2001 SESSION

01-0137

10/09

HOUSE BILL 562-FN-A-LOCAL

COMMITTEE: Ways and Means

ANALYSIS

This bill:

I. Establishes a tax on consumption and transactions at retail and wholesale for the purpose of funding an adequate education, reduces certain tax rates and increases certain exemptions.

II. Designates a portion of the tax revenues for accumulation in a state trust for education.

III. Provides for the distribution of interest income from the state trust for education for educational purposes until such time as the principal in the trust is sufficient to wholly fund public education costs.

IV. Requires the legislature to develop a plan for the repeal or reduction of current education funding sources when replaced by the state trust for education.

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01-0137

10/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand One

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Education Trust Fund; New Hampshire Education Tax Added. Amend RSA 6:12, I (www) to read as follows:

(www) Money received under RSA 77-A, [RSA 77-E,] RSA 78, RSA 78-A, [RSA 78-B,] RSA 78-D, RSA 83-F, RSA 198:46, and from the sweepstakes fund, which shall be credited to the education trust fund under RSA 198:39.

2 Duties of the Commissioner. Amend RSA 21-J:3, XV to read as follows:

XV. Establish and approve tax rates as required by law including the uniform education tax rate.

3 Education Property Tax; Rate Reduced. Amend RSA 76:3 to read as follows:

76:3 Education Property Tax. An annual education property tax at the uniform rate of [$6.60] $4.60 on each $1000 of the value of taxable property is hereby imposed on all persons and property taxable pursuant to RSA 72 and RSA 73, except property subject to tax under RSA 82 and RSA 83-F.

4 Individuals, Businesses, Fiduciaries. Amend RSA 77:3, I(a)-(c) to read as follows:

(a) Individuals who are inhabitants or residents of this state for any part of the taxable year whose gross interest and dividend income from all sources exceeds [$2,400] $5,200 during that taxable period.

(b) Partnerships, limited liability companies, associations, and trusts, the beneficial interest in which is not represented by transferable shares, whose gross interest and dividend income from all sources exceeds [$2,400] $5,200 during the taxable year, but not including a qualified investment company as defined in RSA 77-A:1, XXI, or a trust comprising a part of an employee benefit plan, as defined in the Employee Retirement Income Security Act of 1974, section 3.

(c) Fiduciaries deriving their appointment from a court of this state whose gross interest and dividend income from all sources exceeds [$2,400] $5,200 during the taxable year.

5 Increase in Exemption. Amend RSA 77:5, I to read as follows:

I. Income of [$2,400] $5,200.

6 Filing of Returns. Amend RSA 77:18, IV(a) and (b) to read as follows:

(a) Every individual whose total interest and dividend income is less than [$2,400] $5,200 for a taxable period.

(b) For joint filers whose total interest and dividend income is less than [$4,800] $10,400 for a taxable period.

7 Business Enterprise Tax; Rate Reduced. Amend RSA 77-E:2 to read as follows:

77-E:2 Imposition of Tax. A tax is imposed at the rate of [1/2] ¼ of one percent upon the taxable enterprise value tax base of every business enterprise. A 2/3 majority of those present and voting of each house of the general court shall be necessary to increase the tax rate under this section.

8 Transfer Tax; Rate Reduced. Amend RSA 78-B:1, I(b) to read as follows:

(b) The rate of the tax is [$.75] $.50 per $100, or fractional part thereof, of the price or consideration for such sale, grant, or transfer; except that where the price or consideration is $4,000 or less there shall be a minimum tax of $20. The tax imposed shall be computed to the nearest whole dollar.

9 New Chapter; New Hampshire Education Tax. Amend RSA by inserting after chapter 78-C the following new chapter:

CHAPTER 78-D

NEW HAMPSHIRE EDUCATION TAX

78-D:1 Definitions. In this chapter:

I. "Admissions" means the money or other consideration for admitting a person or vehicle to any place of amusement, sport, recreation, or physical fitness, and all dues and fees paid to private clubs and membership clubs providing amusement, sport, recreation, or physical fitness.

II. "Business activity" means a group of actions performed by a person or persons for the purpose of earning income or profit from such actions and includes every operation which forms a part of, or a step in, the process of earning income or profit from such group of actions. The actions ordinarily include, but are not limited to, the receipt of money, property, or other items of value and the incurring or payment of expenses.

III. "Commissioner" means the commissioner of the department of revenue administration.

IV. "Consumer" means any person, including governmental units, purchasing or leasing at retail or wholesale, whether or not for resale, any tangible personal property or service for consumption in this state.

