entitled to the exemption;
(b) That the sale is for the exempt purpose of such organization; and
(c) That the vendor keeps a record of the purchase price of each such separate purchase, the name of the purchaser, the date of each separate purchase, and the number of the certificate.
I. Every person required to collect or pay tax under this chapter shall on or before the fifteenth day of each month make and file a return for the preceding month with the commissioner. The return of a vendor of taxable sales shall show such vendor’s receipts from sales and also the aggregate value of items sold.
II. The commissioner may extend, for cause shown, the time of filing any return for a period not exceeding 3 months on such terms and conditions as the commissioner may require.
III. The commissioner may permit or require returns to be made covering other periods upon such dates as the commissioner specifies. In addition, the commissioner may require payment of tax liability at such intervals and based upon such classifications as the commissioner may designate. In prescribing the other periods to be covered by the return or intervals or classifications for payment of tax liability, the commissioner may take into account the dollar volume of tax involved as well as the need for insuring the prompt and orderly collection of the taxes imposed.
IV. The commissioner may require amended returns to be filed within 20 days after notice and to contain the information specified in the notice.
77-H:12 Payment of Tax.
I. Every person required to file a return under this chapter shall, at the time of filing the return, pay to the commissioner the taxes imposed by this chapter as well as all other moneys collected by such person under this chapter.
II. All the taxes for the period for which a return is required to be filed or for such lesser interval as shall have been designated by the commissioner, shall be due and payable to the commissioner on the date established for the filing of the return for that period, or on the date for such lesser interval as the commissioner has designated, without regard to whether a return is filed or whether the return which is filed correctly shows the amount of receipts, or the value of property or services sold or purchased or the taxes due thereon.
77-H:13 Collection of Tax From Purchaser. Every person required to collect the tax shall collect the tax from the purchaser when collecting the price to which it applies. If the purchaser is given any sales slip, invoice, receipt or other statement or memorandum of the price paid or payable, the tax shall be stated, charged, and shown separately on the first of the documents given to him or her. The tax shall be paid to the person required to collect it as trustee for and on account of the state.
77-H:14 Deferred Payment Purchases. The commissioner may provide that the tax upon receipts from purchases on the installment plan, seasonal purchases, or deferred payment purchases may be paid on the amount of each deferred payment and upon the date when the payment is received.
I. Claims for refund or credit may be made by a customer who has actually paid the tax or by a person required to collect the tax, who has collected and paid over the tax to the commissioner, provided that the claim is timely made in accordance with RSA 21-J:28-a and RSA 21-J:29. No actual refund of moneys shall be made to a person until such person establishes to the satisfaction of the commissioner, under such rules as the commissioner may adopt, that such person has repaid to the customer the amount for which the application for refund is made. The commissioner may, in lieu of any refund, allow credit on payments due from the claimant.
II. If the commissioner determines, on a petition for refund or otherwise, that a person has paid an amount of tax under this chapter which, as of the date of the determination, exceeds the amount of tax liability owing from the person to the state, with respect to the current and all preceding taxable periods, under any provision of this title, the commissioner shall forthwith refund the excess amount to the person together with interest as provided in RSA 21-J:28.
77-H:16 Proceedings to Recover Tax.
I. The commissioner may institute actions in the name of the state to recover any tax, interest on tax, additions to tax, or penalties imposed by this chapter.
II. In the collection of the tax imposed by this chapter, the commissioner may use all of the powers granted to tax collectors under RSA 80 for the collection of taxes, except that the tax imposed by this chapter shall not take precedence over prior recorded mortgages. The commissioner shall also have all of the duties imposed upon the tax collectors by RSA 80 that are applicable to the commissioner.
77-H:17 Suspension or Revocation of Certificates; Appeal.
I. The commissioner may, after notice and hearing, suspend or revoke the certificate of registration of any person required to collect the tax or may refuse to issue or renew any registration for failure to comply with this chapter or with any pertinent rules adopted hereunder.
II. Any person required to collect the tax aggrieved by a suspension, revocation, or refusal may appeal therefrom, in the same manner as provided in RSA 21-J:28-b for appeal for redetermination or reconsideration of assessments, within 10 days after written notice of the suspension, revocation, or refusal has been mailed or delivered to such person.
77-H:18 Disposition of Revenues. The state treasurer shall deposit all revenues collected by the commissioner under this chapter into the education fund established in RSA 198:39.
2 Education Trust Fund; Revenues From the Electronics Tax for Education. Amend RSA 198:39, I(l) to read as follows:
(l) Funds collected and paid over to the state treasurer by the department of revenue administration pursuant to RSA 79-H:18, relative to the electronics tax for education.
(m) Any other moneys appropriated from the general fund.
HB 1492-FN-A-LOCAL- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill imposes a tax of 4.3 percent upon the receipts from the sale of taxable electronics purchased at retail in this state and directs all revenues collected by the Department of Revenue Administration (DRA) from this tax into the Education Trust Fund for Education (RSA 198:39). The DRA states it is unable to determine the revenue the proposed tax would generate because the department does not have reliable data on the volume or price of sales of taxable electronics in the state.
The administration of this tax includes adopting rules and creating forms and certificates, collecting the tax and recovering any interest and penalties. The Department indicates it would need an appropriation of between $1,000,000 and $2,000,000 to implement the new tax into the existing tax system. The Department states it would also need 3 additional positions to administer this tax, including a Compliance Officer II (LG 21 step 1) and 2 Tax Auditor IV (LG 29, step 1) positions. The combined cost for the three positions is $261,000 in FY 2021; $266,000 in FY 2022 and $280,000 in FY 2023, assuming a starting date of July 1, 2020. The Department indicates it would not be able to fulfill the requirements of this bill by July 1, 2020.
Vendors are required to file a return and pay the tax due to the DRA on the 15th day of the month following the month in which the tax was collected. DRA is required to issue, at no charge, a certificate of authority to each vendor to allow the vendor to collect the electronics tax for education. This certificate is non-assignable and non-transferable and DRA may suspend or revoke this certificate. Advertising restrictions and record-keeping requirements are established for taxpayers. Exemptions from the tax and certificates for such exemption are established and DRA is charged with publishing and maintaining a list of non-taxable items.
This bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems. There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. However, the entities impacted have provided the potential costs associated with these penalties below.
Class B Misdemeanor
Class A Misdemeanor
It should be noted that average case cost estimates for FY 2021 and FY 2022 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types. An unspecified misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor.
Public Defender Program
Has contract with State to provide services.
Has contract with State to provide services.
Contract Attorney – Felony
Contract Attorney – Misdemeanor
Assigned Counsel – Felony
$60/Hour up to $4,100
$60/Hour up to $4,100
Assigned Counsel – Misdemeanor
$60/Hour up to $1,400
$60/Hour up to $1,400
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. The majority of indigent cases (approximately 85%) are handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%).
Department of Corrections
FY 2019 Average Cost of Incarcerating an Individual
FY 2019 Annual Marginal Cost of a General Population Inmate
FY 2019 Average Cost of Supervising an Individual on Parole/Probation
NH Association of Counties
County Prosecution Costs
Estimated Average Daily Cost of Incarcerating an Individual
$105 to $120
$105 to $120
Many offenses are prosecuted by local and county prosecutors. When the Department of Justice has investigative and prosecutorial responsibility or is involved in an appeal, the Department would likely absorb the cost within its existing budget. If the Department needs to prosecute significantly more cases or handle more appeals, then costs may increase by an indeterminable amount.
Department of Revenue Administration, Judicial Branch, Departments of Corrections and Justice, Judicial Council, and New Hampshire Association of Counties