V. "Consuming" or "consumption" means the ownership, possession, utilization, use, or employment of tangible personal property or the acquisition or enjoyment of services.

VI. "Construction" or "constructing" means building, altering, repairing, or demolishing any building or structure upon real estate and includes leveling or clearing land, excavating earth, drilling wells of any type, or similar activity upon real estate.

VII. "Department" means the department of revenue administration.

VIII. "Gross receipts" means the total amount of money or the value of other consideration received from the sale at retail or wholesale of tangible personal property, from the leasing of property and the performance of services in this state, and from selling services performed outside New Hampshire, the product of which is initially used in this state. In an exchange in which the money or value of other consideration received does not represent the value of the property or service exchanged, "gross receipts" means the fair market value of the property or service exchanged.

IX. "In this state" means within the legal jurisdictional boundaries of New Hampshire and includes all territory within these limits owned by or ceded to the United States.

X. "Lease," "leasing," or "rental" means any arrangement whereby, for a consideration, property is possessed or employed for or by a person other than the owner of the property. The terms "lease," "leasing," or "rental" shall include any admittance to or use or enjoyment of property for which an admission is charged.

XI. "Manufacturing" means combining or processing components or materials to increase their value for sale in the ordinary course of business, but does not include construction.

XII. "Property" means real property, tangible personal property, licenses, franchises, patents, trademarks, and copyrights.

XIII. "Real property" or "real estate" means the land, improvements thereto, and fixtures thereon.

XIV. "Retail sale" or "sale at retail" means the sale to a consumer for consumption of tangible personal property or services and includes all such transactions that may be made in lieu of retail sale or sale at retail.

XV.(a) "Service" means all activities engaged in for other persons for a consideration, which activities involve predominately the performance of labor or intellectual activity as distinguished from selling or leasing property. The term "service" includes construction activities. The commissioner shall adopt rules relative to the determination of such service component. The term "service" does not include labor or intellectual activity performed for or on behalf of other persons when:

(1) The person performing the activity is an employee as defined in section 3401(c) of the United States Internal Revenue Code. Any person from whom an employer, as defined in section 3401(d) of the United States Internal Revenue Code, is required to withhold for federal income tax purposes shall prima facie be deemed an employee; or

(2) The person is an independent contractor performing the activity exclusively for a single business enterprise. The commissioner shall adopt rules relative to the determination of whether an independent contractor qualifies for employee status under this section.

(b) The term "service" shall not include services performed by doctors of medicine or osteopathy, dentists, chiropractors, optometrists, podiatrists, nurses, or other health practitioners, or services provided by hospitals, general medical, osteopathic, dental, chiropractic, optometric, podiatric, or other health care clinics, or nursing or personal care facilities, medical or dental laboratories, home health care services, kidney dialysis centers, or specialty outpatient facilities.

XVI. "Taxable receipts" means gross receipts less the money or value of other consideration received from the sale or transfer of the following:

(a) Property subject to the tax on meals and rooms, pursuant to RSA 78-A.

(b) Property subject to the tax on transfer of real property, pursuant to RSA 78-B.

(c) Property subject to taxes imposed on liquor, under RSA Title XIII.

(d) Property subject to tax pursuant to RSA 260:32, relative to motor fuels.

(e) Property subject to tax pursuant to RSA 260:52, relative to special motor fuels.

(f) Property subject to taxation pursuant to RSA 432:9, relative to the airways toll on aviation fuels, and RSA 432:9-a, relative to the airways toll on other aviation fuels.

(g) Property subject to taxation pursuant to RSA 79, relative to forest conservation and taxation, but only to the extent such property remains in its original condition immediately following the point at which such property became taxable under said chapter.

(h) Property subject to the tax on communication services, pursuant to RSA 82-A.

XVII. "United States Internal Revenue Code" means the United States Internal Revenue Code of 1986, as amended, without the rules, regulations, forms, and procedures of the United States Internal Revenue Service. The rules, regulations, forms, and procedures of the United States Internal Revenue Service may, however, be used by the commissioner of revenue administration in formulating rules for adoption under RSA 541-A.

XVIII. "Use" means the exercise of any right or power over tangible personal property incident to the ownership thereof or interest therein, except it does not include the sale at retail of such property.

XIX. "Vendor" means any person, including a governmental unit engaged in the business activity of making sales at retail or wholesale.

XX. "Wholesale" means sales of property or services made other than as a retail sale to a consumer.

78-D:2 Imposition of Tax.

I. A tax is imposed on the sale at retail or wholesale of tangible personal property or services in this state to consumers at the rate of 3 percent upon the taxable receipts from such sale.

II. A compensating tax is imposed on the consumption of tangible personal property or services in this state at the rate of 3 percent of the value of such tangible personal property or service.

78-D:3 Collection of Tax; Small Vendors Exempted.

I. Every vendor carrying on business activity in this state shall collect and monthly remit the tax to the state as provided in RSA 78-D:7. Vendors whose average monthly tax collections do not exceed $100 may apply to the commissioner to remit taxes annually. Approval of such requests shall be at the discretion of the commissioner.

II. Notwithstanding the provisions of paragraph I, vendors with less than $10,000 in gross receipts from sales at retail or wholesale annually shall not be required to collect and remit tax on their sales at retail or wholesale.

78-D:4 Liability for Tax; Prior Purchases Exempted.

I. Except as provided in paragraph III, every consumer shall be liable for the tax and such liability shall not be extinguished until the tax has been paid to the state, except that payment to a vendor required to collect the tax pursuant to RSA 78-D:3 is sufficient to relieve the consumer from further liability for the tax.

II. Except as provided in paragraph III, any tax required to be collected, and any tax received by a vendor, shall become a personal debt of the vendor until paid to the state. The vendor shall be relieved of further liability for such taxes in the event that the tax is paid directly to the state by the consumer or another person.

III. Consumers shall not be liable for nor vendors required to collect tax on any tangible personal property or services purchased or used in this state prior to the effective date of this chapter.

78-D:5 Presumption of Taxability and Value.

I. To prevent evasion of the compensating tax and the duty to collect it, it is presumed that tangible personal property purchased or sold by any person for delivery into this state is purchased or sold for consumption in this state.

II. In determining the amount of compensating tax due on the consumption of tangible personal property, it is presumed, in the absence of preponderant evidence of another value, that the value means the total amount of money or the fair market value of other consideration paid for such property exclusive of any time-price differential; provided however, in an exchange in which the amount of money paid does not represent the value of the tangible personal property or service purchased, the compensating tax shall be calculated on the fair market value of the tangible personal property or service purchased.

III. In determining the amount of compensating tax due on the consumption of a service, it is presumed, in the absence of preponderant evidence of another value, that the value means the total amount of money or fair market value of other consideration paid for the service; provided however, in an exchange in which the amount paid does not represent the value of the service purchased, the compensating tax shall be calculated based on the fair market value of the service purchased.

78-D:6 Financial Services Transactions.

I. For purposes of this section the following definitions shall apply:

(a) "Billing address" means the location indicated by the consumer to which any notice, statement, invoice, or bill relating to the consumer's account with the vendor is mailed.

(b) "Commercial domicile" means the place from which a trade or business is principally managed and directed.

(c) "Financial institution" means any state or national bank, bank holding company, savings and loan, federal savings bank, credit association, credit union, or other similar institution.

(d) "Financial products vendor" means any vendor of stocks, bonds, securities, or other similar products who is not a financial institution.

(e) "Financial services transaction" means any transaction with respect to which the vendor is a financial institution or a financial products vendor.

II. The taxes imposed under RSA 78-D:2 shall apply to any financial services transaction within New Hampshire. Notwithstanding any other provision of this chapter, financial services transactions are within New Hampshire if:

(a) The consumer is an individual or business organization engaged in a trade or business which maintains its commercial domicile in the state; or

(b) The consumer is an individual whose residence is in this state.

(c) In the absence of clear evidence of commercial domicile or residence relative to subparagraphs (a) or (b) a transaction shall be presumed to be within New Hampshire if the consumer's billing address is within the state.

III. The taxable amount of receipts from financial service transactions shall be calculated by deducting from the gross receipts the amount of direct cost to the vendor in procuring the subject matter of the transaction. In the event that payment of the receipt is made in installments, a proportional amount of direct cost shall be allocated and deducted from each installment.

IV. The tax on financial services transaction receipts paid in installments may be collected in one lump sum at the commencement of the installment payments or pro rata over the number of installments.

78-D:7 Tax Returns; Date Payment Due.

I. Except as provided in this section, on or before the twenty-eighth day of February and the thirtieth day of each other month, every vendor liable to collect and pay over the taxes imposed by this chapter shall make a return to the department for the preceding month on a form prescribed by the commissioner.

II. Any vendor who has applied for and been granted permission to remit taxes annually shall file a return for each calendar year on or before February 15 of the following calendar year.

III. Any ex-vendor who ceases to engage in business activity in this state, including making sales at retail for consumption, and is thereby not responsible for filing returns under this chapter, shall file a final return with the department not more than one month after discontinuing such activity. This requirement shall apply notwithstanding any other provision of this chapter regarding the time within which to file a return.

IV. If the commissioner finds that the information required for the making of an accurate return cannot reasonably be compiled by a vendor within the period provided in this section, the commissioner may grant an extension of time for the filing of such return. Any such extension shall be granted for a period not to exceed 31 calendar days. The granting of such extension may be conditioned upon the payment by the vendor of an amount of money equal to the amount estimated by the commissioner to be due with the return when filed under extension. All such estimated payments shall be credited against the vendor's liabilities under this chapter.

V. The vendor shall pay to the department the amount of tax imposed by this chapter at the time the return is due.

78-D:8 Tax Returns by Consumer; Date Payment Due.

I. Consumers may apply for permission to pay tax directly to the state. Direct payment shall be at the commissioner's discretion.

II. When a consumer does not pay the tax imposed by this chapter to a vendor, such consumer shall file a return with the department and pay the compensating tax upon the taxable property or services consumed during the taxable month. Such return and payment shall be due on or before the twenty-eighth day of February and the thirtieth day of each other month following the month in which consumption occurs. The return shall be filed on a form prescribed by the department and shall contain such information as the department may reasonably require.

78-D:9 Books, Records, Papers, and Other Documents.

I. Every vendor liable for collection of tax under this chapter shall provide and keep the necessary records to show the amount of gross receipts, taxable receipts, and any exclusions, exemptions, or deductions therefrom of any tangible personal property or services sold by said vendor.

II. Every consumer making direct tax payments to the department shall provide and keep the necessary records to show the value of any tangible personal property or services consumed by such consumer.

III. Every vendor maintaining a place of business in this state or required to file or actually filing in this state under this chapter and every consumer making direct tax payments to the department under this chapter shall keep books, records, papers, and other documents which are adequate to reflect the information required by this chapter to be reported to the department by the filing of timely returns with the department.

IV. All books, records, and other papers and documents required to be kept by this chapter shall, at all times during business hours of the day, be subject to inspection by the department.

78-D:10 Determination of Tax; Additional Returns.

I. If a return required by this chapter is not filed, or if a return when filed, is incorrect or insufficient, the amount of tax due shall be determined and assessed by the commissioner from any information available. If necessary, the tax may be estimated on the basis of external indices, such as stock on hand, purchases, rental paid, location, scale of rents or charges, comparable rents or charges, type of accommodations and service, number of employees, or other factors.

II. The commissioner may provide by rule for the exclusion from taxable receipts of amounts representing sales where the contract of sale has been canceled, the property has been returned, or the receipt or charge has been ascertained to be uncollectable. If the tax has been paid upon that receipt or charge, the commissioner may provide for refund or credit of the tax so paid.

III. When the commissioner has reason to believe that a vendor has failed to file a return or to include any part of the taxable receipts of sales by such vendor in a filed return, the commissioner may require the vendor to file a return or a supplementary return showing such additional information as the commissioner prescribes. The making of such additional return does not relieve the vendor of any penalty for failure to make a correct original return, or relieve it from liability for interest imposed under RSA 21-J:28 or for any additional charges imposed by the commissioner. This section shall not be construed to modify or extend the statute of limitations provided in RSA 21-J:29.

78-D:11 Administration; Rulemaking.

I. The commissioner shall collect the taxes imposed under this chapter, interest on tax, additions to tax, and penalties imposed, and pay over to the state treasurer the amount of funds collected under this chapter as follows:

(a) Two-thirds of the amount received shall be for deposit in the education trust fund established in RSA 198:39.

(b) One-third of the amount received shall be for deposit in the state trust for education pursuant to RSA 198-A.

II. The commissioner shall adopt rules, under RSA 541-A, relative to:

(a) The form of the return and the data which it must contain for the correct computation of the taxable receipts from sales of tangible personal property and services and the tax assessed.

(b) The administration of the New Hampshire education tax.

(c) The recovery of any tax, interest on tax, additions to tax, or penalties imposed by RSA 78-D or RSA 21-J.

78-D:12 Surety Bonds.

I. When the commissioner deems it necessary to protect the revenues due under this chapter, the commissioner may, after notice and hearing, require any vendor required to collect the tax imposed by this chapter to file with the commissioner a bond issued by a surety company authorized by the New Hampshire insurance department to do business in this state, in an amount fixed by the commissioner, to secure the payment of any tax, interest, or penalties due, or which may become due. The vendor shall file a bond within 10 days after the department has issued and mailed such notice. Surety bonds may be required in situations such as, but not limited to, failure to file returns, failure to make payments with returns at the time required by law, tender by a vendor of checks returned for insufficient funds, failure to pay interest and penalties assessed, vendors who are itinerant, transient, or temporary, and any other situation which, in the discretion of the commissioner, renders the collection of the tax in jeopardy.

II. The surety on such bond shall be discharged from the liability accruing on the bond after the expiration of 60 days from the date on which the surety shall have logged with the department a written request to be so discharged; but such request shall not discharge such surety from any liability already accrued or which shall accrue before the expiration of said 60-day period. The duration of surety bonds shall be for one year only, unless the requirement is canceled or revised by the commissioner before the expiration of the one-year period.

III. In lieu of a bond, cash in an amount prescribed by the commissioner may be deposited with the state treasurer who may, at any time, upon instructions from the commissioner and without notice to the depositor, apply the cash deposited to any tax or interest or penalties due. Cash deposited in lieu of a surety bond shall not earn interest.

IV. Failure to comply with the provisions of this section shall result in the suspension of the vendor's license, as provided in RSA 78-D:20.

78-D:13 Collection of Tax From Consumer. Every vendor required to collect the tax shall collect the tax from the consumer when collecting the price to which it applies. If the consumer is given any sales slip, invoice, receipt, or other statement or memorandum of the price paid or payable, the tax shall either be stated, charged, and shown separately on the first of the documents given to said consumer or the document shall state that the tax is included in the price. The form and content of any sales slip, invoice, receipt, or other statement or memorandum of the price paid or payable relative to financial transactions which contain a taxable service component shall be determined by the commissioner according to rules adopted under RSA 541-A. The tax shall be paid to the vendor required to collect it as trustee for and on account of the state.

78-D:14 Deferred Payment Purchases. The commissioner may provide that the tax upon receipts from purchases on 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.

78-D:15 Exemptions.

I. The receipts or uses exempted in paragraph II from either the tax imposed under RSA 78-D:2, I or the compensating tax imposed under RSA 78-D-2, II are not exemptions from both taxes unless explicitly stated otherwise.

II.(a) Food products for human consumption and clothing purchased at retail for human use shall be exempt from the taxes imposed by this chapter.

(b) Any property or service for which the total price therefor without tax is $.50 or less shall be exempt from the taxes imposed by this chapter; provided, however that the purchase by a consumer in a single transaction of multiple items each $.50 or less in total price shall be aggregated to determine the applicability of this exemption.

(c) Rent payments for lease or rental of real estate shall be exempt from the taxes imposed by this chapter, except that this subparagraph shall not be construed to exempt admissions from the taxes imposed by this chapter.

(d) Tuition payments shall be exempt from the taxes imposed by this chapter.

(e) Any property or service purchased or used by the following shall be exempt from the taxes imposed by this chapter:

(1) The United States or any agency, department, or instrumentality thereof;

(2) The state of New Hampshire or any political subdivision thereof;

(3) Any foreign nation or agency, instrumentality, or political subdivision thereof, but only when required by a treaty in force to which the United States is a party;

(4) Any nonprofit organization expressly made exempt from income taxation under section 501(c)(3) of the United States Internal Revenue Code to the extent that such organization does not engage in business activity constituting unrelated trade or business as defined by section 513 of the United States Internal Revenue Code.

(f) Any tangible personal property consisting of personal or household effects of an individual brought into this state in connection with the establishment by such individual of an initial residence in this state shall be exempt from the compensating tax imposed under RSA 78-D:2, II.

(g) Any tangible personal property brought into this state for use by a nonresident for such nonresident's non-business use while temporarily within this state shall be exempt from the compensating tax imposed under RSA 78-D:2, II.

(h) Receipts from the isolated or occasional sale of or leasing of property or a service by persons who are neither regularly engaged nor holding themselves out as engaged in the business of selling or leasing the same or similar property or service shall be exempt from the tax imposed under RSA 78-D:2, I.

(i) Property used exclusively in interstate commerce shall be exempt from the compensating tax imposed under RSA 78-D:2, II.

(j) Receipts from dues of nonprofit social, fraternal, political, trade, labor, or professional organizations and business leagues shall be exempt from the tax imposed under RSA 78-D:2, I. For purposes of this subparagraph, "dues" means amounts that a member of an organization pays at recurring intervals to retain membership in an organization or business league where such amounts are used for the general maintenance and upkeep of the organization or business league.

(k) Receipts from services provided by nonprofit organizations expressly made exempt from income taxation under section 501(c)(3) of the United States Internal Revenue Code shall be exempt from the taxes imposed by this chapter to the extent that such receipts are not from services provided by such nonprofit organization as a result of unrelated trade or business as defined by section 513 of the United States Internal Revenue Code.

(l) Property and services used exclusively in manufacturing and purchased from out-of-state vendors shall be exempt from the compensating tax imposed under RSA 78-D:2, II.

(m) Services purchased from out-of-state vendors for use by the consumer outside New Hampshire shall be exempt from the compensating tax imposed under RSA 78-D:2, II to the extent of such use out-of-state. The value of services purchased out-of-state but used or consumed both within and without New Hampshire shall be apportioned according to the percentage of the total sales, including charges for services, made within this state. Sales of tangible personal property are made in this state if the property is delivered or shipped to a purchaser, other than the United States government, within this state regardless of f.o.b. point or other conditions of sale, or the property is shipped from an office, store, warehouse, factory, or other place of storage in this state and (1) the purchaser is the United States government, or (2) the business organization is not taxable in the state of the purchaser. Sales other than sales of tangible personal property are in this state if the income-producing activity is performed in this state, or the income-producing activity is performed both in and outside this state and a greater proportion of the income-producing activity is performed in this state than in any other state, based on costs of performance.

(n) Services provided by vendors engaged in administration or management of employee benefit plans or deferred compensation plans under section 401 or section 457 of the United States Internal Revenue Code shall be exempt from the taxes imposed by this chapter.

78-D:16 Credits.

I. If on property bought outside this state, a gross receipts, sales, compensating, or similar tax has been levied by another state or political subdivision thereof on the transaction by which the person using the property in New Hampshire acquired the property, or a compensating, use, or similar tax has been levied by another state on the use of the property subsequent to its acquisition by the person using the property in New Hampshire and such tax has been paid, the amount of such tax paid may be credited against any compensating tax due this state on the same property.

II. If on services performed outside the state, a gross receipts, sales, or similar tax has been levied by another state or a political subdivision thereof and such tax has been paid, the amount of the tax paid may be credited against any tax due this state on the receipts from the sale in New Hampshire of the product of the services performed outside this state. The amount of credit shall not exceed an amount equal to the rate of tax imposed under RSA 78-D:2 multiplied by the amount subject to tax by both New Hampshire and the other state or political subdivision of that state.

78-D:17 Certificate or Affidavit of Exemption. Unless a vendor shall have taken from the purchaser a certificate, signed by the purchaser and bearing the purchaser's name and address and the number of the purchaser's registration certificate, to the effect that the property was purchased for resale, or the purchaser prior to taking delivery furnishes to the vendor any affidavit, statement, or additional evidence, documentary or otherwise, which the commissioner may require demonstrating that the purchaser is an exempt person described in RSA 78-D:15, the purchase shall be deemed a taxable purchase. Provided, however, the commissioner may authorize a purchaser, who acquires tangible personal property or services under circumstances which make it impossible at the time of acquisition to determine the manner in which the tangible personal property or services will be used, to pay the tax directly to the commissioner and waive the collection of the tax by the vendor. Provided, further, the commissioner shall authorize any person who acquires tangible personal property consisting of materials and supplies for use in construction, to pay the tax directly to the commissioner and waive the collection of the tax by the vendor. No such authority shall be granted or exercised except upon application to the commissioner and the issuance by the commissioner of a direct payment permit. If a direct payment permit is granted, its use shall be subject to conditions specified by the commissioner and the payment of tax on all acquisitions pursuant to the permit shall be made directly to the commissioner by the permit holder.

78-D:18 Proceedings to Recover Taxes.

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. The provisions of RSA 80:26 apply to the sale of land for the payment of taxes due under this chapter, and the state treasurer is authorized to purchase the land for the state. If the state purchases the land, the state treasurer shall certify the purchase to the governor, and the governor shall draw a warrant for the purchase price out of any money in the treasury not otherwise appropriated.

78-D:19 Registration.

I. On or before January 1, 2002, or in the case of vendors commencing business or opening new places of business after that date, within 3 days after the commencement or opening, every vendor required to collect any tax imposed by this chapter and every vendor purchasing tangible personal property for resale shall file with the commissioner a license application in a form prescribed by the commissioner. The commissioner shall issue, without charge, to each applicant a license of authority empowering the applicant to collect the tax. Each license shall state the place of business to which it is applicable. The license shall be prominently displayed in the place of business of the vendor. A vendor who has no regular place of doing business shall attach the certificate to the vendor cart, stand, truck, or other merchandising device, or carry it on the vendor person. The certificate shall be nonassignable and nontransferable and shall be surrendered to the commissioner immediately upon the vendor ceasing to do business at the place named.

II. Any person who is not otherwise required to collect any tax imposed by this chapter and who makes sales to persons within the state of tangible personal property or services, the use of which is subject to tax under this chapter, may, if such person so elects, file a license application with the commissioner who may, in the commissioner's discretion and subject to such conditions as the commissioner may impose, issue to such person a license of authority to collect the compensating tax imposed by this chapter.

78-D:20 Suspension or Revocation of Licenses; Appeal.

I. The commissioner may, after notice and hearing, suspend or revoke the license of any vendor required to collect the tax or may refuse to issue or renew any license 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.

III. If the appealing person required to collect the tax files a bond running to the state as provided in RSA 78-D:12, then the suspension or revocation shall be inoperative during the appeal.

78-D:21 Refunds.

I. Claims for refund or credit may be made by a consumer 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 vendor until such person establishes to the satisfaction of the commissioner, under such rules as the commissioner may adopt, that such vendor has repaid to the consumer 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 claim 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.

78-D:22 Liens. If any person required to pay or collect and transmit a tax under this chapter neglects or refuses to pay the same after demand, the amount, together with all penalties and interest provided for in this chapter and together with any costs that may accrue in addition thereto, shall be a lien in favor of the state of New Hampshire upon all property and rights to property, whether real or personal, belonging to such person. Such lien shall arise at the time demand is made by the commissioner of taxes and shall continue until the liability for such sum with interest and costs is satisfied or becomes unenforceable. No lien upon real estate for taxes imposed by this chapter is valid and binding against any person other than the taxpayer until notice of such lien stating the name and address of the taxpayer and the amount of the tax due shall have been filed and recorded in the registry of deeds in the grantor index in the county in which such real estate is located. Notwithstanding the provisions of any other law, the lien shall continue and shall be valid and binding until the liability for the sum, with interest and costs, is satisfied or becomes unenforceable.

10 Utility Property Tax; Rate Reduced. Amend RSA 83-F:2 to read as follows:

83-F:2 Tax Imposed. For taxable periods beginning April 1, 2001, a tax is imposed upon the value of utility property at the rate of [$6.60] $4.60 on each $1000 of such value, to be assessed annually as of April 1, and every year thereafter, and paid in accordance with this chapter.

11 Legacies and Successions; Tax Rate Reduced. Amend RSA 86:6, I to read as follows:

I. All property within the jurisdiction of the state, real or personal, and any interest therein, belonging to domiciliaries of the state; and all real estate within the state, or any interest therein, belonging to persons who are not domiciliaries of the state; which shall pass by will, or by the laws regulating intestate successions, or by deed, grant, bargain, sale, or gift, made in contemplation of death, or made or intended to take effect in possession or enjoyment at or after the death of the grantor or donor, to any person, absolutely or in trust, shall be subject to a tax of [18] 8 percent of its fair market value for the use of the state, except as provided in paragraphs II and III and RSA 86:9-a.

12 Education Trust Fund. Amend RSA 198:39 to read as follows:

198:39 Education Trust Fund Created and Invested.

I. The state treasurer shall establish an education trust fund in the treasury. Moneys in such fund shall not be used for any purpose other than to distribute adequate education grants to municipalities' school districts pursuant to RSA 198:42, [and] to provide education property tax hardship relief under RSA 198:55, and to make taxpayer refunds under RSA 78-D:21. The state treasurer shall deposit into this fund immediately upon receipt:

(a) Funds certified to the state treasurer by the commissioner of revenue administration pursuant to RSA 77-A:20-a, relative to business profits taxes.

(b) [Funds certified to the state treasurer by the commissioner of revenue administration pursuant to RSA 77-E:14, relative to business enterprise tax.] Funds collected and paid over to the state treasurer by the department of revenue administration pursuant to RSA 78-D:11, I.

(c) Funds collected and paid over to the state treasurer by the commissioner of revenue administration pursuant to RSA 78-A:26, III relative to the tax on motor vehicle rentals.

(d) Funds collected and paid over to the state treasurer by the department of revenue administration pursuant to RSA 78:32, relative to tobacco taxes.

(e) [Funds certified to the state treasurer by the commissioner of revenue administration pursuant to RSA 78-B:13, relative to real estate transfer taxes.

(f)] Funds collected and paid over to the state treasurer by the department of revenue administration pursuant to RSA 83-F:7, I, relative to the utility property tax.

[(g)] (f) The full amount of excess education property tax payments from the department of revenue administration pursuant to RSA 198:46.

[(h)] (g) All moneys due the fund in accordance with RSA 284:21-j, relative to sweepstakes.

[(i)] (h) Tobacco settlement funds in the amount of $40,000,000 annually.

[(j)] (i) The school portion of any revenue sharing funds distributed pursuant to RSA 31-A:4 which were apportioned to school districts in the property tax rate calculations in 1998.

[(k)] (j) Any other moneys appropriated from the general fund.

II. The education trust fund shall be nonlapsing. The state treasurer shall invest that part of the fund which is not needed for immediate distribution in short-term interest-bearing investments. The income from these investments shall be returned to the fund.

13 New Chapter; State Trust for Education. Amend RSA by inserting after chapter 198 the following new chapter:

CHAPTER 198-A

STATE TRUST FOR EDUCATION

198-A:1 Trust Established.

I. There is hereby established in the office of the treasurer the New Hampshire state trust for education which shall be kept distinct and separate from all other funds. Revenues designated by the commissioner of revenue administration for deposit in the state trust for education pursuant to RSA 78-D:11, II(b), less any annual administrative costs, shall be credited to the trust fund to provide a source of funds as described in this chapter to public school districts within the state.

II. The state treasurer shall be the trustee of the trust fund established in this chapter. The treasurer shall invest the trust fund in accordance with RSA 6:8. Any earnings on trust fund moneys not authorized for distribution under RSA 198-A:2 shall be added to the trust fund.

III. All moneys in the trust fund shall be nonlapsing. The principal of the trust fund shall not be appropriated or encumbered in any way. All interest income of the trust fund shall be appropriated for purposes of providing funds for public school districts in the state according to RSA 198-A.

198-A:2 Distribution of Interest Income. The earnings of the state trust for education may be appropriated only by act of the legislature. Such distribution shall be made directly to the public school districts of the state based on each districts per capita share of resident pupils, as defined in RSA 198:38, X. Schools districts receiving a distribution shall use the funds solely for the provision of the public schools. Distributions under this section shall be treated as unanticipated funds under RSA 198:20-b.

198-A:3 Accumulation of Principal; Legislative Authorization.

I. The principal held in the state trust for education shall accumulate, and shall not be subject to legislative appropriation, until such time as the annual amount of interest income realized by the state trust for education meets or exceeds the amount necessary to fund an adequate education as determined by RSA 198:40.

II. Upon the accumulation of sufficient principal pursuant to paragraph I, the general court shall develop a plan for the reduction, repeal, or recharacterization of the sources of education funding in the state including, but not limited to, all state funds deposited in the education trust fund established in RSA 198:39. Such plan shall include the repeal of RSA 78-D.

198-A:4 Oversight of the Director of Charitable Trusts. The director of charitable trusts in the department of justice shall have the duty to oversee the proper management of the state trust for education and the distribution and use of funds of the trust. The director of charitable trusts may bring suit to enforce the provisions of this chapter.

14 Repeal. The following are repealed:

I. RSA 77-E:14, relative to distribution of funds to the education trust fund from the increase in the business enterprise tax rate.

II. RSA 78-B:13, relative to distribution of funds to the education trust fund from the increase in the real estate transfer tax rate.

15 Repeal of Prospective Repeals of Education Property Tax, Education Property Tax Hardship Relief Provisions, Adequate Education Grant Determination Provisions, and Related Laws. The following are repealed:

I. 1999, 338:21, relative to the repeal of RSA 76:3, RSA 198:40, and RSA 198:41.

II. 1999, 338:22, relative to the repeal of RSA 21-I:18, I(l) and RSA 198:50-55.

III. 1999, 338:25, I, relative to the effective date of 1999, 338:21.

IV. 1999, 338:25, II, relative to the effective date of 1999, 338:22.

16 Effective Date.

I. Sections 2, 3 and 10 of this act shall take effect April 1, 2001.

II. The remainder of this act shall take effect July 1, 2002.

LBAO

01-0137

2/5/01

HB 562-FN-A-LOCAL - FISCAL NOTE

FISCAL IMPACT: